Writ of Prohibition as an instrument of Control

 

Rachi Singh and Viplav Baranwal

Hidayatullah National Law University, Raipur

 

INTRODUCTION:

Administrative Law basically deals with powers and functions of Administrative Authorities and its main purpose is to exercise control over the Executive and through the medium of writ mechanism this purpose is achieved and Writ of Prohibition is preventive in nature.

 

Meaning of Administrative Law

Administrative law is the branch of law that oversees the bodies of government that are responsible for administration. Agencies that function in an administrative capacity generally work as a branch of public law and deal with decision-making arms of the government. Boards, agencies and commissions are bodies that function as part of the administrative law system. As legislative bodies the world over have created additional government agencies to regulate social, political and economic cultures since the early 1900s, this type of law has expanded internationally. Regulatory administrative laws apply to public officials and public agencies. Administrative authority is different from legislative or judicial authority in that it includes the power to create rules and regulations based on the statutes that legislative authorities put into effect. These bodies also have the power to grant licenses and permits, begin investigations and provide remedies to complaints, oversee the conduct of the business of government and issue orders to parties to comply with certain rules or laws. Administrative law judges are government officials who act under quasi-judicial powers in conducting hearings, issuing findings of fact and issuing orders of compliance. ¹

 

Introduction of Writs in India

Writs were first introduced in India in 1774 by a Royal Charter of Britain. During this period, The East India Company started to be subjected to parliamentary control. The Charter created a Supreme Court at Calcutta and conferred on it the right to issue all writs as were issued in England. Subsequently, Supreme Courts of Judicature were added in Madras in 1800 and Bombay in 1823 with similar provisions. Later, the three supreme courts were replaced by High courts in the same places by the Indian High Courts Act of 1861, but the power to issue writs was confined only to those three high courts and that too within their jurisdictions only for writs of prohibition and certiorari. The other high courts in India created under the Act did not have any power to issue writs. Slowly, the authority to issue writs of Habeas Corpus and Mandamus was curtailed and taken away .This remained the scenario until 1950. ²

 

Writ of Prohibition: The writ of Prohibition is issued by a superior court to a court below it ordering it not to overstep its jurisdiction. One can apply for a writ of prohibition if one feels that the court which has taken on the case has no jurisdiction over it. On receiving the writ of prohibition, the court will not try the case. In this way, the case will be tried by the body which has jurisdiction to try the case.

 

 

 

It is a preventive step. The Writ of Prohibition may only be used on judicial or quasi-judicial bodies.  The writ of prohibition has a very ancient history and was present in the 11th century in EnglandWrit of Prohibition: The writ of Prohibition is issued by a superior court to a court below it ordering it not to overstep its jurisdiction. One can apply for a writ of prohibition if one feels that the court which has taken on the case has no jurisdiction over it. On receiving the writ of prohibition, the court will not try the case. In this way, the case will be tried by the body which has jurisdiction to try the case. It is a preventive step. The Writ of Prohibition may only be used on judicial or quasi-judicial bodies.  The writ of prohibition has a very ancient history and was present in the 11th century in England.

 

In Hari Vishnu Kamath v. Ahmad Ishaaqe  the Supreme Court explained the writ of Prohibition.

Prohibition is an extra ordinary 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  it was explained that the 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 in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise. ³

 

Application of the Writ of Prohibition

The writ of Prohibition is issued, inter alia on the following grounds:

•      When the body concerned proceeds to act without, or an excess of, jurisdiction, or

•      Fails to exercise its Jurisdiction ; or

•      There is an error of law apparent on the face of record in the decision of the body; or

•      The finding of fact reached by the inferior tribunal are based on no evidence; or

•      It proceeds to act in violation of principle of natural justice; or

•      It proceeds to act under a law which is itself invalid, ultra vires; or

•      It proceeds to act in contravention of Fundamental Rig

 

In STC v. Mysore , it was argued that that the taxing officer was acting in a quasi-judicial activity; he had the jurisdiction to decide whether a particular sale is was inter-State or not , and any error committed by him in deciding the question the question falling within his jurisdiction would not offend any fundamental right . The Court held that that the taxing officer had no jurisdiction to tax inter-State sales because of the Constitutional prohibition and he could not give himself a jurisdiction to tax such a sale by deciding a collateral fact wrongly.

 

The Supreme Court has explained in Coffee Board v. Commercial Tax Officer , that a petitioner has a right to move a writ petition under Article 32 to challenge a quasi-judicial decision where the action is proposed to be taken under an ultra vires statute, or where the action is taken without jurisdiction, or without following natural justice.

If a quasi-judicial authority acts without jurisdiction, or wrongly assumes jurisdiction by committing an error as to collateral fact and the resultant action threatens or violates a fundamental right, the question of enforcement of that right arises and petition under article 32 will lie.⁴

 

CONCLUSION:

Granting of discretionary power is a very common phenomenon in this era of modern administrative and constitutional machinery. It has become necessary to provide for discretionary power to law making agencies that legislates the law on any subject to serve the public interest. The discretionary power has to be exercised in good faith and must be 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 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.

 

The Writ Mechanism acts as an effective tool to control the acts of the Executive that is in violation of fundamental rights. The Writ of prohibition acts as an instrument of control on the judicial and quasi judicial bodies. The Writ of prohibition prevents these bodies in not trying the disputes that does not fall in their respective jurisdiction

 

REFERENCES:

1.       Whitaker Chalk Swindle & Schwartz PLLC, Administrative Law (August 19, 2013), http://www.whitakerchalk.com/Area/administrative.html

2.       LL Cool J, The origin, development and role of writ petitions in England and India (August 16, 2013) http://www.indiastudychannel.com/resources/150474-The-origin-development-role-writ.aspx

3.       Shivangi M. Rana, Role Of Writs In The Administrative Law (August 17, 2013)

4.       http://www.legalserviceindia.com/article/l402-Role-Of-Writs-In-The-Administrative-Law.htmlCoffee Board, Bangalore Vs Joint Commercial Tax Officer, Madras and Another (August 17, 2013) http://www.spotlaw.in/text/910011969/9100119691029001.HTM