Special
remedy against Administration: The
Writ Petition is a special remedy provided to people of India for enforcement
of their fundamental and statutory rights against the Govt and its various
agencies, and in exceptional circumstances, the writ remedy may be invoked
against private bodies, who are either discharging pubic functions, or if they
are acting contrary to law and in collusion with Administration.
Against
whom Writ can be invoked: Writ jurisdiction under Article 226 and Article 227
jurisdiction of High Courts may also be invoked against decisions and Orders
passed by judicial, quasi judicial bodies and administrative bodies discharging
quasi judicial functions, where they have acted wholly without jurisdiction, or
in excess of it, or in violation of the principles of natural justice, or have
refused to exercised the jurisdiction vested in them, or where there is an
error apparent on the fact of the record, and such act, omission, error or
excess has resulted in manifest injustice.
The
nature of rights which can be protected under Writ: The very purpose of introducing this special remedy
is to safeguard peoples’ certain fundamental and key rights recognized under
our Constitution, like the (i) Life and personal liberty, (ii) protection of
rights conferred under various statutes and laws (that is – protection of law
as guaranteed under Article 14 of the Constitution) (iii) protection against arbitrary
and discriminatory laws (that is – equality before law as guaranteed under
Article 14 of the Constitution) (iv) freedom of speech and expression, (v) right
to practice his religion, (vi) his profession of choice, carry on business, (vii)
right to assemble peaceably etc.;
And for the protection of these valuable rights, the
remedy has to be speedy and inexpensive.
Object of
Writ: The procedure prescribed
for Writ is summary in nature and the Courts are empowered to grant relief at
the threshold, on prima facie satisfaction of infringement or even threat of
infringement of aforesaid valuable rights. The idea behind furnishing this
summary remedy is to secure that law of the land is implicitly obeyed and that
various authorities and tribunals act within the limits of their respective jurisdiction.
Types of
Writ: There are five types of
Writs being contemplated. They are, Habeas Corpus, Mandamus, Certiorari,
prohibition and Quo warranto. The Habeas Corpus is invoked to challenge
unlawful detention by Police or by any other person; Mandamus is invoked to ask
for directions to any Public Authority, Govt, or to private persons discharging
public functions, to do something or refrain from doing something; Certiorary
is invoked challenging flagrant illegal Orders of the Courts, Tribunals or of
Administrative bodies; prohibition is invoked to prevent Courts and Tribunals
from passing flagrant illegal Orders; and Quo warranto is invoked to remove
such persons from Public office who lacks requisite qualifications to hold that
Public office. Apart from these Writs, the High Courts are empowered to issue
any other Order or directions as the circumstances of the case warrants, and
can mould reliefs to meet the peculiar and complicated requirement of the case.
Discretionary Writ Jurisdiction: Writ jurisdiction is a special jurisdiction of High Court; and High
Courts may refuse to exercise this special jurisdiction when it is found that
the Person has equally efficacious remedy available before other courts /
tribunal or other competent authority. Therefore, in every Writ Petition, the
maintainability of Writ Petition is challenged either by the Respondents or
questioned by the Court itself, on the premise of “availability of alternative
remedy of Suit / Appeal / any other Statutory remedy”.
Therefore, it is essential to satisfy the Court as why
it is a fit case where the Hon’ble Court should exercise its extra-ordinary
Writ jurisdiction. In my limited understanding of things, I have formulated a
test / parameter, on the basis of which the Writ Court may exercise the Writ
jurisdiction.
Prayer
for exercise of Writ jurisdiction:
Whereas number of judgments of Apex Court or of High Courts may be cited, the
rational test for the exercise of this extra-ordinary jurisdiction could be,
wherein the conscience of the Writ Court is satisfied that the case before it,
is a fit case for intervention, wherein the Petitioners are being harassed or
being seriously prejudiced, by the patent illegal acts or omissions on the part
of “State” Respondents, and the Hon’ble Court may interfere, to the limited
extent, so as to remove the said patent illegality, without touching upon the
merits of the case.
Other
grounds on which Writ jurisdiction may be exercised: Further, there are many Apex Court rulings which have
laid down that where fundamental rights are alleged to have been infringed, or
where principles of natural justice are alleged to have been infringed or where
the subordinate courts or tribunals alleged to have acted without jurisdiction,
the Writ jurisdiction should be exercised by High Courts.
The
jurisdictional errors are one of
the most important grounds on which the High Courts exercise their plenary and
discretionary Writ jurisdiction under Article 226 & 227 of the Constitution
of India.
Jurisdiction
ordinarily signifies the
competence of a court/ tribunals to entertain the dispute presented before it,
and grant reliefs prayed / claimed for. However, the concept of jurisdiction is
not confined in its application to Courts, but is also applied to every
Statutory / Administrative or Constitutional body, to every Public servant /
instrumentality of the State, as contemplated under Article 12 of the
Constitution.
To put it more simple, jurisdiction implies the
authority of the Court / Tribunals / statutory or administrative bodies, to
“invoke” their powers, on a subject matter which comes before them, in the
regular discharge of their duties, and take action or pass Orders in that
behalf.
The
errors of Jurisdiction, or to say Jurisdictional error arises, broadly, for reasons of (i) Want of
Jurisdiction / without jurisdiction, that is to say, the Court/ Tribunals /
statutory or administrative bodies did not had the powers to “enter upon” the subject
matter which had come before it in the regular discharge of their duties; and
will include instances where the Court / Authorities etc. have usurped the
powers of another; and will also include instances where the condition
precedents, for the exercise of powers, were not complied with; (ii) Excess of
jurisdiction would imply such actions / Order where the Court / Authorities
etc. although have lawfully assumed and exercised their vested powers, but in
the course of exercise of their powers, they travelled beyond their powers, and
have done acts or have passed Orders which they were not empowered under the
law to act or to pass; (iii) Failure of jurisdiction would include such cases
where the Courts / Authorities, in a given situation, have neglected / failed
to exercise the discretion / powers conferred upon them. If a law confers a
public Officer with authority to do an act in a specified set of circumstances,
it is imperative upon him to exercise his authority in a manner appropriate to
the case when a party interested and having a right to apply moves in that
behalf and circumstances for exercise of powers and authority are shown to
exist. [AIR 1971 SC 33]
Grounds
on which Writ jurisdiction may be exercised: The Apex Court have consistently held that, in spite
of availability of the alternative remedy, the High Court may still exercise
its writ jurisdiction in at least three contingencies : (i) where the writ
petition seeks enforcement of any of the fundamental rights; (ii) where there
is failure of principles of natural justice AIR 2010 SCW 7184; or (iii) where
the orders or proceedings are wholly without jurisdiction or the vires of an
Act is challenged. [AIR 1970 SC 645; AIR 2010 SCW 7184; AIR 1999 SC 22; AIR 2012 SCW 616; AIR 2003 SC 2120; AIR
2005 SC 3936; AIR 1958 SC 86 (Constitution Bench Judg); (2011) 5 SCC 697;
AIR 1969 SC 556; (2015) 6 All MR 35 (BHC)].
Impugned
action without Jurisdiction: Among
other jurisdictional errors, the errors of “want of jurisdiction / without
jurisdiction of the Court / Authorities” is the most commonly occurred
phenomena in our land, Bharat, that is India; and these errors may take many
shapes and forms, as enunciated by our Apex Court in their various rulings. The
instances of acts of “without jurisdiction” may include –
a) Breach of
law: Where the Courts /
Authorities, etc, have acted without complying with the essential requirements
of law, which are aptly spelled out in the provision of law, and which forms
the conditions precedent for the exercise of powers; or where the exercise of
powers is in disregard of substantive and specific provision of law, which has
immediate bearing on the controversy at hand; or where the exercise of powers
was contrary to law of the land, in force, and that the said exercise of said
powers were without any legal support or sanction.. [AIR 1964 SC 322; (1990) 4
SCC 90]
b) Breach of
procedure prescribed under the law:
Where the Courts / Authorities, etc, have acted or have passed an Order without
following the procedure / or in breach of the procedure established under the
provision of law. [(1990) 4 SCC 90; AIR 2007 SC 3153; AIR 1964 SC 322]
c) Breach of
principles of natural justice: It
may be noted that the principles of natural justice in many statutes forms part
and parcel of procedure prescribed under that statute / law; and disregard of
any of these statutory provisions would result in action / Order passed without
following the procedure / or in breach of the procedure established under the
provision of law, resulting in jurisdictional error.
d) Disregarding
Precedents: There are rulings of
Apex Court which have laid down that, in the due exercise of powers, if the
Courts / Authorities disregards the precedents / judgments of Apex Court, such
action / Orders suffers from jurisdictional error. [AIR 2008 SCW 7153]. There is a Bombay High Court ruling on the same
lines. (1998) 1 Bom.C.R.397. It also amounts
to contravention of the fundamental policy of Indian law. [AIR 1994 SC 860; AIR
2015 SC 620]
e) The Apex Court in a case have gone to the extent of
holding that, a person has a “discretion to disobey” an Order of the Authority
if in his view, the said Order was without jurisdiction and which resulted in
infringement of his fundamental rights. [AIR 1974 SC
1471]
Other
forms of Jurisdictional errors: The
jurisdictional error may also arise due to errors of law as held by Apex Court
in landmark Mafatlal Ruling. The Apex Court observed to say that the inferior
court or tribunal lacks jurisdiction / exceeds jurisdiction if it enters upon
such an inquiry or, having jurisdiction in the first place, it proceeds to
arrogate an authority withheld from it by perpetrating a major error of
substance, form or procedure, or by making an order or taking action outside
its limited area of competence. The Apex Court further said, A tribunal lacks
jurisdiction if (I) it is improperly constituted, or (2) the proceedings have
been improperly instituted, or (3) authority to decide has been delegated to it
unlawfully, or (4) it is without competence to deal with a matter by reason of
the parties, the area in which the issue arose, the nature of the subject
matter, the value of that subject matter, or the non-existence of any other
prerequisite of a valid adjudication. Excess of jurisdiction is not materially
distinguishable from lack of jurisdiction and the expressions may be used
interchangeably. [(1997) 5 SCC 536]
Nevertheless,
the fine distinction between the jurisdictional errors and non jurisdictional errors must be clearly
understood. Jurisdictional errors are those errors which are committed whilst
“entering into” the province of the exercise of powers. The non jurisdictional
errors are those errors which are committed during the course of exercise of
powers, amidst the lawful invocation and lawful assumption of powers. [AIR 1954 SC 340; AIR 2003 SC 3789]
How to
determine whether error is jurisdictional or non jurisdictional:
The jurisdiction of the Court / Authority, although is
an issue of law, but ultimately it has to be decided on the basis of facts of
the case. Whether error in the Impugned action / Order is a jurisdictional
error or otherwise, is to be decided on the basis of existence or the non
existence of Jurisdictional facts.
The facts, the existence of which empowers the Court
or Authority to enter upon the province of their exercise of powers over the subject
matter, for adjudication or for any other legal action, are called
jurisdictional facts.
Therefore, if the “jurisdictional fact” exists
in the facts of the case, the Court / Tribunal / Authority had the jurisdiction;
if it does not exist, the court, authority or officer cannot act.
If the Court / Authorities wrongly assume the
existence of these jurisdictional facts, they commit jurisdictional error.
A “jurisdictional fact” is a fact which
must exist before any Court, Tribunal or an Authority assumes jurisdiction over
a particular subject matter. [AIR 1962 SC 1621; AIR 2009 SC 713] It has been held that
the cause of action is a jurisdictional question of fact. [AIR 2008 SC 187]
Consequences
of actions / Orders which are suffering from the jurisdictional errors: The actions /orders of Courts /Authorities suffering
from jurisdictional errors may be declared as nullity, void-ab-initio, non est
in law. Such actions / Orders may be challenged even in the execution proceedings.
[AIR 1974 SC 1471; AIR 2010 SC 3823; AIR 2011 SC 514; AIR 1924 Cal 913; AIR 1954 SC 340; AIR
2003 SC 1475; AIR 2003 SC 3789; AIR 2009 SC (Supp) 923].
Declaration
of law: One of the other ways to
deal with plea of “availability of alternate remedy”, is to seek the prayer of
“declaration of law” instead of direct relief. The High Courts being Court of
Record have to decide the questions of law whenever raised before them.
PILs /
Writs, same thing: In so far as
Public Interest Litigations (PILs) are concerned, there is no distinction
between a PIL or a Writ Petition, except to the fact that, in Writ Petition,
the Petitioner is himself aggrieved and seeks relief for himself, whereas in
PILs, the Petitioner raises issue of substantial public importance, and seeks
relief for the society as a whole.
Failings
of Writ remedy: Unfortunately,
the Writ remedy is failing to give people a summary relief to their grievances
against the Administration. By the means of this write up, I am anxious to
propose a simple way to dispose of Writ cases quickly.
What is happening in the Writ Court is – the aggrieved
Petitioner makes lot of arguments about the illegal action / inaction of the
“State”; the “State” in turn makes lot lot lot of arguments justifying its
action / inaction. All these can be avoided if the dispute / issue is
crystallized, and stand of the “Respondent” is made clear, in advance.
In wealth of judgments, the Courts have insisted upon
recording of reasons by Authorities on the premise that such a decision would
be subject to judicial review and the courts cannot exercise their duty of
review unless courts are duly informed of the consideration of the public /
statutory authorities underlying the action under review.
The
proposed remedy to infuse life in Writs: In my view, the bulk of Writ cases may be decided at the threshold,
where there is articulated due reply by the “Respondent” to the representation
made by the Petitioner therein; and where the Petitioner yet remained aggrieved
by the stand of the “Respondent”, the Petitioner may approach the Writ Court,
to decide the legitimacy / fairness / reasonableness, of the stand of the
“Respondent”. The “stand” of the Respondent must be before the Writ Court at
the threshold. This is precisely what the Writ Court do in the Writ
Jurisdiction. Writ jurisdiction is essentially a Judicial Review of
Administrative / Executive / Legislative actions / omissions of the “State”.
No
replies to complaints / representations, judicial notice of this fact: There are judicial notice of facts by Hon’ble Bombay
High Court that cases are being piled up in the Court because the authorities
do not respond to the representations made to them. In two cases before Hon’ble
Bombay High Court, it is ruled that the Public Authorities must Respond to the
Representation / Complaint it receives from the people. [WP (C) 6731 / 2012;
and WP (C) No. 8348 / 2009].
Obligation
to make representation before invoking seeking Writ of Mandamus; and the
reciprocal obligation of the State:
When the law obliges the subject to make due representation before the
concerned authority before he seeks Mandamus against them. Then, why, the
Administration is not obliged to make its position clear. The Writ Court must
compel the Administration to develop the habit of responding to the
Representations received by them. AIR 1975 SC 538; AIR 1975 SC 460.
The Apex Court in Salem Advocate Bar Association,
Tamil Nadu Vs. Union of India [AIR 2005 SC 3353] have ruled that all public
authorities / public officials must make a reasoned reply to the Notices
received by it.
Writ
jurisdiction can be invoked in cases of (a) Police illegalities of unlawful arrests / detentions (including
compensation), refusal to register FIR, investigation of crime, etc; (b)
Private entity / persons blatantly makes the mockery of provisions of laws and
authorities turning a blind eye to it; (c) Public Nuisance; (d) Actions
contrary to law by Public authorities; (e) Gross misuse of discretionary powers
by Public authorities; (f) Usurpation / Exercise of powers by Public
authorities when there is none; (g) Issuance of Notice by Public authorities
without justifiable reasons; (h) No reply to just complaints / representations
made before Public authorities; (i) Failure in discharge of duties by Public
authorities obligated under the law; (j) Refusal of exercise of powers by
Public authorities when the circumstances exists for due exercise of it; (k)
Preventing authorities from taking any unlawful action; (l) Flagrant illegal
orders passed by Courts, Administrative authorities, Quasi judicial bodies,
etc. (m) Mischievous frustration of contractual obligations by Administration;
(n) Denial of Policy benefits / withdrawal of; (o) Perjury Applications u/s
195(4) of CrPC, 1973 r/w Article 227 of the Constitution of India; (p) Challenge
to discriminatory / offensive / vague / oppressive / irrational laws.
The
summary procedure of Writ: The
procedure contemplated for Writ cases is purposely kept simple and short. After
making due representation, the Writ Petition may be filed in the concerned High
Court; and in case of extreme urgency, the case may be mentioned before the
concerned Bench of the High Court by submitting a small Application called
“Praceipe”; and the concerned Bench, on satisfaction of the urgency being
shown, may grant urgent hearing to the case and may grant immediate interim
reliefs.
Sandeep Jalan
Advocate
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