WRITS

There are 5 types of writs under Indian constitution:

1. Habeas Corpus =to produce body

2. Mandamus= to command
3. Prohibition= this writ is invoked by the HC to stop a lower court from
transgressing the limits of its power. It can be passed only during the
pendency of the proceeding.
4. Certiorari = to be certi ed
5. Quo-Warranto = by what authority

Supreme Court = article 32

High court = article 226
How Writ Jurisdiction of the Supreme Court
Differs from that of the High Court?
Difference Supreme Court High Court

Purpose To only enforce To enforce fundamental rights but also for

other purposes (The expression ‘for any
fundamental rights other purpose’ refers to the enforcement of
an ordinary legal right)

Territori Against a person or • Against a person residing,

al government throughout government or authority located
Jurisdict the territory of India within its territorial jurisdiction only
ion Or

• Outside its territorial jurisdiction

only if the cause of action
arises within its territorial
jurisdiction

Power Article 32 is a fundamental Discretionary-May refuse to

right- the Supreme Court exercise its power to issue writs
may not refuse to exercise
its power to issue the writs
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Reasons for growth of Administrative
law.
The concept of a welfare state
As the States changed their nature from laissez-faire to that of
a welfare state, government activities increased and thus the
need to regulate the same. Thus, this branch of law developed.

The inadequacy of legislature

The legislature has no time to legislate upon the day-to-day
ever-changing needs of the society. Even if it does, the lengthy
and time-taking legislating procedure would render the rule so
legislated of no use as the needs would have changed by the
time the rule is implemented.

Thus, the executive is given the power to legislate and use its
discretionary powers. Consequently, when powers are given
there arises a need to regulate the same.

The inef ciency of Judiciary

The judicial procedure of adjudicating matters is very slow,
costly complex and formal. Furthermore, there are so many
cases already lined up that speedy disposal of suites is not
possible. Hence, the need for tribunals arose.

Scope for the experiment

As administrative law is not a codified law there is a scope of
modifying it as per the requirement of the State machinery.
Hence, it is more flexible. The rigid legislating procedures need
not be followed again and again.
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 Administrative Law vs Constitutional Law
Difference Between Administrative Law and Constitutional
Law

Constitutional Law Administrative law

Administrative law is
The ultimate law of any nation-
ancillary to the ultimate
state is Constitutional law.
law.

Deals with the actual

Deals with the organs of the
functioning of the
State and its structure
organs of the State.

It has a wide scope and deals with

It has a narrow scope and
the powers of the State, general
only deals with the powers
principles of governance, and the
and functioning of the
relationship between the citizens
Administrative bodies.
and the State.

It is not codi ed. There

It is codi ed into a single text in
might be hundreds of
countries with a written
thousands of
constitution.
Administrative laws.

Administrative law de nes

its legal roles and
Constitutional law establishes
limitations. Therefore, it can
an Administrative body be seen as the action arm of
Constitutional law.
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 Separation of powers

[Link]

Principle of natural justice

“Natural justice is a sense of what is wrong and what is

right.”

Principle of Natural Justice is derived from the word ‘Jus

Natural’ of the Roman law and it is closely related to Common
law and moral principles but is not codified. Natural justice
simply means to make a sensible and reasonable decision
making procedure on a particular [Link], natural
justice consists of 3 rules.

The first one is “Hearing rule” which states that the person or
party who is affected by the decision made by the panel of
expert members should be given a fair opportunity to express
his point of view to defend himself.

Secondly, “Bias rule” generally expresses that panel of expert

should be biased free while taking the decision. The decision
should be given in a free and fair manner which can fulfil the
rule of natural justice.

And thirdly, “Reasoned Decision” which states that order,

decision or judgement of the court given by the Presiding
authorities with a valid and reasonable ground.
Purpose of the principle

• To provide equal opportunity of being heard.

• Concept of Fairness.

• To fulfil the gaps and loopholes of the law.

• To protect the Fundamental Rights.

• Basic features of the Constitution.

• No miscarriage of Justice.

Rules of Natural Justice

• NEMO JUDEX IN CAUSA SUA

• AUDI ALTERAM PARTEM

• REASONED DECISION

Nemo Judex In Causa Sua

“No one should be a judge in his own case” because it leads to rule
of biases. Bias means an act which leads to unfair activity whether in a
conscious or unconscious stage in relation to the party or a particular
case. Therefore, the necessity of this rule is to make the judge impartial
and given judgement on the basis of evidence recorded as per the case.

Audi Alteram Partem

It simply includes 3 Latin word which basically means that no person can
be condemned or punished by the court without having a fair opportunity
of being heard.
Reasoned Decision

Basically, it has 3 grounds on which it relies:-

1. The aggrieved party has the chance to demonstrate before the

appellate and revisional court that what was the reason which
makes the authority to reject it.

2. It is a satisfactory part of the party against whom the decision is

made.

3. The responsibility to record reasons works as obstacles against

arbitrary action by the judicial power vested in the executive
authority.
Control of Delegated Legislation
There are three kinds of Control given under Delegated
Legislation:

1. Parliamentary or Legislative Control

2. Judicial Control
3. Executive or Administrative Control
Parliamentary or Legislative Control
Under parliamentary democracy it is a function of the
legislature to legislate, and it’s not only the right but the duty
of the legislature to look upon its agent, how they are working.

It is a fact that due to a delegation of power and general

standards of control, the judicial control has diminished and
shrunk its area.

In India “Parliamentary control” is an inherent constitutional

function because the executive is responsible to the legislature
at two stages of control.

1. Initial stage
2. Direct and Indirect stage
In the Initial stage, it is to decide how much power is required
to be delegated for completing the particular task, and it also
observed that delegation of power is valid or not.

Now, the second stage consists of two different parts.

1. Direct control
2. Indirect control
Direct control
Laying is an important and essential aspect under direct control
and it is laid down as per the requirement which means that
after making the rule it should be placed before the Parliament.
It includes three important part as per the degree of control
needs to be exercised.

1. Simple Laying
2. Negative Laying
3. Affirmative Laying
And “test of Mandatory” & “Test of Directory” are two
main test.

Test of Mandatory – Where the laying demand is a condition

pattern to guide the rule into impact then in such a case laying
need is mandatory.

Where the provision is mentioned that the rules should be

drafted in a particular format then it becomes mandatory to
follow the format.

Test of Directory – Where the laying need is next to enforce

the rule into operation then it will be directory in nature.

Indirect control
This is a control exercised by Parliament and its committees.
Another name for such type of committee is Subordinate
legislation. The main work of the committee is to examine

1. Whether rule are according to general object of the act.

2. It bars the jurisdiction of the court in direct or indirect
ways.
 3. Whether it has retrospective effect or not.
4. Whether it safeguard or destroy the Principle of Natural
Justice.
5. Expenditure involved in it is from Consolidated fund.

Procedural and Executive Control

There is no particular procedure for it until the legislature
makes it mandatory for the executive to follow certain rules or
procedure.

To follow a particular format it may take a long time which will

definitely defeat the actual objective of the act. Hence,
procedural control means that under Parent act certain
guidelines are given which need to be followed while whether
it is mandatory or directory to follow it or not. It includes three
components:

1. Pre publication and consultation with an expert authority,

2. Publication of delegated legislation.
3. Laying of rules.
It can be either Mandatory or Directory, to know, certain
specified parameters are given:

1. Scheme of the Act.

2. Intention of Legislature.
3. Language used for drafting purpose.
4. Inconvenience caused to the public at large scale.
And these four parameters were given in the case Raza
Buland Sugar Co. vs. Rampur Municipal Council.
Judicial Control
Judicial review upgraded the rule of law. The court has to see
that the power delegated is within the ambit of the constitution
as prescribed. Judicial review is more effective because court
do not recommend but it clearly strikes down the rule which is
ultra vires in nature. As per Section 13(3)(a) “Law” is defined
under the Constitution of India which clearly indicate that
State should not make any law which abridge the right given in
Part iii of the Constitution. It is dependent on two basic
grounds:

1. It is ultra vires to the Constitution of India, and

2. It is ultra vires to the enabling Act.