Writs and public interest litigation

SUBMITTED TO: SUBMITTED BY:Dr. P.K. Das MANOJ KUMAR

B.B.A.LL.B (H) 5TH SEMESTER

ACKNOWLEDGEMENT I would like to express my special thanks of gratitude to my teacher    Dr. P.K. 

Das who gave me the golden opportunity to do this wonderful project on the topic 

WRITS AND PUBLIC INTEREST LITIGATION, which also helped me in doing a lot of 

Research and I came to know about so many new things I am really thankful to 

them.

Secondly I would also like to thank my parents and friends who helped me a lot 

in finalizing this project within the limited time frame.]

Table of ContentsPage 2

Pg. no.

Acknowledgment……………………………………………………………………………………………………………………………2

Table of Contents…………………………………………………….……………………………………………………………………...3

Introduction…………………………………………………………………………………………………………………………………...4

What is Writ Jurisdiction? ……………………………………………………………………………………………………………....5

Origin of Writs………………………………………………………………………………………………………………………………..5

Difference B/W the Writ jurisdiction of Supreme Court and High Court…………………………………………...6

Classification of Writs……………………………………………………………………………………………………………………..7

Writ of Habeas Corpus……………………………………………………………….7 Writ of Mandamus…………………………………………………………………...8 Writ of Prohibition……………………………………………………………….…10 Writ of Certiorari…………………………………………………………………...11 Writ of Quo-Warranto……………………………………………………………..12

What is Public Interest Litigation (PIL)? ...………………………………………………………………....14

Origin of PIL………………………………………………………………………………………………...15

Conclusion.......................................................................................................................................................17

Bibliography…………………………………..……………………………………………………………..18

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INTRODUCTION

The word Writ means a written document by which one is summoned or required to do or refrain from doing something.Historically writ originated and developed in British legal system As defined by Blackstone, ‘writ is a mandatory letter from the king-in- parliament, sealed with his great seal, and directed to the Sheriff of the country wherein the injury is committed or supposed so to be requiring him to command the wrongdoer or party caused either to do justice to the complainant, or else to appear in court and answer the accusation against him.”

Initially writs were royal prerogatives. Since only the King or Queen as the fountain of justice could issue writs, they were called prorogate writs. “They were called prerogative writs because there were conceived as being intimately prerogative writs because they were conceived as being intimately connected with the rights of the crown. A Prerogative writ was issued only on some probable cause being shown to the satisfaction of the court. Why the extraordinary power of the crown is called in to the party’s assistance.1

Public Interest Litigation, in Indian law, means litigation for the protection of public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is not necessary, for the exercise of the court's jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court. Public Interest Litigation is the power given to the public by courts through judicial activism.

Such cases may occur when the victim does not have the necessary resources to commence litigation or his freedom to move court has been suppressed or encroached upon. The court can itself take cognizance of the matter and precede suo motu or cases can commence on the petition of any public-spirited individual.2

1 http://www.assignmentpoint.com/arts/law/writ-jurisdiction.html 2 http://www.lawyersclubindia.com/articles/PUBLIC-INTEREST-LITIGATION-3111.asp#.VfBWkF-qqko

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WHAT IS WRIT JURISDICTION?

In modern democratic countries, the administrative authorities are vested with vast discretionary powers. The exercise of those powers often becomes subjective in the absence of specific guidelines etc. Hence the need for a control of the discretionary powers is essential to ensure that 'rule of law' exist in all governmental actions. The judicial review of administrative actions in the form of writ jurisdiction is to ensure that the decisions taken by the authorities are legal, rational, proper, fair and reasonable.

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.3

ORIGIN OF WRITS

The origin of writs can be drawn from the English Judicial system and were created with the development of English folk courts-moots to the common law courts. The law of writs has its origin from the orders passed by the King’s Bench in England. Writs were issued on a petition presented to the king in council and were considered as a royal order. Writs were a written order issued in the name of the king which acted as groundwork for the subsequent proceedings. However, with different segments writs took various forms and names. The writs were issued by the crown and in the interest of the crown but with the passage of time it became available for ordinary citizens also. However a prescribed fee was charged for it and the filing of these writs were known as Purchase of a writ.

HISTORICAL BACKGROUNDThe origin of writs in India goes back to the Regulating Act, 1773 under which Supreme Court was established at Calcutta. The charter also established other High courts and these High Courts had analogous power to issue writs as successor to the Supreme Court. The other courts which were established subsequently did not enjoy this power. The writ jurisdiction of these courts was limited to their original civil jurisdiction which they enjoyed under section 45 of the Specific Relief Act, 1877.4

3 http://www.indiastudychannel.com/resources/142486-Writ-jurisdiction-Supreme-Court-high-courts.aspx 4 http://www.legalserviceindia.com/article/l402-Role-Of-Writs-In-The-Administrative-Law.html

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DIFFERENCE BETWEEN THE WRIT JURISDICTION OF SUPREME COURT

AND HIGH COURT

There is difference between the Writ Jurisdiction of Supreme Court and High Courts as follows:

1. The Writ Jurisdiction of Supreme Court is mentioned under Article 32 of the Indian Constitution,

while the Writ Jurisdiction of High Courts is mentioned under Article 226 of the Indian

Constitution.

2. The High Courts have wider powers as compare to Supreme Court in issuing writs.

3. The Supreme Court can issue writ only in case of violation of any of the fundamental rights

contained in Part-III of the constitution, while the High Courts can issue writs not only in case of

violation of fundamental rights but also in case of violation of any legal rights of the citizens

provided that a writ is a proper remedy in such cases, according to well-established principles.

4. Article 32 of the Constitution of India imposes on the Supreme Court a duty to issue the writs,

whereas no such duty is imposed on the High Court by Art-226.

5. The jurisdiction of the Supreme Court extends all over the country, whereas that of the High Court

only to the territorial confines of the particular state and the Union Territory to which its

jurisdiction ex-tends.5

5 http://www.ias.org.in/2013/07/writ-jurisdiction-of-supreme-court-and.html

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CLASSIFICATION OF WRITS

There are five types of writs which in details described as follows.1. Writ of Habeas Corpus2. Writ of Mandamus3. Writ of Prohibition4. Writ of Certiorari5. Writ of Quo-Warranto

1.  Writ of   Habeas Corpus The meaning of the Latin phrase Habeas Corpus is 'have the body'. According to article 21, "no person

shall be deprived of his life or personal liberty except according to the procedure established by law".

The writ of Habeas corpus is in the nature of an order directing a person who has detained another, to

produce the latter before the court in order to examine the legality of the detention and to set him free

if there is no legal justification for the detention. It is a process by which an individual who has been

deprived of his personal liberty can test the validity of the act before a higher court.

The objective of the writ of habeas corpus is to provide for a speedy judicial review of alleged

unlawful restraint on liberty. It aims not at the punishment of the wrongdoer but to resume the release

of the retinue. The writ of habeas corpus enables the immediate determination of the right of the

appellant's freedom.

Article 22 of the constitution requires an arrested person to be produced within 24 hours of his arrest

and failure to do so would entitle the person arrested to be released. The grounds of his arrest should

also be informed to him. Even when the arrest is valid, failure to inform the grounds within a

reasonable time would make the detention unconstitutional. In such cases, the writ of Habeas corpus

acts as a constitutional privilege. If the court finds that there was no legal ground for the imprisonment

of a person, it will pass an order to release him forthwith. The question before the court is whether the

detention is lawful. In the writs of habeas corpus, the merits of the case or the moral justification for

the imprisonment or detention are irrelevant. Any person whether he is guilty or not, is entitled to be

set at liberty if his imprisonment is not as per law.

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Who can apply?

A writ of habeas corpus is issued to the authority or person who has detained the person. The application for habeas corpus can be made by the prisoner himself or by any interested person other than a total stranger .Even a letter to the court pointing out the illegalities of imprisonment or unlawful detention will be admitted. If the court gets any information from anyone, it can act suo motu in the interest of justice.

Procedure:

An application for a writ of habeas corpus has to be made along with an affidavit describing the nature and circumstances of the restraint. If the court finds that a prima facie case for granting the request is evident, then it will issue a rule 'nisi' calling upon the authority concerned to show cause , on a specified date, why the writ should not be issued. If the cause shown is found to be insufficient, the court will issue the writ for the immediate release of the detained person.

Habeas corpus and the emergency powers of the executive:

Various legislations have curtailed the power of this writ to a great extent. For example, the declaration of emergency and other national security laws etc. The executive has the power to detain a person on its discretion preventively. As per the existing national security laws, the grounds of arrest need not be revealed to the person arrested. In such instances, the judiciary has only very little scope for review.

Similarly, Article 359 of the constitution empowers the president of India to suspend the right to move any court for the enforcement of any of the fundamental right, specified in his order.

2. Writ of Certiorari

The writ of Certiorari is generally issued against authorities exercising quasi-judicial functions. The Latin word Certiorari means 'to certify'. Certiorari can be defined as a judicial order of the supreme court or by the high court to an inferior court or to any other authority that exercise judicial, quasi-judicial or administrative functions, to transmit to the court the records of proceedings pending with them for scrutiny and to decide the legality and validity of the order passed by them.

Through this writ, the court quashes or declares invalid a decision taken by the concerned authority. Though it was meant as a supervisory jurisdiction over inferior courts originally, these remedy is extended to all authorities who issue similar functions. The concept of natural justice and the requirement of fairness in actions, the scope of certiorari have been extended even to administrative decisions. Whether the decision is judicial or quasi judicial is irrelevant nowadays.

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Certiorari is corrective in nature. This writ can be issued to any constitutional, statutory or non statutory body or any person who exercise powers affecting the rights of citizens.

Grounds for Certiorari:The following are the grounds for Certiorari:

i) Lack of jurisdiction

When the authority has no jurisdiction to take action, it is lack of jurisdiction. When an authority is improperly constituted or is incompetent to take action and if it acts under an invalid law, it will amount to lack of jurisdiction. Similarly when the authority acts without jurisdiction, fails to exercise the vested jurisdiction or acts in excess of the limits, there involves a defect of jurisdiction or power. The court can issue certiorari to quash such orders.

ii) Abuse of jurisdiction:If an authority abuses its jurisdiction, a certiorari can be issued. When the authority exercises its power for improper purposes it is abuse of jurisdiction. Similarly if the authority acts in bad faith or ignores relevant points and facts or acts on some other considerations abuse of jurisdiction occurs and the writ of certiorari becomes applicable.

iii) Jurisdictional facts:A jurisdictional fact is that fact or facts upon which an authority's power to act depends. In the absence of jurisdiction for collateral facts an authority cannot exercise jurisdiction over a dispute and decide it. If the authority takes a decision on the wrong assumption of existence of jurisdictional facts, the order is liable to be quashed by the writ of certiorari.

iv) Error of law apparent on the face of record:A writ of certiorari can be issued to quash an order if there is an error of law apparent on the record. An error is apparent on the face of record if it is self evident i.e. if the error can be ascertained by a mere perusal of the record without a detailed argument or further evidence. An error of law apparent on the face of the record is treated as an insult to the legal system. Ignorance or neglect of law, wrong proposition of law, inconsistency between the facts, law and the decision etc amount to errors of law.

v) Violation of the principle of natural justice:When there is a violation of the principle of natural justice, a writ of certiorari can be issued. An authority is bound to observe the principles of natural justice. Anyone who decides a case must adhere to the minimum standards of natural justice. Hence when there occurs an infraction of fundamental right, the writ of certiorari comes for restoration of that right.

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3. Writ of Prohibition

The grounds for issuing the writs of certiorari and prohibition are generally the same. They have many common features too. The writ of prohibition is a judicial order issued to a constitutional, statutory or non statutory body or person if it exceeds its jurisdiction or it tries to exercise a jurisdiction not vested upon them. It is a general remedy for the control of judicial, quasi judicial and administrative decisions affecting the rights of persons.

Grounds:The writs of prohibition and certiorari are issued more or less on similar grounds. 

i) Absence or excess of jurisdiction :

The writ if Prohibition prohibits an authority from exercising a jurisdiction not vested on it. When there is absence of jurisdiction or total lack of jurisdiction an authority cannot act.

ii) Violation of fundamental rights:When an authority acts in violation or infringement of the fundamental rights of a person, a writ of prohibition can be invoked.

iii) Violation of the principles of natural justice:All authorities are to observe the principles of natural justice while exercising their powers. If an authority fails in this regard the decision of that authority is liable to be quashed through the writ of prohibition.

iv) Statutes or laws against the constitution:When an authority tries to act under a statute or a law which is unconstitutional, the writ of prohibition can be applied.

Common features of prohibition and certiorari:

•Issued against any authority having judicial, quasi judicial or administrative jurisdiction.

•Certiorari is issued to quash a decision already taken whereas prohibition is issued when the matter is still pending before the authority. But even if the authority has taken a decision, the writ of prohibition can be issued to stop the authority from enforcing the decision.

•Certiorari can be applied for both prevention and cure whereas prohibition is mainly for prevention.

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4. Writ of Mandamus

The writ of mandamus is a judicial remedy in the form of an order from the supreme court or high courts to any inferior court, government or any other public authority to carry out a 'public duty' entrusted upon them either by statute or by common law or to refrain from doing a specific act which that authority is bound to refrain from doing under the law. For the grant of the writ of mandamus there must be a public duty. The superior courts command an authority to perform a public duty or to non-perform an act which is against the law. The word meaning in Latin is 'we command'.

The writ of mandamus is issued to any authority which enjoys judicial, quasi judicial or administrative power. The main objective of this writ is to keep the public authorities within the purview of their jurisdiction while performing public duties.

Conditions required for mandamus

•The petitioner must have the right to compel the performance of the duty. This writ cannot be invoked if the person complaining has no legal right.

•There must be public duty. That duty must be mandatory and not discretionary. But at the same time when a discretionary power is abused or improperly exercised, that would be treated as non exercise of discretion and the court can command the authority to exercise the discretion in accordance with law.

•The petitioner must have made a specific demand for the performance of the duty and the authority must have made a refusal to perform. Then only a writ of Mandamus can be sought.

•A civil liability arising under a contract cannot be enforced through mandamus. The grant of mandamus is discretionary. If there is unreasonable delay in filing the petition or if there is an adequate alternate remedy mandamus may be refused by the court.

Grounds:The grounds for the writ of mandamus are similar to those of certiorari and prohibition. 

i) Lack of jurisdiction.

ii) Error of jurisdiction.

iii) Excess jurisdiction.

iv) Abuse of jurisdiction.

v) Violation of the principles of natural justice.

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vi) Error of law apparent on the face of the record etc.

Who can apply?Generally the affected person has the right to seek this remedy. Exceptions are:

1.The writ of mandamus cannot be issued against the president or the governors of states. They cannot be insisted to exercise powers and to perform duties.

2. The writ of mandamus cannot be issued against the state legislature to prevent it from the execution of a law alleged to be violative of the provisions of the constitution.

3. The writ of mandamus cannot be issued to an officer who acts on the orders of his superior.

Grounds for refusal of mandamus:Mandamus is a public law remedy and hence it cannot be used to enforce a civil liberty arising under contracts. If there is unreasonable delay in filing the petition and if there is another adequate alternate remedy, the writ of mandamus cannot be issued.

In fact the writ of mandamus is more purposeful than certiorari or prohibition. It combines the aspects of both the writs to make an effective and better solution.

5. Writ of Quo Warranto

The word meaning of 'Quo warranto' is 'by what authority'. It is a judicial order against a person who occupies a substantive public office without any legal authority. The person is asked to show by what authority he occupies the position or office. This writ is meant to oust persons, who are not legally qualified, fro substantive public posts.

The writ of Quo warranto is to confirm the right of citizens to hold public offices. In this writ the court or the judiciary reviews the action of the executive with regard to appointments made against statutory provisions, to public offices .It also aims to protect those persons who are deprived of their right to hold a public office.

Conditions:The following conditions are to be present if the writ of quo warranto is to be issued.

•The office must be a 'public office'. All offices established by statutes or as per the provisions of the constitution and which carry out public duties are public offices.

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•It must be substantive in nature. A substantive office is independent and permanent. It must be held by an independent officer.

•The holder must be in actual possession of the office.

•The person must have actual possession of the office. A person who has been elected or appointed to a particular post cannot be sued upon unless he has not accepted the post.

•The holding of the post must be in contravention of law.The appointment of a person to a public office must be a clear violation of law. Irregularities in procedures etc cannot be taken as violation.

Who can apply?

Any member of the public can seek the remedy of quo warranto even if he is not personally aggrieved

or interested in the matter.6

6 http://www.indiastudychannel.com/resources/142486-Writ-jurisdiction-Supreme-Court-high-courts.aspx

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WHAT IS PUBLIC INTEREST LITIGATION (PIL)?

In Indian law, Public Interest Litigation means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is not necessary, for the exercise of the court’s jurisdiction, that the person who is the victim of the violation of his or her right should personally approach the court. Public interest litigation is the power given to the public by courts through judicial activism. However, the person filing the petition must prove to the satisfaction of the court that the petition is being filed for a public interest and not just as a frivolous litigation by a busy body.

Such cases may occur when the victim does not have the necessary resources to commence litigation or his freedom to move court has been suppressed or encroached upon. The court can itself take cognizance of the matter and precede suo motu or cases can commence on the petition of any public-spirited individual.7

ORIGIN OF PILThe term “PIL” originated in the United States in the mid-1980s. Since the nineteenth century, various movements in that country had contributed to public interest law, which was part of the legal aid movement. The first legal aid office was established in New York in 1876. In the 1960s the PIL movement began to receive financial support from the office of Economic Opportunity, This encouraged lawyers and public spirited persons to take up cases of the under-privileged and fight against dangers to environment and public health and exploitation of consumers and the weaker sections.

 HISTORY OF PIL IN INDIA

PIL had begun in India towards the end of 1970s and came into full bloom in the 80s. Justice V.R. Krishna Iyer and Justice PM. Bhagwati, honorable Judges of the Supreme Court of India delivered landmark judgments which opened up new vistas in PIL.8

7 http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-41da-aa0b-b4201b77a8bd&txtsearch=Subject:%20Jurisprudence 8 http://www.vakilno1.com/legal-advice/know-public-interest-litigation-pil.html

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Merits:

1. In Public Interest Litigation (PIL) vigilant citizens of the country can find an inexpensive legal remedy because there is only a nominal fixed court fee involved in this.

2. Further, through the so-called PIL, the litigants can focus attention on and achieve results pertaining to larger public issues, especially in the fields of human rights, consumer welfare and environment.

Demerits:

1. The genuine causes and cases of public interest have in fact receded to the background and irresponsible PIL activists all over the country have started to play a major but not a constructive role in the arena of litigation. Of late, many of the PIL activists in the country have found the PIL as a handy tool of harassment since frivolous cases could be filed without investment of heavy court fees as required in private civil litigation and deals could then be negotiated with the victims of stay orders obtained in the so-called PILs.

2. The framers of Indian constitution did not incorporate a strict doctrine of separation of powers but envisaged a system of checks and balances. Policy making and implementation of policy are conventionally regarding as the exclusive domain of the executive and the legislature. Vishaka v State of Rajasthan which was a PIL concerning sexual harassment of women at work place. The court declared that till the legislature enacted a law consistent with the convention on the Elimination of All Forms of Discrimination against Women which India was a signatory, the guidelines set out by the court would be enforceable.

3. The flexibility of procedure that is a character of PIL has given rise to another set of problems. It gives an opportunity to opposite parties to ascertain the precise allegation and respond specific issues.

4. The credibility of PIL process is now adversely affected by the criticism that the judiciary is overstepping the boundaries of its jurisdiction and that it is unable to supervise the effective implementation of its orders. It has also been increasingly felt that PIL is being misused by the people agitating for private grievance in the grab of public interest and seeking publicity rather than espousing public cause.

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STEPS NECESSARY:

With the view to regulate the abuse of PIL the apex court itself has framed certain guidelines (to govern the management and disposal of PILs.) The court must be careful to see that the petitioner who approaches it is acting bona fide and not for personal gain, private profit or political or other oblique considerations. The court should not allow its process to be abused by politicians and others to delay legitimate administrative action or to gain political objectives. There may be cases where the PIL may affect the right of persons not before the court, and therefore in shaping the relief the court must invariably take into account its impact on those interests and the court must exercise greatest caution and adopt procedure ensuring sufficient notice to all interests likely to be affected.

At present, the court can treat a letter as a writ petition and take action upon it. But, it is not every letter which may be treated as a writ petition by the court. The court would be justified in treating the letter as a writ petition only in the following cases-

(i) It is only where the letter is addressed by an aggrieved person or

(ii) a public spirited individual or

(iii) a social action group for enforcement of the constitutional or the legal rights of a person in custody or of a class or group of persons who by reason of poverty, disability or socially or economically disadvantaged position find it difficult to approach the court for redress.

Even though it is very much essential to curb the misuse and abuse of PIL, any move by the government to regulate the PIL results in widespread protests from those who are not aware of its abuse and equate any form of regulation with erosion of their fundamental rights. Under these circumstances the Supreme Court of India is required to step in by incorporating safe guards provided by the civil procedure code in matters of stay orders /injunctions in the arena of PIL.9

9 http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-41da-aa0b-b4201b77a8bd&txtsearch=Subject:%20Jurisprudence

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CONCLUSIONThe prerogative powers of writ jurisdiction conferred by the constitution for judicial review of

administrative action is undoubtedly discretionary and yet unbounded in its limits. The discretion however should be exercised on sound legal principles. In this respect it is important to emphasis that the absence of arbitrary power is the first essential of the rule of law upon which the whole constitution system is based. In a system governed by rule of law when discretion is conferred upon the executive authorities it must be based on clearly defied limits. Thus the rule of law from this point of view means that the discretion or the decision must be based on some principles and rules. In general the decision should be predictable and citizens should know where he is. If a decision is taken not on the basis of any principle or rules then such decision is arbitrary and is taken not in accordance with the rule of law.

PIL represents the first attempt by a developing common law country to break away from legal imperialism perpetuated for centuries. It contests the assumption that the most western the law, the better it must work for economic and social development such law produced in developing states, including India, was the development of under develop men. The shift from legal centralism to legal pluralism was prompted by the disillusionment with formal legal system. In India, however instead of seeking to evolve justice- dispensing mechanism ousted the formal legal system itself through PIL. The change as we have seen, are both substantial and structural. It has radically altered the traditional judicial role so as to enable the court to bring justice within the reach of the common man. Further, it is humbly submitted that PIL is still is in experimental stage. Many deficiencies in handling the kind of litigation are likely to come on the front. But these deficiencies can be removed by innovating better techniques. In essence, the PIL develops a new jurisprudence of the accountability of the state for constitutional and legal violations adversely affecting the interests of the weaker elements in the community. We may end with the hope once expressed by Justice Krishna Iyer, “The judicial activism gets its highest bonus when its orders wipe some tears from some eyes”.

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BIBLIOGRAPHY

World Wide Web

http://www.assignmentpoint.com http://www.indiastudychannel.com http://www.legalserviceindia.com http://www.ias.org.in http://www.manupatrafast.com http://www.vakilno1.com

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