Conventional and Unconventional Remedies:
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Introduction:
Besides the conventional remedies like Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo Warranto the Indian Supreme Court has innovated many unconventional remedies like Continuing Mandamus, Certioraring Mandamus, curative Petition, Late night petition, etc. This blog contains all the information one needs to know about various writs along with unconventional remedies.
1)Habeas corpus:
The writ of Habeas corpus is used to secure the release of a person who has been detained unlawfully or without legal justification. The word Habeas Corpus literally means ' to have a body '
Habeas Corpus may also be issued when a person complains of illegal custody or detention by a private person.
The writ is available for enforcement of fundamental right where the order of imprisonment or detention is ultra virus.
The writ is not available for the detention of person outside the jurisdiction of the court and imprisonment by a court of law on criminal charges
Issued against: State or any other person against illegal detention
Who can approach: Victim of imprisonment or parents, friends but not by a person completely stranger
In Kanu Sanyal vs District Magistrate, Darjeeling 1974 SC
The SC held that while dealing with the writ of Habeas Corpus production of the body of the person alleged to be unlawfully detained was not essential.
2)Mandamus:
Mandamus means "to command".
It is a command issued by a court( High Court or Supreme Court) commanding a public authority to perform public duty belonging to its office
Mandamus is issued to enforce the performance of public duties by authorities of all kinds.
For example, when a tribunal omits to decide a matter which it is bound to decide, it can be commanded to determine the question which it has left undecided.
It shall also step in when the discretion is exercised but the same has not been done legally and validly. Where an order has been passed without complying with the principle of natural justice.
Mandamus can be granted only when a legal duty is imposed on the authority in question and the petitioner has a legal right to compel the performance of this duty. The performance of this duty shall be imperative and not discretionary.
Condition for grant of mandamus:
1) Existence of Legal right
The existence of legal rights should be imperative and not discretionary in nature.
Example: giving of salary and yearly allowances
here giving salary is imperative bit allowances is discretionary
State of MP vs GC Mandawar 1954 SC
Fact: The MP government made a rulemaking it a matter of its discretion to grant a clearness allowance to its employee.
As no right was conferred on government servant to the grant of clearness allowance and no duty was imposed on the government to grant it and as the government had merely taken the power to grant the allowance at its own discretion, mandamus could not be issued to compel the government to exercise its discretionary power
2) Demand and refusal for the performance of public duty
3) To perform what is imperative/mandatory public duty
4) When alternative remedies are not available, if available then no writ of mandamus
When a writ of mandamus is not granted:
A writ of mandamus will not be granted in the following circumstance:
1)When duty is merely discretionary
2)Not against a private individual or any private organization, because they are not entrusted with a public duty
3)Cannot be granted to enforce an obligation arising out of contract
4)Compel legislature to make any law
Grounds for issuing a writ of Mandamus:
1) Lack or excess use of Jurisdiction
2) Failure to perform a public duty
3) Abuse of Discretion
- Improper purpose
- Acting under dictation(command and control of others)
- Non-application of Mind
- Malafide intention
Example: Father(legislature) says to son(executive) to cut timber from the garden using the Axe (Law), thus if legislature infers certain discretionary powers on the executive then the executive should exercise that powers in a correct way and should not abuse that power.
4) Violation of the Principle of Natural Justice
3)Certiorari and Prohibition:
The writ of certiorari and prohibition are issued practically on similar grounds.
The only difference between the two is that;
Certiorari is issued to quash a decision after the decision is taken by a lower tribunal
while;
Prohibition is issuable before the proceedings are completed
The object of 'Prohibition' is prevention rather than cure.
For example, the HC can issue prohibition to restrain a tribunal from acting under an unconstitutional law but if the tribunal has already given its decision then certiorari is the proper remedy in such a situation.
When the case is pending before the court but it has not finally been disposed of the SC has to apply both prohibition and certiorari- prohibition to prevent the court to proceed further with the case and Certiorari for quashing what had already been decided.
Thus the object of the writ of prohibition is prevention rather than cure while certiorari is used as a cure.
Both Prohibition and Certiorari are issued against judicial and Quasi-Judicial bodies. It does not lie against public authorities.
In R Vs Electricity Commission King's Bench (1924)
Lord Atkin explains the extent of / Condition for the writ of certiorari:
1) Having legal Authority
So the person or authority to whom the writ of certiorari is to be issued should have the legal authority to determine the question affecting the right of the subject.
2) Should have the duty to act judicially
3) Have acted in excess of legal authority
then only he is subject to control/jurisdiction of king's Court
"Having a duty to act judicially" derived from the language of the statute (prevalent in England).
Ridge vs Baldwing(House of Lords)
In this case, it was said that duty to act judicially does not come from the language of statute it comes from the "nature of power"-
Ak kraipak vs Union of India
In this case, the "duty to act judicially" was explained; it means the duty to act 'fairly and justly' and if not then the superior court has the power to issue the writ of certiorari.
Grounds for issuing the writ of certiorari:
1) Lack of Jurisdiction
example: under the law, a person was authorized to grant a license for 3 years but being a personal friend, he granted a license for 5 years to his friend.. - Ram Bharasey vs Har Swarup
2) An error of law apparent on the face of the record
an error of law means; ignorance of the law, disobedience of the law, Misrepresentation, etc.- Shri Krishan vs Kurukshetra University.
3) Fraud
4) Violation of the Principle of Natural Justice
The principle of Natural justice means; minimum protection of the individual against the arbitrary procedure that may be adopted by the Judicial or quasi-judicial and administrative authority while making an order affecting those rights.
Grounds for issuing the Writ of Prohibition:
2)Infringement of Fundamental Right
3)Violation of the Principle of Natural Justice
4)Fraud
5)Contravention of the Law of the Land
4)Quo Warranto :
The writ lies only in respect of a public office of a substantive character. The writ does not, therefore, lie to question the appointment of a college principle it is not a public office.
The word " Quo Warranto" means 'what is your authority'
To file a petition for quo warranto, it is not necessary that the petitioner should have suffered a personal injury himself or should seek to redress a personal grievance.
Issued against: a person who holds public office
Grounds for issuing the writ of Quo warranto:
1) The office must be a substantive public office
Substantive public office means; office created by the constitution, the duty should be imposed by law, for the public, which is a mandatory public duty.
2) Office occupied must be substantive Post.
3) Holder of that office not qualified to hold that post.
- Writ of Quo warranto can not be issued if the person had not yet joined the office, as it is only issued to a person who is the holder of an office.
- Writ of Quo warranto is only issued in illegality, not an irregularity
Illegality means; the person who is holding the office is itself holding it in violation of any law, thus being illegal
Irregularity means; person holding the office is perfectly legal but there are some irregularities on the part of authorities.
Some unconventional remedy innovated by the Courts:
# Continuing Mandamus:
It is used by court fro continuous monitoring of the executive performance with respect to the court order. This unconventional remedy has been effective especially in cases related to the monitoring of government performance in environment protection
Example:
In MC Mehta vs Union of India
The SC ordered for continuous monitoring and evaluation of executive compliance in the development of CNG Gas public transport to check pollution in Delhi NCR Region.
In Bandhu Mukti Morcha Case:
The SC held the right to a safe working environment as a Fundamental Right and accordingly ordered the executive to provide safe working conditions in mines.
The judiciary's active involvement in environmental protection should not be seen as judicial overreach rather it should be understood that judiciary compulsion to order as other organs have failed in realizing the urgency in environmental protection.
# Certiorarified Mandamus:
This expression means a merger of two writs i.e., Certiorari and Mandamus. By issuing of certiorari a decision may be quashed and by subsequent issuance of mandamus an authority may be directed to decide the matter in accordance with the law. This culls out a writ of a completely different nature that is Certiorarified Mandamus.
# Curative Petition:
( it is not a writ but an unconventional remedy innovated by the courts)
This concept was evolved by the SC in the matter of
Rupa Ashok Hurra vs AShok Hurra (2002) SC
where the question was Whether an aggrieved person is entitled to any relief against the final judgment/order of the SC after the dismissal of a review petition.
The SC, in this case, held that in order to prevent abuse of its process and to cure gross miscarriage of justice, it may reconsider its judgment in the exercise of its inherent power, for this purpose, the court has devised what has been termed as "Curative petition".
Petition( is filed against order/Judgment) ------->
Review petition( is a petition of review the petition and now the order is final and now no petition can be filed ) ----------- >
Curative petition ( but under certain cases petition can also be filed against final order which is termed as Curative Petition. Curative means cure, heal.
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