CONSTITUTIONAL REMEDYS AND

EXHAUSTION DOCTRINE
By
FAKHAR MAHMOOD MAKHDOOM*
Etymologically the Constitutional remedy of Writ means a written order, which is a remedial
right for the enforcement of substantive rights .
In England the writs are issued by the Crown as head of judicial system by virtue of his
“Prerogatives”.
Since the second World War, due to tremendous increase in number of Administrative bodies
leading to greater interference with the rights of ordinary citizens, the Law relating to judicial
control over these administrative bodies has to be relaxed and many technical rules relating to the
writs have been abandoned or modified so that the judiciary can give greater relief in a large
number of cases.
The superior Courts are generally considered to be aware of the fact that there are innumerable
forums provided by Law to deal with the disputed actions of Public functionaries, and if the
courts themselves assume the role of administrative bodies in general, they will not only disturb
the administrative but also judicial set up. As a matter of fact the framers of
our Constitution have put a lot of responsibility upon the High Courts by conferring discretionary
jurisdiction. It is axiomatic that discretion has to be exercised judiciously, but it may be stressed
that the objective of the framers is to arm the Court with this power to provide remedy to
deserving persons instead of leaning towards technicalities .
Historically under English Law, Exhaustion Rule was only applied to mandamus only and was
not extended to prohibition or certiorari. It is so rigorously followed that even writ of mandamus
was not granted on the score that another kind of prerogative writ is available but today courts are
not very particular in this respect. However the general principle is that mandamus will be
refused when there is a right of action under the general law.
In India the concept developed that whenever a party takes the plea of infringement of
Fundamental Rights, the Exhaustion Rule will be of no avail .
In Pakistan, Article 170 of the 1956 Constitution followed this rule on English pattern wherein,
restriction of exhaustion was not a constitutional bar, and it was only a self-imposed restriction.
Situation under Constitution of 1962 is altogether different wherein Article 98 made it a condition
precedent for grant of relief. Under the present Constitution of 1973, courts may issue an order
under Article 199 if the law provides no other adequate remedy. Since Constitution itself did not
provide any detail of scope of this restriction hence it is the discretion of court to interpret.
Nature and Scope
The term “alternative remedy” was taken to mean an equally efficacious remedy grated by law. It
is in fact meant to supplement and not supplant what the law has already provided. The
complainant of breach of Statute must first avail of the remedy provided by the statute before
applying for a Constitutional remedy. An indulgence to the contrary would be calculated to create
distrust in statutory tribunals of competent jurisdiction.
Sir John Donaldson MR has said, “Where Parliament provides an appeal procedure, judicial
review will have no place” . In another case he said, “it is cardinal principle that save in the most
exceptional circumstances, the judicial review jurisdiction will not be exercised where other
remedies were available and have not been used” .
The question whether a remedy is adequate or not depends on the facts and circumstances of each
case. The adequacy of remedy will be judged in relation to:
a) The nature and extent of the relief to be obtained through the alternative remedy.
b) The point of time when the relief would be available particularly the conditions
relating to the expense and inconvenience involved in obtaining it .
Similarly the question of other adequate remedy being available is of no consequence for the
issue of writ of Habeas Corpus where the question of liberty of a person is involved. The plea of
want of adequate remedy is not available where the difficulty in pursuing the remedy was created
by petitioner himself . The word “adequate” signifies a concept of a relative nature. It can be
comprehended only as a state of correspondence between one thing and another. A thing can be”
adequate“or “not adequate” to something else as for example “not adequate to the expectations”.
In language, adequate to describe it or adequate to disease. When something is described as being
adequate without indicating what it is adequate - to, the context must supply that which has been
left unstated.
The first question in construing the meaning of “adequate remedy” therefore is ……… to what
was the remedy to be adequate?
In this context we think the answer must be that the remedy has to be adequate to the relief, i.e.
the removal or lessening of the cause of distress or anxiety; the deliverance from that which is
burdensome.
In the words of well-known Persian proverb “while the antidote is being brought
from Iraq (metaphor for a distant land) the victim of snake-bite will be dead ”. Courts
in Pakistan have evolved different yardsticks to judge the adequacy criteria. Subsequent trend in
this context normally relates to three considerations:
a) The nature and extent of the relief.
b) The point of time when that relief would be available.
c) The conditions on which the relief would be available i.e. expenses and
inconvenience involved .
Determination of Adequacy of Alternative remedy
The principle of Exhaustion was a rule of judicial policy in India till 1976 rather it was a rule of
policy, convenience and discretion rather than rule of law . However by the Constitution (Forty
Second) Amendment Act 1976, Rule of Exhaustion of alternative remedies was converted into a
Rule of Law, and condition of non maintainability was adequacy and equally efficacious remedy .
The remedy in order to restrict the powers of High Court to act in the matter should be specific,
adequate, prompt and efficacious . But where the party applying for a writ had not availed of the
remedy of appeal provided by Special Law, it was held that no writ of certiorari or mandamus or
any other discretionary order of that nature should have been issued by the High Court.
Former Chief Justice Munir in a celebrated case in this respect has remarked that it is wrong on
principle for the High Court to entertain petitions for writs except in very exceptional
circumstances when the law provides a remedy by way of appeal to other tribunal fully competent
to award the requisite relief. The leading case on test of adequacy is Mahboob Ali Malik’s
case wherein the terms and conditions of service of petitioners were altered by the Municipal
Corporation to his disadvantage and which were challenged by the petitioner in the Constitutional
Jurisdiction while taking the plea that alternative remedy of civil suit is not adequate and
efficacious. The question thus referred to the full bench was that whether it is open to the court to
entertain this petition and whether it is satisfied that there is no other adequate remedy available.
The full bench held that if there is another relief but that relief would not be available when
petitioner needs it most, is that remedy to be regarded as an adequate remedy or not? , is within
the meaning of Article 98 of the Constitution. It was further held that if a person is suffering from
pain that is continuing and two remedies are available, one that will remove the pain after a few
days of treatment and the other that will remove it after few weeks of treatment, the second one is
not adequate in this case.
This precedent was subsequently approved by Supreme Court in the case titled Presiding Officer
vs Sadruddin Ansari wherein the action of Presiding Officer, of declaring some ballot papers
invalid, was held to be wholly arbitrary on the ground that the courts in exercise of writ
jurisdiction ordinarily declined to interfere in election cases.
The question whether or not a particular remedy is adequate remedy will always depend on the
facts of each case. In cases of excess of jurisdiction, a petition under Article 98 lies
notwithstanding the existence of other alternative remedy .
The adequacy of the alternative remedy must further be judged with reference to comparison of
the speed, expense or convenience of obtaining that relief through the alternative remedy, with
the speed, expense, or convenience of obtaining it under writ jurisdiction
The discretion vested in High Court under writ jurisdiction is a judicial discretion and had to be
exercised on an examination of the facts and circumstances of the case .
In Pakistan, the judicial attitude in relation to different remedies shows the following pattern:
a) Civil Suit
Generally civil suit is not considered as an adequate remedy because of amount of time it takes.
In fact it involves the determination of disputed questions of facts. Where High Court dismissed
the writ petitions on the ground of existence of suit as alternative remedy, the Supreme Court held
that to disentitle a person from constitutional remedy on exhaustion rule, the alternative remedy
must be remedy in law i.e. Remedium Juris and one which is not convenient, beneficial and
effective is not alternative remedy .
Where it is apparent from the facts of a particular case that some questions are pending decision
in a civil litigation, the High Court should not during the pendency of that litigation take upon
itself to decide the same question under writ jurisdiction. In such cases the parties concerned
should be left to pursue their litigations in the ordinary courts and should not be allowed to short-
circuit them by petition under Article 98 of constitution. Resort to High courts summary
jurisdiction should not be permitted if it amounts to circumvention of the normal process of law .
However a petitioner is not debarred to approach the High Court if he withdraws the suit already
pending in civil court .
It is important to note that despite the Tariq Transport Company case the Exhaustion bar was
strictly applied only to writ of mandamus but not to that of certiorari or prohibition.
b) Appeal
Appeal is normally considered as an adequate remedy but exceptions may be there e.g. where
appeal is illusory or if the order does not disclose the reasons or if the appellate tribunal has not
been constituted or if in appeal the matter involves the interpretation of Constitution or the
question is of public importance or if the petitioner is challenging the vires of the legislation.
Where the party applying for a writ had not availed of the remedy provided by some special law
or had not appealed from the order of the authority, it was held that writ should not have
been issued . Direct access to High Court for relief, by passing the special forums created by
special law, is not permissible .
But when the appellants themselves had invoked the statutory remedy of second appeal, no
exception can be taken to the view taken by the High Court that in the presence of the pending
appeal, the writ jurisdiction can not be invoked .
c) Revision
High Courts enjoy vast discretion in this context. In criminal cases revision is considered as an
adequate remedy whereas in civil cases the situation is not yet clear.
So when other remedy in the shape of criminal revision under section 435 Cr. P.C was
available but not availed of it, was held that writ jurisdiction can not beinvoked .
But in cases of civil revision on one hand a writ petition was held not barred even when the
remedy of revision was not availed of by the petitioner on the other hand a writ petition was
dismissed on the ground that petitioners had not exhausted the remedy of civil revision available
to them before approaching the High Court .
However, suo moto revisional powers vested in tribunal for example Lahore Appellate Tribunal
under section 38 (3)(a) of Industrial Relations Ordinance 1969 can not be held to be an adequate
remedy available to be petitioner in order to disentitle him to file a writ petition .
Supreme Court has ruled that revision is not necessarily an adequate remedy . Failure to have
recourse to the revisional remedy does not necessarily operate as a bar for invocation of
constitutional jurisdiction . In fact revision is a discretionary remedy and it cannot be called for as
of right, on this reasoning, it is not regarded as adequate remedy .
d) Review
Since scope of review is very limited hence it is not considered an adequate remedy. If the
impugned order contains an error, which is correctable by review, then review is considered as
adequate remedy. The remedy of review within the meaning of section 17 of Punjab Local
Government Ordinance 1979 was held would not stand in the way of issuing writ, as doing so
amounts to denial of relief under Article 199 . Where the right of filing review petition was given
to the petitioner who failed to avail of such right, he was held not entitled to get any relief by way
of constitutional petition .
e) Election Petition
Primarily there are two kinds of elections, one held under the ordinary law i.e. statutory, and the
other held under the Constitution. An election petition is generally considered to be an adequate
remedy. Even otherwise an election held under the Constitution cannot be challenged except by
an election petition presented in accordance with law. The existence of an alternative remedy did
not affect the jurisdiction of court to grant a writ in proper case. In case of grave injustice
resulting from the non-exercise of writ jurisdiction, the court did not decline to issue a writ
simply because the relief claimed could be had by some other proceedings .
Elections under the Representation of People Act 1951 can only be challenged by an election
petition under that Act and writ is not maintainable in this case .
f) Other Statutory Remedies
Contracts cannot be enforced through writ petitions, as there are alternative remedies available
either to file a suit or to invoke arbitration clause . A petitioner who has not availed remedy under
Employees Old Age Benefits Act 1976 cannot invoke Constitutional remedy . The remedy under
section 10 of Industrial Disputes Act is an adequate remedy . Departmental remedy against wrong
electricity bill is adequate remedy . In the same fashion Income Tax Tribunals are competent to
redress any grievance concerning tax assessment and writ cannot be preferred to bypass
this remedy . Similarly High Court will not entertain any right if Security & Exchange
Commissioner’s remedial scheme is not availed , Excise Duty Tribunal’s remedy is not
exhausted or petition is not filed before Federal Ombudsman ]
Exceptions to the Exhaustion Rule
The existence of an alternative remedy and its non-exhaustion is not a ground for refusing
Constitutional relief in following cases namely: The absence or excess of jurisdiction , An error
apparent on the face of record , Violation of principles of natural justice , Contravention of
Fundamental Rights , An error being absolute nullity . Similarly a person could not be concluded
by not appealing against a nullity .
What are not alternative Remedies
The possibility of having the following remedies has not been considered remedies for refusing
relief under Constitution :
a) Where alternative remedy is too dilatory or difficult to give quick relief.
b) Where the Act which provides alternative remedy is itself unconstitutional
c) Where the statutory rule under which the order has been passed in itself ultra vires
the statute under which the order has been made .
d) Where the restoration of property should be made in order to rectify the court’s
own mistake .
e) Where the alternative remedy is ineffective, delayed .
f) Where the forum, which is to grant relief in the shape of alternative remedy, is
not competent to do so as per Constitutional directive or it is incompetent to
adjudicate upon the subject matter .
g) Where the remedy itself is meaningless or involves extraordinary hardships for
petitioner.
The above discussion tends to conclude that the rule of Alternative Remedy or Exhaustion rule is
not considered as a rule of law, if there is a defect of jurisdiction particularly lack of jurisdiction.
It is in fact a rule by which the courts regulate their own discretion. Therefore if a court or
authority passes an order by exceeding its jurisdiction and even if the remedy of appeal or
revision against such order is available, Constitutional petition would be competently invoked
against such order.
It must be remembered that object of Exhaustion Doctrine is to supplement and not to supplant
what the law has already provided.
As a matter of fact the framers of our Constitution of 1973 have put a lot of responsibility upon
the High court by conferring discretionary jurisdiction. It is axiomatic that discretion has to be
used judiciously but it may be stressed that the objective of the framers is to arm the court with
this power to provide remedy to deserving persons instead leaning towards technicalities.
Superior Courts are not expected to exercise the discretion to perpetuate injustice on mere pretext
of policy and convenience.Denial of relief on the ground of availability of any other forum is
justified only where justice and reason warrants it. Justice Jackson of United States Supreme
Court once rightly observed, “It might be preferable to live under Russian Law applied by
Common Law procedures than under the Common Law enforced by Russian Law Procedures” .
REFERENCES:
1. M. R. Malik, “ Writs, Law and Practice “ 2000 edn. Pg.1
2. I,R.C. vs Federation of self Employed (1981)2 AllER 93
3. The Constitution of Islamic Republic of Pakistan 1973.
4. Adamjee Insurance Company Ltd. vs Pakistan, 1993 SCMR 1798
5. Himmatlal vs State of M.P., AIR 1954 SC 403
6. R. vs Secretary of State for Home Department ex-parte Swati (1986) 1-WLR 477 (CA)
7. R vs Epping & Harlow General Commissioners (1983) 3 AllER 257
8. Mahboob Ali Malik vs Province of West Pakistan PLD 1963 Lah 575
9. District Magistrate Lahore vs syed Raza Kazim PLD 1961 SC 178
10. PLD 1963 Lah. 575 ibid.
11. Anjuman-e-Ahmadiya vs D.C. Sargodha PLD 1966 SC 639
12. State of U.P. vs Mohammad Nooh AIR 1958 SC 86
13. Vellaswamy vs I.G. of Police AIR 1982 SC 82
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15. Tariq Transport Co. Lhr. vs Sargodha Bhera Bus Service PLD 1958 SC 437
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17. PLD 1967 SC 569
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51. EX. 111at 1351853Bunbury vs Fullur
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61. Shughnessy vs U.S, 345 U.S. 206 (1953)