ADMINISTRATIVE LAW

ASSIGNMENT
PREROGATIVE REMEDIES

SUBMITTED BY,
Harshadaavenkat,
20BLA1020,
VITSOL.
SUMBITTED TO,
Prof. Arjun Shaji,
Assistant Professor,
VITSOL.
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 INDEX

SNO. TOPIC PAGE NO.

1. INTRODUCTION 03

2. PEROGATIVE REMEDIES 03

3. HISTORY 04

4. WRITS AND THE CONSTITUTION 04

5. MANDAMUS 06

6. HABEAS CORPUS 06

7. CERTIORARI 06

8. PROHIBITION 07

9. QUO WARRANTO 07

10. CONCLUSION 08

11. REFERENCES 08

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 PREROGATIVE REMEDIES

INTRODUCTION:
When we take the concept of Prerogative remedies in general it refers to a set of legal
remedies available in various legal systems, primarily the British and the India Legal System,
that are designed to protect the interests of individuals or entities against actions or decisions
of public authorities, including government officials, administrative bodies or other public
entities. These remedies are considered to be a crucial part of administrative law. So, we can
say that they play a pivotal role in maintaining the rule of law and ensuring that public
authorities exercise their powers in a fair and lawful manner. These prerogative remedies
include several legal mechanisms that allows individuals or organizations to challenge and
seek redress for unlawful or improper acts that are done by public authorities. These remedies
are often characterized by their swiftness, flexibility and accessibility, making them an
essential tool for holding the government agencies accountable for their actions.
The administrative authorities carry out executive duties and implement laws passed by the
legislature. It can also pass laws when given the authority to do so by the legislature.
Additionally, it can interpret the law and resolve disputes via administrative tribunals. Even if
someone is treated unfairly, they would have little recourse without adequate and effective
control. Individuals who have been wronged by an administrative authority's conduct may
seek judicial review through writs of prerogative. Prerogative remedies are essential in
ensuring that public authorities act in accordance with law and uphold the rights and interests
of the citizens. Thay provide a mechanism for individuals and organization to seek redress
and hold public officials accountable when their actions are unlawful, unreasonable, or in
breach of legal principles. The availability and use of prerogative remedies vary from one
legal system to another, but they serve as a fundamental safeguard against abuse of power
and the infringement of individual rights in democratic societies.

PEROGATIVE REMEDIES:
Based on the fundamental rights given in our constitution and the principle of ‘ubi jus ibi
remedium’, when there exists a right, there is a remedy. These remedies are given as rights
for every citizen even when administrative authorities violate them. These remedies can be
constitutional, statutory or equitable or Statutory remedies. Prerogative remedies in
administrative law most often discusses about prerogative remedies. Prerogative remedies are
those remedies made available by the government when an individual feels aggrieved by the
actions of the administrative bodies. Any individual or organization who feels that the
administration has unlawfully acted against the interests, can approach the court for judicial
review of the same. Then the court will adjudicate the same and provide the required
remedies. These remedies are given by the court by way of writs. Thus, we can say that
judicial review of administrative actions can be done through writs.

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HISTORY:
The transformation of English folk courts into common law courts is where writs got their
start in the English judicial system. The King's Bench in England is where the first writs laws
were enacted. Writs were sent out in response to a petition that was brought before the
monarch in council and were regarded as royal orders. A written order known as a "writ" was
one that was given in the king's name. However, the shapes and names of the writings
changed as the segments changed. The writs were granted by the monarch, and while they
were initially primarily for the crown's benefit, they subsequently became accessible to
regular citizens as well. These writs were filled out and known as "purchase of a Writ," for
which a predetermined cost was levied.
The concept of writs first appeared in India from The Regulating Act, 1773, which led to the
establishment of the Supreme Court in Calcutta. As successors to the Supreme Court, the
charter also established other High Courts and granted them the authority to enact writs. The
initial civil jurisdiction that these courts enjoyed under Section 45 of the Specific Relief Act,
1877, was the extent of their writ jurisdiction.
Writs are intended to serve as prerogative remedies. The Supreme Court's and the high courts'
writ jurisdictions, which they exercise under article 32 and article 226 respectively, are
mandatory and not merely advisory in their ability to uphold basic rights. However, the high
courts have discretion over their writ authority for "any other purpose." In that regard, the
high courts' writ jurisdiction is of a very fundamental nature. High courts therefore have the
enormous burden of rigorously executing this power in conformity with legal considerations
and accepted principles. In extreme circumstances, writs are used when conventional legal
remedies appear to be insufficient.

WRITS AND THE CONSTITUTION:

The Indian Constitution provides provisions in Articles 32 and 226 for the enforcement of
fundamental rights and for judicial review of administrative decisions via writs. A person's
ability to submit his complaint or grievance against any administrative action to the court's
attention is a constitutional right. Some of the most primary elements of writ jurisdictions are
the guarantee of natural justice and the protection for fundamental rights.
The Supreme Court and the High Court are the only courts with the ability to issue writs.
Articles 32 and 226 of the Constitution grant the Supreme Court and high courts respectively
this authority. According to article 32(1) person has the right to petition the Supreme Court
for the enforcement of fundamental rights protected by part III of the constitution. 1 Following
that Article 32(2) gives the Supreme Court the authority to issue directives, orders, or writs in
the forms of a Quo-warranto, Certiorari, Prohibition, Habeas Corpus, or mandamus for the
enforcement of basic rights.2 And lastly, Article 226 empowers state high courts to issue the
1
INDIA CONST, art. 32, cl.1
2
INDIA CONST, art. 32, cl.2

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aforementioned directions, orders, or writs for the enforcement of fundamental rights as well
as for "any other purpose." High courts specifically have the power to enforce "non-
fundamental rights" in addition to fundamental rights via writs.. As a result, the constitution
gives the High Court and the Supreme Court discretionary remedies. 3 No one can enforce
their assigned rights if there are no provisions for such remedies. As a result, if there is a
right, there must also be a remedy. As a result, it ought to adhere to the principle of "ubi jus
ibi remedium.
In India, the whole control mechanism established in the Constitution for the control of
administrative authorities, i.e., under Articles 32,136, 226,227,300, and 311, can be included
in the watershed. The examination of administrative bodies that are specifically mentioned in
the constitution, such as the Inter-State Council (Article 263), the Finance Commission
(Article 280), the Inter-State Water Dispute Authority (Article 262), etc., may also be
included. Additionally, it could examine constitutional restraints on the transfer of authority
to administrative authorities as well as those clauses in the Constitution that impose
restrictions on administrative conduct, such as the Fundamental Rights. In the case of Daryao
v. State of Uttar Pradesh4, it was decided that when a petitioner presents the case, the right to
get a writ must also be considered a basic right. Therefore, petitioning the Supreme Court
cannot just be seen as an individual's right; it is also the Court's obligation and responsibility
to uphold fundamental rights. The primary case involved with writs is the Minerva Mills vs
Union of India case5, where it was held that the constitution and its makers intended to make
to judiciary an independent body and gave it powers of judicial review so that the
administrative bodies did not act in arbitrary manner and to determine whether the
administrative actions performed by such bodies are legally valid and not beyond the powers
given to said body.
The rule of law, which is a fundamental aspect of the Indian Constitution, depends on judicial
scrutiny. The Judiciary is autonomous and independent, and it has broad authority to decide
cases, impose fines and punishments, and—most importantly—interpret the law. Regarding
the court's ability to declare legislative and executive activities unlawful, the court has the
right to examine the conduct of other branches or levels of government. This is the Superior
Court's evaluation of the truthful or lawful responses provided by a lower court or
administrative body. The Hon'ble Supreme Court said that, "The definition of judicial review
in the American context is, subject to a few modifications, equally applicable to the concept
as it is understood in Indian Constitutional Law" in the case of L. Chandra Kumar v. Union of
India6, which shed light on the short, inclusive definition of judicial review. In general, there
are three components to judicial review in India: judicial review of legislative action, judicial
review of court decisions, and judicial review of administrative action.
There are mainly 5 kinds of writs in India, namely,
1. Mandamus

3
INDIA CONST, art. 226
4
Daryao v. State of Uttar Pradesh, 1961 AIR 1457
5
Minerva Mills vs Union of India, 1980 AIR 1789
6
L. Chandra Kumar v. Union of India, AIR 1997 SC 1125

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 2. Habeas
3. Prohibition
4. Quo warranto
5. Certiorari

MANDAMUS:
The latin term mandamus means 'To command'. Its goal is to make sure that public servants
carry out their responsibilities successfully. This writ may be issued to compel a public
official to perform their duties if they refuse to do so or otherwise fail to do so. It should be
underlined that no person individually can legally be the subject of a mandamus unless and
until there exists an element of public authority. It may be given to a government agency or
company, but it cannot be used to impeach the president, the governor, or a state legislature
that is debating legislation.
It was held in the case of Main Subrat Jain vs State of Haryana 7 that nobody is permitted to
request a mandamus without a legal right. The legal claim must be one that is legally
protected and enforceable in court. Therefore, a person is only deemed to be harmed when
they are denied a legal right by someone who has the authority to do or not do anything.
According to Halsbury's Laws of England, "As a general rule, the order will not be granted
unless the party complained about has known what it was required to do, so that he had the
means of considering whether or not he should comply, and it must be shown by evidence
that there was a distinct demand of that which the party seeking the mandamus desires to
enforce and that demand was met by a refusal."

HABEAS CORPUS:
Habeas corpus is a Latin phrase that means "to have the body of." It is a corrective action for
a person who has been imprisoned or detained without authority. According to Indian penal
law, a person who has been detained by the police must appear before the magistrate within
24 hours of being detained. The writ of habeas corpus may be requested from the higher
judiciary if a person is detained without having broken any laws or if his detention was
unlawful. It can be filed on behalf of the detainee and issued against both private and public
agencies. But filing of this writ has some bars. The same was established in the ADM
Jabalpur v. Shivkant Shukla case8, where it was held that during emergency periods the
fundamental rights were suspended, so the remedy of habeas corpus is not available, but on
that note I agree with Justice Khanna’s dissent and feel that this decision is unfortunate and
unfair.

CERTIORARI:

7
Main Subrat Jain vs State of Haryana, 1977 AIR 276
8
ADM Jabalpur v. Shivkant Shukla, 1976 AIR 1207
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The Certiorari writ, which is possibly the oldest writ, was primarily used by the King to
demand that a matter be certified. The latin term literally means "to certify," and a superior
court may order the records of a case that is already being heard by a subordinate court or
tribunal. As a result, the superior court either takes over the case or revokes a decision made
by the inferior court. When the inferior court exercises powers outside of its purview or in its
absence, it is a way to swiftly seek justice. This writ, which has prerogative status, is directed
towards administrative authorities that violate people's rights. It is both curative and
preventative in nature. The same was put forth in the case of Vineet Narain vs Union of India9

PROHIBITION:
The writ of prohibition, as its name suggests, is given to subordinate courts to stop them from
acting in ways that are outside the scope of their authority. It is issued by the High courts or
Supreme Court in opposition to an order or judgement made by the lower court and is
sometimes referred to as a "stay order." It is crucial to understand the distinction between
certiorari and prohibition at this point. The latter is a preventive measure for a decision that
has already been made by the lower court, whereas the former requests records of a procedure
that is ongoing or pending in a lower court. In light of this, certiorari is given more weight
than prohibition since the superior court is thought to have scrutinized and reviewed the
subordinate court's conclusions. The same was put forth in the case of Hari Vishnu Kamath
vs Syed Ahmad Ishaque, where it was held that by issuing the writ of certiorari the court can
only annul a decision of a tribunal but under article 227 it can also issue further directions as
well.10
The court issues the writ of prohibition to stop the proceedings from going forward since, in
essence, it lacks the authority and jurisdiction to determine the matter. A special prerogative
with a preventative purpose is prohibition. "Prevention is better than cure" is the overarching
tenet. In the case of East India Commercial Co. Ltd. v. Collector of Customs 11, it was held
that a writ of prohibition is an order given to a lower court prohibiting it from carrying on
with a case on the grounds that the case is out of the court's purview, exceeds its authority, or
is otherwise against the law.

QUO WARRANTO:
Quo warranto, another Latin-derived phrase, means "by what warrant" or "by what authority,"
respectively. This writ is being issued to confirm the legitimacy of a person's usurpation of a
public office. The higher court grants this writ as an investigation into the occupying of
public office if it is determined to be of an illegal nature, directing their removal or
continuation, as the case may be. This writ's particular restriction to public offices established
either by statute or by the Constitution is one of its peculiar features. The claimant must

9
Vineet Narain vs Union of India, 1996 SCC (2) 199
10
Hari Vishnu Kamath vs Syed Ahmad Ishaque, 1955 AIR 233
11
East India Commercial Co. Ltd. v. Collector of Customs, 1963 AIR 1124

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persuade the court that an illegal usurpation occurred, and as a result, the court will look into
it. Just this one writ has been issued against n individual and not a body or authority. This was
established in the case of University of Mysore v. C.D Govind Rao. 12 The case puts forth that
the quo warranto procedure grants the judiciary the jurisdiction and authority to control
executive action in making appointments to public offices in violation of the relevant
statutory provisions; it also protects a citizen from being denied a public office to which he
may be entitled.

CONCLUSION:
The prerogative powers of writ jurisdiction granted by the Indian Constitution for judicial
review of administrative action which are exercised in their discretion. However, the
discretion given to the administrative bodies should not be used arbitrarily but rather in
accordance with sound legal and natural justice grounds. In this regard, it is crucial to
emphasize the absence of arbitrary power, which is the primary component of the rule of law
and the foundation of the entire constitutional system. Every time discretion is granted to the
executive powers under a system that upholds the rule of law, such boundaries must be made
explicit. Writs assist in monitoring administrative discretion. Any individual or group of
individuals who has been negatively impacted by the executive's use of administrative power
may seek judicial redress. The Constitution is the covers every law and nobody is supreme or
above the constitution. Even the judges of Supreme Court who are the protector of the
Constitution are not above law and they are bound by the law of the land. The constitutional
remedies provided to us bind the executive in their administrative actions and keeps them and
the actions of the government in check. In our country the judiciary is the guardian of law
which is supreme. Writ jurisdictions are judicial review of administrative actions. Judiciaries
always operate to ensure that all administrative actions are confined to the limits of the law
and does not step outside such limits. Thus we can say that the constitution and the law is
supreme and no one is above it. Thus the constitutional remedies or prerogative remedies act
as the check that keeps the administration of the government within its limits.

REFERENCES:
1. S.P. Sathe, Judicial Activism: The Indian Experience, 6 WASH. U. J.L. & POL’Y 29,
38 (2001)
2. Antharvedi, Usha, Judicial Review of Administrative Actions and Principles (March
11, 2008). Available at SSRN: or [Link]
3. Prerogative Remedies (Administrative Law), Navin Mehta & Associates, Prerogative
Remedies (Administrative Law) ([Link])
4. Neal Tate, Judicial Review, BRITANNICA,
[Link]

12
University of Mysore v. C.D Govind Rao, 1965 AIR 491
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5. Shrimali Mahima, Role of Writs in Administrative Law, Legal Services India, Role of
Writs In Administrative Law ([Link])
6. Pooja Pawar, The Law Column, Administrative Discretion and Judicial Review in
India | Law column.