THE ROLE OF WRITS IN THE ADMINISTRATIVE LAW

PROJECT SYNOPSIS
(Towards partial fulfilment of mid-term examination in the subject of Company Law- I)

SUBMITTED BY: SUBMITTED TO:

Vidit Harsulkar (021) Mr Milind Gawai
Semester VI Faculty of Law

NATIONAL LAW UNIVERSITY, MUMBAI

SUMMER SESSION
(JANUARY-MAY 2018)
INTRODUCTION
The main point of distinction between administrative law and all other laws is the extent
of its application, and control that is exercised by the Courts over these power of the
administrative bodies when they are related to the citizens. This may be regulated by ordinary
Courts or with the Courts having special jurisdiction over such matters.1
It has always been claimed that when the rights of the government are widely stressed
then there is a threat to the rights of the individuals. The fundamental rights are restricted
through the usage of “public order” or that of the “due process of law”, and in these cases the
Courts may or may not have the jurisdiction to look into the matter as to whether there is a
violation of such rights or not.2
Separation of powers has been the important concept of modern democracy. This has
been considered as one of the basic principles of democratic governance, thus there has to be
administrative independence from judicial review by the ordinary Courts. Generally, there are
three wings performing three different functions: Legislature, Executive and Judiciary. At the
same time, if these three wings are totally independent of each other, then there would be no
protection against the tyranny of the administrative wing. Due to this, now the Courts have been
empowered with the power of judicial review of the administrative actions.3
Administrative law provides for a mechanism to control the administration by an outside
agency so that there is no injustice done to the individual, as well as there is enough freedom for
the administration to operate independent of any other body. Due to the increasing powers of the

1
O. Hood Phillips and Paul Jackson, O. Hood Phillip’s Constitutional and Administrative Law (6th ed., London:
Sweet and Maxwell, 1978) at 11.
2
Id, at 16.
3
Eric Barendt, “Separation of Powers and Constitutional Government”, [1995] P.L. 599. Indian Express
Newspapers (Bombay) Private Limited v. Union of India, AIR 1986 SC 546. The Central Government issued an
order under s.25 of Customs Act, 1962, withdrawing all the exemptions that were granted to the newspaper from the
customs duty. Due to this there was heavy burden on the newspaper, as not only the duty exemption was removed,
there was a positive increase in the same. Such a withdrawal was challenged under Art.32 on the ground that there
was a restriction placed on the fundamental right of freedom of speech and expression guaranteed under Art.19
(1)(a). The Court looked into the fact whether such an order was within the purview of the powers that are granted to
the executive or not? After the consideration of all the relevant factors, the Court came to the conclusion that the
government should have a reconsider the order of removing the exemption.
state it has been observed by Lord Denning that, “properly exercised the new powers of the
executive lead to a Welfare State, but abused they lead to the Totalitarian State”. There are for
the same purpose many remedies that are available with the aggrieved individual, and a
significant one among them is that of the prerogative writs.4

RESEARCH METHODOLOGY

AIMS AND OBJECTIVES:

The basic aim of this project is to study the significance of writs in administrative actions. Also,
the paper tries to critically understand the deeper importance of writs in the current scenario by
highlighting the various interpretations taken by the courts.

SCOPE AND LIMITATIONS:

The researcher has laid particular stress on examining the legal issues on the laws relating to
writs in relation to administrative actions and has not dealt with writs in particular so as to
restrict the scope to much relevance to the course. The researcher has been forced to limit the
examination to a certain key issues and regrets the lack of a detailed analysis due to adhering to
the prescribed word limit

STYLE OF WRITING:
The style of writing in this paper is primarily analytical as the researcher has tried to identify and
discuss the main issues of the concerned law; this has been fused with a descriptive mode of
writing wherever necessary.

MODE OF CITATION:
The researcher has followed a uniform mode of citation. Any divergence is due to insufficient
information available or due to the mode of citation prescribed in the book.

RESEARCH QUESTIONS:

4
C.K.Takwani, Lectures on Administrative Law (3rd ed., Lucknow: Eastern Book Company, 1998) at 289.
1. What is the need for writs?
2. What are the various provisions in Indian Constitution which provides for issuing writs?
3. Against whom can a writ be issued?
4. What are the various remedies of writs owing to various administrative actions?
5. What are the limitations and applications of various writs?

SOURCES OF DATA:
Secondary resources in the form of books and articles have been relied upon.

REVIEW OF LITERATURE
1. ARTICLES:

I. M.P.Singh, “Administrative Action in violation of Natural justice affecting

fundamental rights: Void or voidable”, (1979) 2 SCC (Jour) 1.
II. N.R.Campbell, “The duty to give reasons in administrative law”, [1994] P.L. 184.
III. Rt. Hon. Sir Thomas Bingham, “Should Public law remedies be discretionary”,
[1991] P.L. 64.
IV. Soli J.Sorabjee, “Obliging Government to control itself: Developments in Indian
Administrative Law”, [1994] P.L. 39.
V. Eric Barendt, “Separation of Powers and Constitutional Government”, [1995] P.L.
599.

2. BOOKS:

- C.K.Takwani, Lectures on Administrative Law (3rd ed., Lucknow: Eastern Book

Company, 1998) at 289.
- O. Hood Phillips, Leading cases and administrative law (3rd ed., London: Sweet and
Maxwell, 1967) at 359.
- O. Hood Phillips and Paul Jackson, O. Hood Phillip’s Constitutional and Administrative
Law (6th ed., London: Sweet and Maxwell, 1978) at 11
 - Garner’s Administrative Law (B.L.Jones ed., 7th ed., London: Butterworths, 1989) at
107.
- M.P.Jain and S.N.Jain, Principles of Administrative Law (Agra: Wadhwa and Company
Law Publishers, 1986) at 315.
- Paras Diwan, Towards New Desposition?(Allahabad: Allahabad Law Agency, 1992) at
172.
- S.P.Sathe, Administrative Law (6th ed., New Delhi: Butterworths, 1999) at 363.
- V.N.Shukla’s Constitution of India (M.P.Singh ed., 9th ed., Lucknow: Eastern Book
Company, 1998) at 277-9.

3. ONLINE SOURCES:

I. www.jstor.org
II. www.scholar.google.com
CHAPTER-WISE BREAK UP
i) Origination of Writs in the World :
During ancient periods, an written order issued on behalf of the Monarch of the United Kingdom
to local officials (High Sheriffs of every country in the historical UK) to hold a general election
is considered as a writ. Then in medieval times, English Kings used to issue barons to summon
persons of influential importance namely Peers (whether hereditary or not) to Parliament whose
advice was considered valuable. King John’s Magna Carta guaranteed to all free men immunity
from illegal imprisonment, a guarantee that has traditionally been invoked by way of the writ of
habeas corpus. But as far as the writ of prohibition is concerned, its birth place is United States
where the practice of drafting and issuance of a legal document by a Supreme Court, Superior
Court or Appeal Court to a Judge presiding over a suit in an inferior court was started.

ii) Birth of Writs in India:

The writs can be traced back to the Regulating Act, 1773 under which Supreme Court was
established in Calcutta. It also established High Courts with the power to issue writs with a limit
to their original civil jurisdiction under Section 45 of the Specific Relief Act, 1877.

iii) Principles governing the concept of writ jurisdiction:

Writs are meant as prerogative remedies. The writ jurisdictions exercised by the Supreme Court
and by the High Courts for the enforcement of fundamental rights are mandatory and not
discretionary. But the writ jurisdiction of high courts for 'any other purpose' is discretionary. In
that sense the writ jurisdiction of high courts are of a very intrinsic nature. Hence high courts
have the great responsibility of exercising this jurisdiction strictly in accordance with judicial
considerations and well established principles. When ordinary legal remedies seem inadequate,
in exceptional cases, writs are applied.

iv) Constitutional provisions under Art. 32 & Art.226:

Article 32 and 226 of the constitution of India has designed for the enforcement of fundamental
rights and for a judicial review of administrative actions, in the form of writs. It is a
constitutional remedy available to a person to bring his complaint or grievance against any
administrative action to the notice of the court. Safeguard of fundamental rights and assurance of
natural justice are the most important components of writ jurisdictions. Wherever there is a right
there must be a remedy for it. Thus it should satisfy the maxim, ‘ubi jus ibi remedium.’

v) Application of writ of prohibition:

Prohibition is an extra ordinary prerogative writ of a preventive nature. The under lying
principle is that “Prevention is better than cure”. A writ of prohibition is a writ directing a
subordinate to stop doing something that they may not do according to law, but are doing. This
writ is normally issued by a superior court to the lower court asking it not to proceed with a case
which does not fall under its jurisdiction. The writ lies in both for access of jurisdiction or
absence of jurisdiction. It is generally issued before the trial of the case or during the pendency
of the proceeding but before the order is made.

vi) Conclusion:
The writ remedy is one of the most powerful remedy given to the people of India by the
Constitution. Writs are discretionary powers which should be exercised on sound legal
principles. In a system governed by rule of law when discretion is conferred upon the executive
authorities it must be based on clearly defied limits. Judiciary stands to ensure that all
administrative actions are confined to the limits of the law. Thus, the writ jurisdictions act as
checks and balance of policy decisions to ensure that no laws made are unreasonable, unfair and
against public interest. To end this submission, I must quote the words of one of the principle
makers of the Indian Constitution, Dr. B.R. Ambedkar who has given the prime importance
to Article 32 among all other articles from the Indian Constitution. He has referred that, “It is the
very soul of the Constitution and the very heart of it”.