A basic perception of prerogative remedy (Writ)

 

“A basic perception of prerogative remedy (Writ) under Administrative law in Bangladesh.”

 

1. Introduction:  Prerogative remedy means a Formal order issued in the name of the sovereign, court, or an authority commanding the person whom it is issued to do or refrain from doing something specified. It is also called writ. The writ is mostly known as a prerogative remedy because in the UK once this was only Royal privilege. A prerogative writ is a writ (official order) directing the behavior of another arm of government, such as an agency, official, or another court. It was originally available only to the Crown under English law and reflected the discretionary prerogative and extraordinary power of the monarch.

 

2. Basic Backdrop of the Prerogative Remedies:

The prerogative writs are a means by which the Crown, acting through its courts, effects control over inferior courts or public authorities throughout the kingdom. The writs are issued in the name of the Crown, who is the nominal victim, on behalf of the applicant.

The prerogative writs other than habeas are discretionary remedies and have been known as prerogative orders in England wales since 1938. The writs of quo warranto and procedendo are now obsolete, and the orders of certiorari, mandamus, and prohibition are under the new civil procedure known as "quashing orders", "mandatory orders" and "prohibiting orders" respectively.

The origin of writs can be drawn from the English Judicial System and were created with the development of English folk courts 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. However, with different segments writs took various forms and names. The writs were issued by the crown and initially only for the interest of the crown later on it became available for ordinary citizens also. A prescribed fee was charged for it and the filling of these writs were known as Purchase of a Writ.

3. Basic Concept of the writ:

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 like an order directing a person who has detained another, to produce the latter before the court 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 liberty can test the validity. 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.

In the writs of habeas corpus, the merits of the case or the moral justification for the imprisonment or detention are irrelevant. In A.D.M. Jabalpur v. Shivakant Shukla, it was observed that “the writ of Habeas Corpus is a process for securing the liberty of the subject by affording an effective means of immediate relief from unlawful or unjustifiable detention whether in prison or private custody. If there is no legal justification for that detention, then the party is ordered to be released.”

 

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 courts to an inferior court or to any other authority that exercises 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, this 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. An instance showing the certiorari powers was exercised by the Hon’ble Supreme court in A.K.Kraipak v. Union of India, where the selection was challenged on the ground of bias. The Supreme Court delineated the distinction between quasi-judicial and administrative authority. The Supreme Court exercising the powers issued the writ of certiorari for quashing the action. Certiorari is corrective. This writ can be issued to any constitutional, statutory or non-statutory body or any person who exercise powers affecting the rights of citizens. 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.

 

 The Writ of Prohibition is issued by the court exercising the power and authorities from continuing the proceedings as basically such authority has no power or jurisdiction to decide the case. Prohibition is an extraordinary prerogative writ of a preventive nature. The underlying principle is that ‘prevention is better than cure.’ In East India Commercial Co. Ltd v. Collector of Customs, a writ of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or more than jurisdiction or contrary to the laws of the land, statutory or otherwise.

 

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 that 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. The writ of mandamus can be issued if the public authority vested with power abuses the power or acts mala fide to it. In Halsbury’s Laws of England, it is mentioned that “As a general rule the order will not be granted unless the party complained of 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 that demand was met by a refusal.” 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, from 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 concerning 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 In the University of Mysore v. Govinda Rao, 12 the Supreme Court observed that the procedure of quo Warranto confers the jurisdiction and authority on the judiciary to control executive action in making the appointments to public offices against the relevant statutory provisions; it also protects a citizen being deprived of public office to which he may have a right.

 

4. Writs in the Constitution of Bangladesh: There are five writs to avail according to the constitution of Bangladesh, which are Prohibition, Habeas Corpus, Certiorari, Mandamus, and Quo-Warranto.

 

4.1Prohibition:

In the first part of Clause (2) of Article 102 of the Constitution of the People’s Republic of Bangladesh 1972, the High Court Division is empowered to direct a person carrying out any functions relating to the affairs of the Republic or a local authority to refrain from doing what it is not permitted by law to do 16. It, therefore, deals with the prohibition writ, that is given to refrain an individual from acting if the conditions listed are met. The conditions are (a) An application filed by an aggrieved person, (b) No equally effective remedy is available, (c) acts without jurisdiction or over jurisdiction, and (d) done by a person performing functions in connection with the affairs of the public body.

 

4.2Mandamus:

Mandamus is an order or order of the Court which directs any person, corporation or tribunal inferior requiring him to do something specific as his duty when a court, tribunal, authority or person has failed to fulfill his statutory duty, the High Court compels the Court or person to do his statutory duty. The second part of clause (2) (a) (i) of Article 102 authorizes the Division of the High Court to issue instructions like mandamus writs to compel an individual performing tasks in connection with the Republic or Local Authority’s affairs to do something that is needed by law.

 

4.3Certiorari:

Certiorari is intended to supervise the superior court's action and make sure they have not surpassed their jurisdiction. Like a prohibition, certiorari is awarded by the High Court Division when

(a) An aggrieved individual applies for the same

(b) No other similarly effective remedy is given by law

(c) The individual to be prosecuted is a person performing tasks to the Republic’s or local authority’s affairs.

However, unlike a prohibition, it is issued after the act or proceeding has been completed to declare that such an act or proceeding has been carried out without legal power and has no legal impact. While a prohibition is issued to prevent the act or proceeding when it is not complete and something remains to be prevented, when the act or proceeding is complete, certiorari is issued.

 

4.4 Habeas Corpus:

 Under provision (2) (b) (i) of Article 102 of the Bangladesh Constitution, 1972, the High Court Division is authorized to order an individual in custody to be brought before him to be satisfied that he is not in custody without legal power or unlawfully.

Habeas Corpus is a writ that is issued to safeguard freedom, and freedom that is thought to be very essential. It is awarded by the police authority against wrongful detention or deportation. Habeas Corpus is a kind of court order that commands an individual to be held in custody by the authorities to take that person to court. Then the authorities have to clarify why he’s being kept. If the explanation is unsatisfactory, the Court may order the individual’s release. Habeas corpus is thus a method to secure the subject's private freedom.

Such an individual must have a government office. A public office implies a constitutional office or a law about the Republic’s or a local authority’s affairs. Only when the government functionary has a public duty under the law and has refused to fulfill his obligation will it be awarded. The obligation may be administrative, quasi-judicial, or judicial.

 

4.5 Quo- Warranto:

 Quo-Warranto is a writ verifying a person’s title to the office by the High Court and thus dismissing the unlawful occupants by judicial order. When an individual illegally holds a law-created public office, the High Court may, by issuing quo-warranto, ask the individual to demonstrate on what power he holds the office and may require him not to hold such office any further. Clause (2)(b)(ii) of Article 102 of the Constitution of Bangladesh, 1972, authorizes the High Court Division to create an order like quo-warranto. An individual holding or purporting to hold a government office may be required to demonstrate under what power he claims to hold that office. If there is an application praying for the same thing and there is no other similarly effective solution given by legislation, this writing may be given. It should be pointed out here that, like habeas corpus, an aggrieved individual does not need to file the request for quo-warrant. But unlike habeas corpus, while the former is compulsory in nature, it is discretionary.

 

6. Role of ‘Locus standi:

The role of Locus standi is very much applicable in the writ petition. Locus standi means the legal capacity to challenge an act or decision or right to sue. Whether the decision is valid or invalid is seldom relevant to the determination of the question of whether the applicant has Locus standi to impugn it. This issue as to who may file a petition is a fundamental question and has given rise to much debate and controversy and yet its importance cannot be ignored because the court may not such a petition if not presented aggrieved or interested person. A writ can be file by a person whose-

 

I) Fundamental rights and legal right are infringed

II) Beneficial interest,

III) Status etc, all or any of these have been infringed directly and substantially,

IV) Personally aggrieved Person,

V) The person who has “Locus standi”.

 

7. Role of Writs in Administration Law:

 The administrative law is that branch of law that keeps the government actions within the bounds of law or to put in negatively, it presents the enforcement of blatantly bad orders from being derogatory. Administrative law has greatly demarcated the checks, balance, and permissible area of an exercise of power, authority, and jurisdiction over administrative actions enforced by any State, Government agencies, and instrumentalities defined under Article 12 of the Constitution of India. And the judiciary is dynamically carving the principles and exceptions while making the judicial review of administrative action.

 

 The Courts have constantly tried to protect the liberties of the people and assume powers under the Constitution for judicial review of administrative actions. The discretionary powers have to be curbed, if they are misused or abused, it is the essence of justice. The socio-politics instrument need not cry if the courts do justice and perform a substantial role. That is the essence of justice. The welfare state has to discharge its duty fairly without any arbitrary and discriminatory treatment of the people in the country. If such powers come to the notice of the Courts, the courts have raised the arms consistently with the Rule Of Law. Today, the Government is the provider of social services, new forms of poverty like jobs, quotas, licenses, etc. The dispenser of special services cannot, therefore, act arbitrarily. Courts laid the standard of reasonableness in the Government act

 

 8. Role of Writs in Administrative Action:

  

Now as far as the role of the writs is concerned, let us go by illustration over the cases on discretion. Conferment of discretionary powers has been accepted as a necessary phenomenon of modern administrative and constitutional machinery. Lawmaking agency legislates the law on any subject to serve the public interest and while making law, it has become indispensable to provide for discretionary powers that are subject to judicial review. The rider is that the Donnie of the discretionary power has to exercise the discretion in good faith and for the purpose for which it is granted and subject to limitations prescribed under the Act. The Courts have retained their jurisdiction to test the Statute on the ground of reasonableness. Mostly, the courts review on two counts; firstly whether the statute is a substantively valid piece of legislation and, secondly whether the statute provides procedural safeguards. If these two tests are not found, the law is declared ultra vires and void of Article 14 of the Constitution.

 

 Besides this, Courts control the discretionary powers of the executive government being exercised after the statutes have come to exist. Once they come into existence, it becomes the duty of the Executive Government to regulate the powers within limitations prescribed to achieve the object of the Statute. The discretionary powers entrusted to the different executives of the Government play a substantial role in administrative decision making and immediately the settled principles of administrative law trap the exercise of powers. If these discretionary powers are not properly exercised, or there are abuse and misuse of powers by the executives or they take into account irrelevant consideration for that they are not entitled to take or simply misdirect them in applying the proper provision of law, the discretionary exercise of powers is void. Judicial review is excluded when it is found that executives maintain the standard of reasonableness in their decisions. Errors often creep in either because they would maintain pure administrative spirit as opposed to judicial flavor or that they influence their decisions by some irrelevant considerations or that sometimes, the authorities may themselves misdirect in law or that they may not apply their mind to the facts and circumstances of the cases. Besides, in this aspect, they may act in derogation of fundamental principles of natural justice by not conforming to the standard or reasons and justice or that they do not just truly appreciate the existence or non-existence of circumstances that may entitle them to exercise the discretion.

 

“The Executive has to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matters nor should they take into account considerations that are wholly irrelevant or extraneous. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The courts have the power to see that the Executive acts lawfully. They cannot avoid scrutiny by courts by failing to give reasons. If they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters though the propriety adequacy or satisfactory character of these reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.”

 

The role of writs is also sensibly laid down in a famous PADFIELD’S CASE In England, in earlier days the Courts usually refused to interfere where the Government or the concerned officer passed what was called a non-speaking order, that is, an order which on the face of it did not specify the reasons for the orders. Where a speaking order was passed the Courts proceeded to consider whether the reasons given for the order or decision were relevant. Where there was a non-speaking order they used to say that it was like the face of the Sphinx in the sense that it was incurable and therefore hold that they could not consider the question of the validity of the order. Even in England, the Courts have traveled very far since those days. They no longer find the face of the Sphinx inscrutable.

 

9. Conclusion:

 

The 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 emphasize that the absence of arbitrary power is the first essential of the rule of law upon which the whole constitutional 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 defined 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 based on any principle or rules then such decision is arbitrary and is taken not following the rule of law.

 

The Constitution is the law of the laws and nobody is supreme. Even the judges of the Supreme Court are not above law and they are bound by the decisions which are the law of the land declared by them under the writ petitions. Thus, the constitutional remedies provided under the constitution operate as a check and keeps the administration of government within the bounds of the law. In our country the judiciary or law is supreme. Writ jurisdictions are judicial reviews of administrative actions. Judiciaries always stand to ensure that all administrative actions are confined to the limits of the law. Thus, the writ jurisdictions act as judicial restraints of policy decisions that are unreasonable, unfair, and against the public interest.

 

 

 

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