INTRODUCTION.

Public administration exercises a large volume of power to meet the citizens need in
modern democratic welfare state. Today administration is not concerned with only pure
administrative function but also involved with a large number of quasi-legislative and
quasi-judicial functions. For this respect they have a number of chances to become
arbitrary or master of the citizens. So it is very necessary to control them.
The existing control systems are legislative, executive and judicial.
In modern times the administrative process as a by product of intensive form of
government cuts across the traditional forms of governmental powers and combines into
one all the powers which were traditionally exercised by three different organs of the
state. In Halsbery's Laws of England also it is stated that howsoever the term the
Executive' or 'the Administration' is employed, there is no implication that the functions
of the executive are confined exclusively to those of an executive or administrative
character. Today, the executive performs variegated functions, viz. to investigate, to
prosecute, to prepare and to adopt schemes, to issue and cancel licences, etc.
(administrative); to adjudicate on disputes, to impose fine and penalty, etc. (Judicial); to
make rules, regulations and bye laws, to fix prices etc. (Legislative). Schwartz rightly
states that rulemaking (quasi-legislative) and adjudication (quasi-judicial) have become
the chief weapons in the administrative armoury.
Thus, speaking generally, an administrative action can be classified into four categories:
1. Rule - making action or quasi-legislative action;
2. Rule decision action or quasi-judicial action;
3. Rule-application action or administrative action; and
4. Ministerial action.

1
SCOPE OF JUDICIAL CONTROL OVER ADMINISTRATIVE ACTION.
In the context of ever-expanding activities of government and discretionary powers
vested in the various administrative agencies and public officials, the need to protect and
safeguard the citizen's rights assumes significance and priority. In developing societies
where the state is playing an important role in development, judiciary has a special
responsibility to ensure social justice to the underprivileged sections of the community.
However, it must be admitted that the courts can not interfere in the
administrative activities on their own accord even if such activities are arbitrary. They act
only when their intervention is sought. Judicial intervention is restrictive in nature and
limited in its scope. Generally judicial intervention in administrative activities is confined
to the following cases:
a) Lack of Jurisdiction: If any public official or administrative agency acts without or
beyond his/her or its authority or jurisdiction the courts can declare such acts as ultra
vires. For instance, according to administrative rules and procedures, in all organizations,
the competent authority is identified for taking decisions and actions. If any authority or
person other than the competent authority takes action, the court's intervention can be
sought under the provisions of lack of jurisdiction.
b) Error of Law: This category of cases arises when the official misconstrues the law and
imposes upon the citizen obligations, which are absent in law. This is called misfeasance
in legal terminology. The courts are empowered to set right such cases.
c) Error of Fact: This category of cases is a result of error in discovering cases and
actions taken on basis of wrong assumptions. Any citizen adversely affected by error of
judgment of public official can approach courts for redressal.
d) Error of Procedure: "Due procedure" is the basis of governmental action in a
democracy. Responsible government means a government by procedure. Procedure in
administration ensures accountability, openness and justice. Public officials must act in
accordance with the procedure laid down by law in the performance of the administrative
activities. If the prescribed procedure is not followed the intervention of the courts can be
sought and legality of administrative actions can be questioned.
e) Abuse of authority: If a public official exercises his/her authority vindictively to harm
a person or use authority for personal gain, court's intervention can be sought. In legal

2
terms, it is called malfeasance. The courts can intervene to correct the malfeasance of
administrative acts.

REMEDIES AVAILABLE AGAINST THE ADMINISTRATIVE ACTION.

The administrative law provides for the measures to control the administrative action by
any outside agency, strong enough to prevent injustice to the individuals, leaving
adequate freedom to the administration to carry on effective government. Lord Denning
has rightly observed that “properly exercised the new powers of the executive lead to the
Welfare State, but abused they lead to the Totalitarian State” 1. Ubi jus ibi remedium
(where there is a right there is a remedy) has been adopted as the fundamental concept in
the English and Indian legal systems. Rights and remedy are two sides of the same coin
and can not be disassociated with from each other.
The remedies available to an individual aggrieved by administrative action may
be classified as follows:
a) Prerogative remedies;
b) Constitutional remedies;
c) Statutory remedies;
d) Equitable remedies;
e) Common law remedies;
f) Parliamentary remedies;
g) Conseil d’ Etat;
h) Ombudsman; and
i) Self-help.

JUDICIAL CONTROL THROUGH WRITS.

The prerogative remedies against the administrative actions are available in the nature of
the “prerogative writs”. Though, it’s not feasible to chalk out a scientific definition of
writ, but as the name suggests, it is a writ specially associated with the King.

1
Freedom under the Law, 1949, p. 126.

3
 Tracing back to its historical origin, in England, the high prerogative writs played
a very important role in upholding the rights and liberties of the subjects and in providing
effective safeguards against arbitrary exercise of power by public authorities.

Constitutional Provisions in India.

Under the provisions of the Regulating Act, 1773, three Supreme Courts were established
at Calcutta, Madras and Bombay by issuing a Royal Charter and they were vested with
powers to issue the high prerogative writs. The said power was also conferred on High
Courts established under the Indian High Courts Act, 1861 and since then, the High
Courts exercise the power to issue the prerogative writs to protect the rights of
individuals.
The founding fathers of the Indian Constitution have inserted some specific
provisions in the Constitution, that empower the Supreme Court and High Courts to issue
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari for the enforcement of Fundamental Rights (Articles 32 and 226) and also for
other purposes (Article 226).

WRIT OF HABEAS CORPUS.

It is one of the most ancient writs known in the Common Law of England. The phrase
‘habeas corpus’ means ‘have the body’. This is a writ in nature of the order given to the
person, who has detained another person to bring the body of the latter before the court to
let the court know on what ground he has been confined and to set him free if there is no
legal justification for the imprisonment2. Through this writ, the courts direct the person or
authority who has illegally detained another person to bring the body of the prisoner
before the court so that the court may decide the validity, jurisdiction or justification for
such detention.

Object.
The writ of habeas corpus provides a prompt and effective remedy against illegal
restraints. The prime object of this writ is to provide a swift judicial review of the illegal

2
State of Bihar v. Kameshwa, AIR 1965 SC 575 (577).

4
detention. Lord Wright states “the incalculable value of habeas corpus is that it enables
the immediate determination of the right of the appellant’s freedom”3. ‘If the court comes
to the conclusion that there is no illegal justification for the imprisonment of the person
concerned, the court will pass an order to set him liberty forthwith’4. In R v. Home Secy.,
ex p Greene5, the court held that “the question for a habeas corpus is whether the subject
is lawfully detained. If he is, the writ can not issue, if he is not, it must issue.”
In Suneil Btra v. State of Maharastra6, the Supreme Court widened the scope of
the writ by giving relief against the inhuman and cruel treatment with the prisoners in jail.

History.
In England, this writ is of Common Law origin. In India, this writ came into being with
the establishment of Supreme Court in Calcutta, Bombay, Madras under the Regulating
Act, 1773. With the abolition of the Supreme Courts and establishments of the High
Courts, this power has been conferred on High Courts. Under the Indian Constitution, the
Supreme Court (under Article 32) and all the High Courts (under Article 226) have been
conferred the power to issue the writ of habeas corpus.

Who may apply?

There is no hard and fast rule for making an application for this writ. Any one can apply
for this writ under Article 32 before the Supreme Court and under Article 226 before the
High Court. The person, who has been illegally detained, can make the application this
writ7. But if the detained person, himself is not in the condition to make an application,
the other persons having interests in him, like wife8, father9 or even a friend, can make
application on his behalf. He should, however, not be a total stranger10. An advocate
should get a power of attorney from the prisoner, if he acts as advocate 11. Even a public
spirited person can approach the court for this writ. The Supreme Court has treated a
3
Greene v. Home Secy., (1942) AC 284 (302): (1941) 3 All ER 388.
4
Ghulam Sarwar v. Union of India, AIR 1967 SC 1335.
5
(1941) 3 All ER 104 (105).
6
AIR 1983 SC 378.
7
Charanjit Lal v. Union of India, AIR 1951 SC 41: 1950 SCR 869.
8
Emperor v. Vimlabai, AIR 1946 PC 123.
9
Sundarajan v. Union of India, AIR 1970 Del 29.
10
Ibid.
11
Vidya Verma v. Shive Narain, (1955) 2 SCR 983.

5
telegram or a letter as a petition for this writ12. Habeas Corpus is an exception to the rule
that only the aggrieved person can make the petition for a writ.

Against whom Habeas Corpus lies?

It may lie against any person or authority, who has illegally detained or arrested the
prisoner. The writ would be issued to the person who has the physical custody of the
prisoner or whose behalf the writ is sought13. It would also be issued to the person, who
has the constructive custody of the prisoner14.

Procedure.
The application for the writ of habeas corpus must be accompanied by an affidavit
stating the facts and circumstances leading to the making of such an application. If the
court is satisfied that there is prima facie case for granting the prayer, it will issue a rule
nisi calling upon the detaining authority to show cause as to why the rule nisi should not
be made absolute. On the day of presenting the show cause, the court will consider the
merits of the case and will pass an appropriate order. If the court is satisfied that the
detention was not justified, it will issue the writ and direct the detaining authority to set
the prisoner at large, forthwith. But if the court is of opinion that the detention was
justified, it will discharge the rule nisi. If there is no return to the rule nisi, the prisoner is
entitled to be released forthwith15.
Delay in applying for the writ of habeas corpus does not disentitle the petitioner
for the relief. Right of personal liberty, being one of the fundamental rights guaranteed
under Part – III of the Constitution, can not be waived and a petition for the writ of
habeas corpus can not be dismissed on mere ground of delay.

Duty of the State.

The duty imposed upon the State in the Habeas Corpus petition, where a Rule Nisi has
been issued, is to satisfy the Court that the detention of the petitioner was legal and in
conformity of the mandatory provisions of the Act, as well as in accordance with the
12
Sunil Batra v. Delhi Admin., AIR 1980 SC 1579.
13
R. v. Earl of Crème, (1910) 2 KB 567.
14
Bernardo v. Ford, (1982) AC 326.
15
State of Bihar v. Kameshwar, AIR 1965 SC 575: (1963) 2 SCR 183.

6
requirements of Art. 22(5). If the State fails to justify the inordinate delay in the
representation of the detenue, or fails to explain the reason behind non-compliance with
the Act, the detention must be held illegal16.

Production of the Detenue.

The writ of habeas corpus has the object of release of the detained person. The
production of the detained person is ancillary to the main object of the writ. It is merely
the means of achieving the end, which is to secure the liberty of the detenue. The
production of the body of the before the Supreme Court, under Art. 32 is not an essential
element of the jurisdiction of the Supreme Court to deal with the application. This point
was discussed in the landmark case of Kanu Sanyal v. District Magistrate, Darjeeling17.

Refusal to obey the order of habeas corpus.

The writ of habeas corpus has to be obeyed by the person or the authority to whom it is
addressed. To refuse to do so amounts to contempt of court18. Any willful interference
with the power of the high courts in their habeas corpus jurisdiction also amounts to
contempt19.

Res Judicata.
In England, under the Common Law successive applications for a writ of habeas corpus
were maintainable. The detenue can present the application to each judge consecutively.
In India, Allahabad High Court rules forbid the second application and the Rules of
Bombay and Nagpur High Courts take a contra view. Art.32 of the Constitution, being
itself a fundamental right, the remedy can not be denied on the mere ground that the there
was prior unsuccessful application on the same facts under Art.226. The principle
enunciated in A. K. Gopalan v. State of M.P20, that where appli8cations under Ar. 226
have been dismissed, and no appeal filed therefore, a direct approach under Art. 32 ought

16
Niranjan Singh v. State of Madhya Pradesh, AIR 1972 SC 2215.
17
AIR 1973 SC 2684.
18
Mohd. Ikram v. State of U.P., AIR 1964 SC 1625.
19
State v. Somnath, AIR 1953 Ori 33.
20
AIR 1954 SC 362.

7
not to be encouraged for very good reason, can not be strictly applied to the cases of
infringement of fundamental right.

PREVENTIVE DETENTION.
Preventive detention means detention of a person without trial. The order of preventive
detention is issued by an executive authority in subjective satisfaction. Thus preventive
detention involves serious encroachment upon the personal liberty. Because of the
prevalence of preventive detention in India, petitions of habeas corpus often come before
courts to challenge the preventive detention order.
Whenever the petition for the writ of habeas corpus comes before the court, it has
almost invariably issued a rule nisi to the detaining authority to justify the detention. The
detaining authority is thereafter burdened with the duty to justify the detention. The
authority has to present all the material evidences that reveal that the detention was
according to the provisions of law21.

LIMITAIONS OF JUDICIAL CONTROL.

The effectiveness of judicial control over administration is limited by many factors. Some of
these limitations are:
1. Unmanageable volume of work: the judiciary is not able to cope up with the volume
of work. In a year the courts are able to deal with only a fraction of cases brought
before it. Thousands of cases have been pending in Supreme Court, High Courts and
Lower Courts for years together for want of time. There is an increase in the cases of
litigation without a commensurate expansion of judicial mechanism. The old adage of
'justice delayed is justice denied’ still holds good. This excessive delay in the delivery
of justice discourages many to approach the court. The feeling of helplessness results
in denial of justice to many.
2. Post-mortem nature of judicial control: In most of the cases the judicial intervention
comes only after enough damage is done by the administrative actions. Even if the
courts set right the wrong done, there is no mechanism to redress the trouble the
citizen has undergone in the process.

21
Ichhu Devi v. Union of India, AIR 1975 SC 1983.

8
3. Prohibitive Costs: the judicial process is costly and only rich can afford it. There is
some truth in the criticism of pro-rich bias of judicial system in India. As a result,
only rich are able to seek the protection of courts from the administrative abuses. The
poor are, in most cases, the helpless victims of the administrative arbitrariness and
judicial inaction. As V.R. Krishna Iyer pointed 'the portals of justice are not
accessible to the poor'.
4. Cumbersome procedure: Many legal procedures are beyond the comprehension of
common man. The procedural tyranny frightens many from approaching the courts.
Even though the procedures have a positive dimension of ensuring fair play, too
much of it negatives the whole process.
5. Statutory limitations: the courts may be statutorily prevented from exercising
jurisdiction in certain spheres. There are several administrative acts, which cannot be
reviewed by courts.
6. Specialised nature of administrative actions: The highly technical nature of some
administrative actions act as a further limitation on judicial control. The judges, who
are only legal experts, may not be able to sufficiently appreciate the technical
implications of administrative actions. As a result, their judgments may not be
authentic.
7. Lack of awareness: In developing societies, most of the people who are poor and
illiterate are not aware of judicial remedies and the role of the courts. As a result they
may not even approach the court to redress their grievances. The courts which can
intervene only when it is sought may be helpless in this situation. The general
deprivation of people also results in deprivation of justice to them.
8. Erosion of autonomy of judiciary: There is executive interference in the working of
judiciary. The quality of judiciary mostly depends on the quality of the judges. The
Law Commission made many recommendations to ensure the judicial standards of
the bench. The suggestion to create Judicial Commission with responsibility for
judicial appointments deserves serious consideration. In recent years, there are many
allegations of corruption against judges. This undermines the prestige and the
effectiveness of the judiciary.

9
Many steps have been initiated to overcome some of the limitations mentioned above. In the
succeeding paragraphs, we shall discuss some of these measures, in particular, Public Interest
Litigation, Legal Aid and Nyaya Panchayats.
CONCLUSION.
In a democracy, the primary objective of judicial system is to ensure citizen's rights. The
judicial system in India is based on the principles of independence of judiciary from
executive and the single unified system of judiciary. The main purpose of judicial control
over administration is to ensure the legality of administrative actions. The judiciary has an
important role to play in the application of rule of law.
The state has several times tried to impinge upon the right to life and liberty of the
individual. To do away with such situations, the writ of habeas corpus is applied.

10
BIBLIOGRAPHY.
Text books.

this essay deals with the rule of fair hearing, as an essential component of the natural
justice. The essay also contains the case-laws on that point.
NATURAL JUSTICE AND RULE OF FAIR HEARING

11