Remedies available in

Administrative Law

Presenting by: Shrikant Narnaware

4th Semester LLB (3yrs)
Any right is meaningless if it without remedy for its
enforcement. Similarly fundamental rights also
provided with its remedy for enforcement.
• In case of violation of any fundamental right; one can
move to Supreme Court under Art. 32; which is also a
fundamental right.
• This right is also available under Art. 226.
Remedies for enforcement of rights conferred by
this Part
1) The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred
by this Part is guaranteed.
2) The Supreme Court shall have power to issue
directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto
and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part.
3) Without prejudice to the powers conferred on the
Supreme Court by clauses (1) and (2), Parliament may by
law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2)
4) The right guaranteed by this article shall not be suspended except
as otherwise provided for by this Constitution.
Supreme Court will not interfere where with an administrative
order; if it is not challenged on the gro of infringement of
fundamental right. If no fundament right is violated then no
application will lie.
 Art. 32 gives Supreme Court original jurisdiction' and 'appellate
jurisdiction
The power of Supreme Court is not limited to issuing prerogative
writs only; but it extends to issuing order,
 writs or directions including writs in the nature of hebeas corpus,
mandamus, quowarranto, prohibition and certiorari. • A prerogative
writ means:
1. A right or privilege of a particular person or group or class.
2. A faculty or property distinguishing person or class.
3. An exclusive or special right.
4. Order directing another organ of State with extra ordinary power.
[1. WRIT OF HEBEAS CORPUS:
 Meaning of this writ is to bring body' or 'to havebody'.
 It is an order calling upon the person who has detained another
person to produce detune before the court to examine the legality of
his detention.
The object of this writ is to secure the release of the person detained
illegally. Its object is not to punish the person who has detained
another person illegally but to secure release of the person who has
been illegally detained.
 This writ is maintainable against State and not against private person.
Dr. Khaki for issue of writ of hebeas corpus detention is prima facie be
illegal which is condition precedent. Illegal detention means which is
not supported by law.
Application for writ of hebeas corpus can be made by the person
himself or other person.Writ is not issued if detention is lawful.
 Writ of hebeas corpus is to be disposed expeditiously.
Burden of proof is on authority to show lawful detention
. WRIT OF MANDAMUS:
The writ of mandamus is in form, a command issued by the Superior Court i.e. Supreme Court or
High Court, to the Government, inferior court, tribunal, public authority, corporation or any other
person having public duty to perform; asking such Government, inferior court, tribunal, public
authority, corporation or person to perform the public duty or to refrain from doing illegal act.
 Any person who is affected by the violation of statutory duty or the abuse of the statutory power,
may apply for the issue of the writ of mandamus.
 The object of this remedy is to keep the publicauthority within the limits of their jurisdiction
whileexercising their functions
 For issue of this writ, following conditions are essential:
1. Public duty: The person / authority against whom writ is to be issued must have public duties to
perform and there must be failure on his part in performance. A public duty is created by statute or
rule of common law.
2. Duty to be mandatory. The performance of duty by personor authority must be mandatory and not
discretionary. Butwhen discretionary power is used arbitrarily or maliciouslyor don't use discretion;
writ of mandamus may be issued.
3. Petitioners legal right to compel the performance of the duty: The petitioner must have a legal
right and such legal right must be imposed on the person or authority to perform act
4. Demand of the performance and its refusal: It is necessary that the person has called upon the
authority concemed to perform its public duty and the such authority has refused to do so.
When writ of mandamus can be refused:
1. For private duties. E.g. Duty arising out of contract.
II. Against private body or institution.
III. Where duty is merely discretionary.
IV. On the ground of laches or undue delay.
V. When it is infructuous.
VI. Where there is mis-statement or suppression of facts.
3. WRIT OF CERTIORARI
The writ of certiorari is the writ which is issued by the Superior court i.e.
High Court or Supreme Court to the inferior court or tribunal or body
exercising judicial or quasi judicial functions to remove the proceedings from
such court, tribunal or body for examining the legality of the proceedings.
It is issued when such inferior court or tribunal or body exercising judicial or
quasi judicial functions illegally. It is to keep these within the limits of the
jurisdiction assigned to them by law and to prevent them from acting in
excess of their jurisdiction.
 Petition for writ of certiorari can be filed by the person who is aggrieved by
the impugned
• Writ of certiorari can be filed on following grounds
If an authority has acted under invalid law.
If there is a jurisdictional error.
If there is error apparent on the face of record.
If the finding of facts are not supported by evidence.
If there is failure of the principles of natural justice.
4. WRIT OF PROHIBITION:
Prohibition is a writ which is issued by a superior court to an inferior
court or tribunal or body exercising judicial functions preventing such
inferior court or tribunal or body from usurping jurisdiction which is
not vested therein or from acting in violation of the principles of
natural justice or from acting under the unconstitutional law.
• The object of this writ is to restrain inferior court or tribunal or body
from exceeding their jurisdiction and to keep within limit of
jurisdiction. It is issued to prohibit the body concern from proceeding
further.
• Prohibition and Certiorari are similar in many respects.
Writ of prohibition is issued before the proceeding are completed
while certiorari is issued after the decision is given by the inferior
court or tribunal.
Prohibition lies as long as the proceedings are pending before the
inferior court or tribunal. Certiorari may be issued to quash the
decision such court or tribunal even if it has ceased to exist for the
continued existence of the court or tribunal.
5. WRIT OF QUO-WARRANTO:
• The literal meaning of quo-warranto is 'by what authority'. By this writ
a person who occupies or usurps a independent substantive office is
asked to show by what authority he claims it.
Unauthorised occupant of such office may be ousted by the judicial
order and the person entitled to the office may be allowed to occupy it.
• The object of this writ is to control executive action in the matters of
making appointment to public offices, against the relevant statutory
provisions and to protect a citizen being deprived of that to which he
may have the right.
Conditions for application writ of quo-warranto are:
The office in question must be a public office of substantive character;
and 11. It must be held by a person without legal authority.
• Quo-warranto is not issued as a matter of course. It is a discretionary
remedy. Court may grant or refuse according to the facts and
circumstances of each case.
• Quo-warranto is generally not refused on the ground of delay because if
the appointment is illegal it can be challenged at any time.
• WHEN SUPREME COURT CAN REFUSE TO GRANT REMEDY UNDER ARTICLE
32:
1) Res judicata: Principle of res judicata is applicable to writ petitions also. But not
applicable for hebeas corpus. If petitioner already moved to High Court; it can be
rejected.
2) Delay: It is not a rule of law but when there is not explanation as to undue delay and
court may refuse to entertain writ petition.
3) Malicious prosecution.
4) Misrepresentation or suppression of facts.
5) Infructuous petitions.
6) Existence of adequate alternative remedy.

 JUDICIAL ACTIVISM:
Judicial activism means, the movements of the judiciary to probe into the inner
functioning of the other organs of the Government i.e. The executive and legislature.
Article 32 makes the Supreme Court as the protector and guarantor of fundamental
rights. It has been conferred with power of judicial review in which Supreme Court can
examine the constitutionality of executive or legislative actions.
. Art. 141 states that, the law declared by the Supreme Court shall be binding on all
courts within territory of India. The power of Supreme Court is to declare the law as
valid or invalid but not to make law.
Thank you