2. • The Judicial remedies may be classified under two
broader heads: (1) Constitutional Remedies (Article 32,
136,226 and 227) & Curative Petitions under article
142 (2) Statutory remedies – sometimes statutes itself
provide for judicial remedies against particular kinds of
administrative actions.
• Any statutory remedy does not disturb the structure of
constitutional remedies.
• Article 32 and 226 are Writ Jurisdiction of the Supreme
Court and High Courts. Article 136 provides for special
leave by Supreme Court and article 227 is Supervisory
jurisdiction of High Courts.
3. Writ Jurisdictions (Article 32 and 226)
(Introduction)
• Writ Jurisdiction of High Courts are wider than Writ
Jurisdiction of the Supreme Court. Supreme issues
writs for the enforcement of fundamental rights but
High Courts can issue writs for enforcement of
fundamental rights or for any other purposes.
• Non- Exhaustion of other alternative remedies
generally are not the grounds for refusing to intervene
in the cases of violation of fundamental rights.
However, in cases other than fundamental rights, High
Courts have evolved a principle that non-exhaustion of
other alternative remedies may be the ground for
denying a request for issuance of writs under article
226 of the Constitution.
4. • There is no specific time limits for filing writ
petitions but generally there should not be
any unreasonable or inordinate delay without
any justification. The Courts helps the vigilant
and not the indolent.
5. Writ of Habeas Corpus
• Great constitutional privilege or security to civil liberty.
• It is a Latin term means “you must have the body”
• The writ affords an effective means of immediate release of a person held in
unlawful custody of public or private authorities.
• Generally, it ascertains the legality of detention of individuals but SC in Sunil Batra
(II) Case has widened its scope by giving relief against inhuman and cruel
treatment meted out to prisoners in Jail. Court observed: “the dynamic role of
judicial remedies ..imparts to the habeas corpus writ a vitality and operational
utility that makes the healing presence of the law live up to its reputation as
bastion of liberty even within the secrecy of the hidden cell.”
• The writ is issued to the authority which has the aggrieved person in its custody.
• There are many approaches as to the timings of checking the illegality of the
detention. Whether at the time of detention, or at the time of filling of petition or
at the time of hearing. Though there is no decisive pronouncement on these
points. But it appears from Court’s approach that the decisive time would be the
time of filling of petition for Habeas Corpus. Court generally checks the validity of
the detention order at the time of filling of petition of Habeas Corpus.
6. • In Kanu Sanyal v District Magistrate (1973) Supreme Court held that
it is not essential to produce the person alleged to be unlawfully
detained before the Court at the time of hearing of his/her petition
of Habeas Corpus or before that. Court concluded that habeas
corpus is essentially a procedural writ. It deals with the machinery
of justice and not with substantive laws. The object of the writ is to
secure the release of a person who is illegally restrained of his
liberty. It provides a speedy and effective remedy to a person under
unlawful detention. The most important feature of the writ is its
peremptoriness and the production of the body of the person
alleged to be wrongfully detained is only subsidiary to this main
purpose.
• The point is that body need not be produced but Court may issue
writ and direct the authority to produce the body before it.
7. The Writ of Quo Warranto
• Means what is your authority. Its basic purpose is
to judicially control the executive action of
appointments to public offices under the relevant
statutory provisions. The writ is issued to the
holder of the public office to show to the Court
under what authority he/she is holding the
particular office. It is not issued to the appointing
authority but to the appointed authority i.e. The
alleged usurper of the public office. Malafide of
the appointing authority is not a ground to issue
the writ.
8. Writ of Mandamus
• Mandamus is a command issued by Court to an
authority directing it to perform a public duty. It
is employed to enforce a duty the performance of
which is imperative and not optional or
discretionary with the authority concerned.
Mandamus is generally issued to Public bodies
but in certain circumstances it can also be issued
to private bodies engaged in performing public
functions. (Anadi Mukta Sadguru Shree Muktajee
...Trust v. V R Rudani(1989, SC))
9. Anadi Mukta Sadguru Case
• A Public Trust was running a college that had
affiliation under the Gujarat University Act. The
Trust refused to implement the settlement award
between University teachers’ Association and the
University authorities and also closed the college
without giving any terminal benefits to the
academic staff of the college.
• College teachers approached the High Court and
High Court accepted the petitions and rejected
the arguments of Trust. Thus... Matter reached in
the Supreme Court...
10. Contd...
• Court observes that...
There, however, the prerogative writ of mandamus is confined only to public authorities to compel
performance of public duty. The ‘public authority’ for them means everybody which is created by
statute - and whose powers and duties are defined by statute. So government departments, local
authorities, police authorities, and statutory undertakings and corporations, are all ‘public
authorities’. But there is no such limitation for our High Courts to issue the writ ‘in the nature of
mandamus’. Article 226 confers wide powers on the High Courts to issue writs in the nature of
prerogative writs. This is a striking departure from the English law. Under Article 226, writs can be
issued to “any person or authority”. It can be issued “for the enforcement of any of the
fundamental rights and for any other purpose”
The term “authority” used in Article 226, in the context, must receive a liberal meaning unlike the term
in Article 12. Article 12 is relevant only for the purpose of enforcement of fundamental rights under
Article 32. Article 226 confers power on the High Courts to issue writs for enforcement of the
fundamental rights as well as non-fundamental rights. The words “any person or authority” used in
Article 226 are, therefore, not to be confined only to statutory authorities and instrumentalities of
the State. They may cover any other person or body performing public duty. The form of the body
concerned is not very much relevant. What is relevant is the nature of the duty imposed on the
body. The duty must be judged in the light of positive obligation owed by the person or authority to
the affected party. No matter by what means the duty is imposed, if a positive obligation exists
mandamus cannot be denied.
11. • Mandamus cannot be denied on the ground that the duty to be
enforced is not imposed by the statute. Commenting on the
development of this law, Professor de Smith states: “To be
enforceable by mandamus a public duty does not necessarily have to
be one imposed by statute. It may be sufficient for the duty to have
been imposed by charter, common law, custom or even contract.”
Judicial Review of Administrative Action, 4th Edn., p. 540. We
share this view. The judicial control over the fast expanding maze of
bodies affecting the rights of the people should not be put into
watertight compartment. It should remain flexible to meet the
requirements of variable circumstances. Mandamus is a very wide
remedy which must be easily available ‘to reach injustice wherever
it is found’. Technicalities should not come in the way of granting
that relief under Article 226.
• The Supreme Court therefore, rejected the contention urged for the
appellants on the maintainability of the writ petition.
12. Contd.
• In Praga Tools Corporation v. C.A. Imanual [(1969) 3 SCR 773], SC
said that a mandamus can be issued against a person or body to carry
out the duties placed on them by the statutes even though they are
not public officials or statutory body. It was observed:
• “It is, however, not necessary that the person or the authority on
whom the statutory duty is imposed need be a public official or an
official body. A mandamus can issue, for instance, to an official of a
society to compel him to carry out the terms of the statute under or
by which the society is constituted or governed and also to
companies or corporations to carry out duties placed on them by the
statutes authorising their undertakings. A mandamus would also lie
against a company constituted by a statute for the purpose of
fulfilling public responsibilities.”
13. • Common Cause v. Union of India (AIR 2003 SC 4493)
(No mandamus for exercise of discretionary power)
The question whether the Court can issue a mandamus
directing the Executive to notify the Act / Amendment
came up for consideration in this case. In relation to the
Delhi Rent Act, 1995, the Supreme Court held that when
the legislature itself had vested the power in the Central
Government to notify the date from which the Act would
come into force, then, the Central Government is entitled
to take into consideration various facts while considering
when the Act should be brought into force and no
mandamus can be issued to the Central Government to
issue the notification bringing the Act into force.
14. Writ of Certiorari
• Surya Dev Rai v. Ram Chander Rai
This appeal questions the impacts of amendment in Section 115 CPC
brought by Act 46 of 1999 w.e.f. 1/7/2002, on the power and
jurisdiction of the High Court to entertain petitions seeking a writ of
certiorari under 226 of the constitution or invoking the power of
superintendence under 227 of the Constitution as against similar
orders, acts or proceedings of the Courts subordinate to the High
Courts, against which earlier remedy of filing civil revision under
section 115 of CPC was available (and this has been taken away by
the said amendment). Is an aggrieved person completely deprived
of the remedy of judicial review, if he has lost at the hands of the
original court and the appellate court, even if a case of gross failure
of justice can be made out?
In this case, Court in very detail discussed the writs of certiorari and
supervisory jurisdiction of High Courts under article 227 and made
the following observations.
15. Writ of Certiorari (Contd.)
• H.W.R. Wade and C.F. Forsyth define certiorari in these words:
• “Certiorari is used to bring up into the High Court the decision of some inferior
tribunal or authority in order that it may be investigated. If the decision does not
pass the test, it is quashed - that is to say, it is declared completely invalid, so that
no one need respect it.
• The underlying policy is that all inferior courts and authorities have only limited
jurisdiction or powers and must be kept within their legal bounds. This is the
concern of the Crown, for the sake of orderly administration of justice, but it is a
private complaint which sets the Crown in motion.” [Administrative Law, 8th Ed., p.
591].
• The most useful instruments which the Court found ready to hand were the
prerogative writs. But not unnaturally the control exercised was strictly legal, and
no longer political. Certiorari would issue to call up the records of justices of the
peace and commissioners for examination in the King’s Bench and for quashing if
any legal defect was found. At first there was much quashing for defects of form on
the record i.e. for error on the face. Later, as the doctrine of ultra vires developed,
that became the dominant principle of control.
16. • Lord Chancellor Viscount Simon in Ryots of Garabandho v. Zamindar of Parlakimedi
[AIR 1943 PC 164]:
“The ancient writ of certiorari in England is an original writ which may issue out of a
superior court requiring that the record of the proceedings in some cause or
matter pending before an inferior court should be transmitted into the superior
court to be there dealt with. The writ is so named because, in its original Latin
form, it required that the King should ‘be certified’ of the proceedings to be
investigated, and the object is to secure by the exercise of the authority of a
superior court, that the jurisdiction of the inferior tribunal should be properly
exercised. This writ does not issue to correct purely executive acts, but, on the
other hand, its application is not narrowly limited to inferior ‘courts’ in the strictest
sense. Broadly speaking, it may be said that if the act done by the inferior body is a
judicial act, as distinguished from being a ministerial act, certiorari will lie. The
remedy, in point of principle, is derived from the superintending authority which
the Sovereign’s superior courts, and in particular the Court of King’s Bench,
possess and exercise over inferior jurisdictions. This principle has been
transplanted to other parts of the King’s dominions, and operates, within certain
limits, in British India.”
17. Grounds of issuance of Certiorari
• In Hari Vishnu Kamath v. Ahmad Ishaque following four propositions were
laid down -
• (1) Certiorari will be issued for correcting errors of jurisdiction;
• (2) Certiorari will also be issued when the court or tribunal acts illegally in
the exercise of its undoubted jurisdiction, as when it decides without
giving an opportunity to the parties to be heard, or violates the principles
of natural justice;
• (3) The court issuing a writ of certiorari acts in exercise of a supervisory
and not appellate jurisdiction. One consequence of this is that the court
will not review findings of fact reached by the inferior court or tribunal,
even if they be erroneous;
• (4) An error in the decision or determination itself may also be amenable
to a writ of certiorari if it is a manifest error apparent on the face of the
proceedings, e.g., when it is based on clear ignorance or disregard of the
provisions of law. In other words, it is a patent error which can be
corrected by certiorari but not a mere wrong decision.
18. • In Nagendra Nath Bora v. Commr. of Hills Division and Appeals [AIR 1958 SC 398], the constitution
Bench of the Supreme Court observed that:
“The common law writ, now called the order of certiorari, which has also been adopted by our
Constitution, is not meant to take the place of an appeal where the statute does not confer a right
of appeal. Its purpose is only to determine, on an examination of the record, whether the inferior
tribunal has exceeded its jurisdiction or has not proceeded in accordance with the essential
requirements of the law which it was meant to administer. Mere formal or technical errors, even
though of law, will not be sufficient to attract this extraordinary jurisdiction. Where the errors
cannot be said to be errors of law apparent on the face of the record, but they are merely errors in
appreciation of documentary evidence or affidavits, errors in drawing inferences or omission to
draw inference or in other words errors which a court sitting as a court of appeal only, could have
examined and, if necessary, corrected and the Appellate Authority under the statute in question
has unlimited jurisdiction to examine and appreciate the evidence in the exercise of its appellate or
revisional jurisdiction and it has not been shown that in exercising its powers the Appellate
Authority disregarded any mandatory provisions of the law but what can be said at the most was
that it had disregarded certain executive instructions not having the force of law, there is no case
for the exercise of the jurisdiction under Article 226.”
19. Difference between a writ of certiorari
under 226 and the Supervisory
jurisdiction of High Court under 227
• Article 227 confers power of superintendence on every High Court over all the courts and tribunals
within the territories of the such High Court. This is the supervisory power of both administrative
and judicial activities. The following are the general differences between Certiorari under 226 and
supervisory power under 227.
First, the writ of certiorari is an exercise of its original jurisdiction by the High Court; exercise of
supervisory jurisdiction is not an original jurisdiction and in this sense it is akin to appellate,
revisional or corrective jurisdiction.
Second, in a writ of certiorari, the record of the proceedings having been certified and sent up by the
inferior court or tribunal to the High Court, the High Court if inclined to exercise its jurisdiction, may
simply annul or quash the proceedings and then do no more. In exercise of supervisory jurisdiction,
the High Court may not only quash or set aside the impugned proceedings, judgment or order but it
may also make such directions as the facts and circumstances of the case may warrant, maybe, by
way of guiding the inferior court or tribunal as to the manner in which it would now proceed
further or afresh as commended to or guided by the High Court. In appropriate cases the High
Court, while exercising supervisory jurisdiction, may substitute such a decision of its own in place of
the impugned decision, as the inferior court or tribunal should have made.
Third, the jurisdiction under Article 226 of the Constitution is capable of being exercised on a prayer
made by or on behalf of the party aggrieved; the supervisory jurisdiction is capable of being
exercised suo motu as well.
20. • Supreme Court observed that: (1) Amendment by Act
46 of 1999 with effect from 1-7-2002 in Section 115 of
the Code of Civil Procedure cannot and does not affect
in any manner the jurisdiction of the High Court under
Articles 226 and 227 of the Constitution.
• (2) Interlocutory orders, passed by the courts
subordinate to the High Court, against which remedy of
revision has been excluded by CPC Amendment Act 46
of 1999 are nevertheless open to challenge in, and
continue to be subject to, certiorari and supervisory
jurisdiction of the High Court.
21. Contd.
• (3) Certiorari, under Article 226 of the Constitution, is issued for
correcting gross errors of jurisdiction i.e. when a subordinate court
is found to have acted (i) without jurisdiction - by assuming
jurisdiction where there exists none, or (ii) in excess of its jurisdiction
- by overstepping or crossing the limits of jurisdiction, or (iii) acting
in flagrant disregard of law or the rules of procedure or acting in
violation of principles of natural justice where there is no procedure
specified, and thereby occasioning failure of justice.
• (4) Supervisory jurisdiction under Article 227 of the Constitution is
exercised for keeping the subordinate courts within the bounds of
their jurisdiction. When a subordinate court has assumed a
jurisdiction which it does not have or has failed to exercise a
jurisdiction which it does have or the jurisdiction though available is
being exercised by the court in a manner not permitted by law and
failure of justice or grave injustice has occasioned thereby, the High
Court may step in to exercise its supervisory jurisdiction.
22. Contd.
• (5) Be it a writ of certiorari or the exercise of supervisory
jurisdiction, none is available to correct mere errors of fact
or of law unless the following requirements are satisfied: (i)
the error is manifest and apparent on the face of the
proceedings such as when it is based on clear ignorance or
utter disregard of the provisions of law, and (ii) a grave
injustice or gross failure of justice has occasioned thereby.
• (6) A patent error is an error which is self-evident i.e. which
can be perceived or demonstrated without involving into
any lengthy or complicated argument or a long-drawn
process of reasoning. Where two inferences are reasonably
possible and the subordinate court has chosen to take one
view, the error cannot be called gross or patent.
23. Contd.
• (7) The power to issue a writ of certiorari and the supervisory jurisdiction are to be
exercised sparingly and only in appropriate cases where the judicial conscience of
the High Court dictates it to act lest a gross failure of justice or grave injustice
should occasion. Care, caution and circumspection need to be exercised, when any
of the above said two jurisdictions is sought to be invoked during the pendency of
any suit or proceedings in a subordinate court and the error though calling for
correction is yet capable of being corrected at the conclusion of the proceedings in
an appeal or revision preferred there against and entertaining a petition invoking
certiorari or supervisory jurisdiction of the High Court would obstruct the smooth
flow and/or early disposal of the suit or proceedings. The High Court may feel
inclined to intervene where the error is such, as, if not corrected at that very
moment, may become incapable of correction at a later stage and refusal to
intervene would result in travesty of justice or where such refusal itself would result
in prolonging of the lis.
• (8) The High Court in exercise of certiorari or supervisory jurisdiction will not
convert itself into a court of appeal and indulge in reappreciation or evaluation of
evidence or correct errors in drawing inferences or correct errors of mere formal or
technical character.
24. Contd.
• (9) In practice, the parameters for exercising jurisdiction to issue a
writ of certiorari and those calling for exercise of supervisory
jurisdiction are almost similar and the width of jurisdiction exercised
by the High Courts in India unlike English courts has almost
obliterated the distinction between the two jurisdictions. While
exercising jurisdiction to issue a writ of certiorari, the High Court
may annul or set aside the act, order or proceedings of the
subordinate courts but cannot substitute its own decision in place
thereof. In exercise of supervisory jurisdiction the High Court may
not only give suitable directions so as to guide the subordinate court
as to the manner in which it would act or proceed thereafter or
afresh, the High Court may in appropriate cases itself make an order
in supersession or substitution of the order of the subordinate court
as the court should have made in the facts and circumstances of the
case.
25. Writ of Prohibition
• “Historically, prohibition was a writ whereby the royal courts of common
law prohibited other courts from entertaining matters falling within the
exclusive jurisdiction of the common law courts; certiorari was issued to
bring the record of an inferior court into the King’s Bench for review or to
remove indictments for trial in that court; mandamus was directed to
inferior courts and tribunals, and to public officers and bodies, to order the
performance of a public duty. All three were called prerogative writs;
• Certiorari lies to bring decisions of an inferior court, tribunal, public
authority or any other body of persons before the High Court for review so
that the Court may determine whether they should be quashed, or to
quash such decisions. The order of prohibition is an order issuing out of the
High Court and directed to an inferior court or tribunal or public authority
which forbids that court or tribunal or authority to act in excess of its
jurisdiction or contrary to law. Both certiorari and prohibition are
employed for the control of inferior courts, tribunals and public
authorities.”
26. Prohibition (Contd.)
• There is fundamental distinction between writs of
certiorari and prohibition. They both are issued at
different stages of proceedings. When an inferior
Court takes up for hearing a matter over which it
has no jurisdiction the person against whom
hearing is taken can move the Superior court for
writ of prohibition. On the other hand if the
Court hears the matter and gives the decision,
the party would need to move to superior Court
to quash the decision/order on the ground of
want of jurisdiction.
27. Curative Petition
• Rupa Ashok Hurra v Ashok Hurra and Ors.
Whether the judgement of this Court in Civil Appeal can be regarded as
nullity and whether the Supreme Court should entertain a writ petition
under article 32 of the Constitution against the validity of its own
judgement and that even after the petition of review of the said
judgement has already been dismissed by this Court.
The Constitution Bench has to find balance between two ideas important for
administration of Justice: first, the certainty and finality of the
judgements, and second to avoid gross miscarriage of justice.
Court observes that the judgement of this Court in Civil Appeal against which
the review petition has already been dismissed can not be challenged
under article 32 but to prevent abuse of its process and to cure a gross
miscarriage of justice, Supreme Court may reconsider its judgement in
exercise of its inherent powers under article 142 of the Constitution.
The Court also provided many safeguards to entertain such curative petition
under its inherent powers so that floodgates are not opened for filling
second review in the guise of curative petition.
28. • Following are the procedural safeguards evolved by the Supreme
Court for filling curative petition. Court observed that:
the Court should not entertain an application seeking reconsideration
of an order of this Court which has become final on dismissal of a
review petition. It is neither advisable nor possible to enumerate all
the grounds on which such a petition may be entertained.
Nevertheless, a petitioner is entitled to relief ex debito justitiae if
he/she establishes (1) violation of principles of natural justice in
that he was not a party to the lis but the judgment adversely
affected his interests or, if he was a party to the lis, he was not
served with notice of the proceedings and the matter proceeded as
if he had notice and (2) where in the proceedings a learned Judge
failed to disclose his connection with the subject-matter or the
parties giving scope for an apprehension of bias and the judgment
adversely affects the petitioner.
29. • The petitioner, in the curative petition, shall aver specifically that the
grounds mentioned therein had been taken in the review petition and that
it was dismissed by circulation. The curative petition shall contain a
certification by a Senior Advocate with regard to the fulfillment of the
above requirements.
• The Supreme Court was of the view that since the matter relates to re-
examination of a final judgment of this Court, though on limited ground,
the curative petition had to be first circulated to a Bench of the three
senior-most Judges and the Judges who passed the judgment complained
of, if available. It is only when a majority of the learned Judges on this
Bench conclude that the matter needs hearing that it should be listed
before the same Bench (as far as possible) which may pass appropriate
orders. It shall be open to the Bench at any stage of consideration of the
curative petition to ask a senior counsel to assist it as amicus curiae. In the
event of the Bench holding at any stage that the petition is without any
merit and vexatious, it may impose exemplary costs on the petitioner.
30. Special Leave to the Supreme Court
under Article 136
• This is plenary appellate jurisdiction of the Supreme Court. It does not
confer a right to appeal upon a party but merely vests a discretion to the
Court. Its nature is very comprehensive and extensive and so it must be
exercised exceptionally and with proper caution. This jurisdiction of the
Supreme Court is corrective in nature and hence the Court is not restricted
in its approach. As per this, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or
tribunal in the territory of India. However it does any apply to any
judgment, determination, sentence or order passed or made by any court
or tribunal constituted by or under any law relating to the Armed Forces
• However, one must apprise that while exercising power under article 136,
the SC is not a Court of appeal as considered in normal circumstances. It
does not re-appreciate, review and reweight the evidence which has been
appreciated by the trial Court and by the High Court. But, if it found that
evidences has been appreciated in mechanical ways and not properly, it
can undertake the task
31. • Supreme Court generally does not entertain
the petitions under this article unless the
petitioner has exhausted all other remedies
available to him. The non-exhaustion of
alternative remedy is one of the ground for
rejecting the petition. However this rule is not
inflexible and can be diluted in special
circumstances.
32. • Commenting upon the nature of power of the Supreme
Court under article 136, SC observes that:
“It is not possible to define with any precision the
limitations on the exercise of the discretionary
jurisdiction vested in this Court by the constitutional
provision made under article 136. The limitations,
whatever they be, are implicit in the nature and
character of the power itself. It being an exceptional
and overriding power, naturally it has to be exercised
sparingly and with caution and only in special and
extraordinary situations. Beyond that it s not possible
to fetter the exercise of this power by any set of
formula or rule.”
33. Statutory Remedies
• General Statutory Remedies: civil suit under
s.9 of the Civil Procedure Code
• Injunctions
• Declaratory Actions : Declaring the rights of
the parties without giving any relief. (Sec. 34 &
35 of Specific Relief Act 1963)
34. • However, sometimes the statutes that confers
decision making powers on the administrative
authorities may exclude the Court’s power to
review those decisions. Though it is not possible
against constitutional remedies but it can very
well be done with respect to statutory remedies.
CPC and Specific Relief Acts are statutes and so
there application can be circumvented in
particular circumstances by another statute. The
provisions of the statutes limiting or excluding
the statutory remedies against administrative
actions are termed as ouster clauses.
35. • The scope of such ouster clauses depends upon construction of the
provision enacted for the purpose by the Courts. Normal
jurisdiction of the Civil Courts are ousted only on the matters
strictly lying within the ambit of such ouster clause, it does not
restrict the Court’s action on such matters that are itself nullity as
per the statutes.
• Halsbury’s laws of England sums up the legal position as follows:
“It is the duty of persons upon whom statutory powers are conferred
to keep strictly within those powers. If such persons act in excess of
their powers, they are to the extent to which they exceed their
powers, deprived of any protection conferred upon them by the
statute in question, and will be subject to the ordinary remedies
existing at common law. An injunction may be granted to restrain
an act in excess of statutory powers and a person injured by such an
act may be entitled to recover damages from the persons
purporting to exercise the power.
