Module 5: Judicial Review of Administrative Actions

Meaning and Definition of Judicial Review

Judicial Review is the authority of the courts to declare void the Acts of the legislature and executive, if they
are found in the violation of the provisions of the Constitution. It is the power of the highest court of a
jurisdiction to invalidate on Constitutional grounds, the acts of the Govt. agency within that jurisdiction. It is
based on general principles of rule of law, separation of powers, federalism and fundamental rights.
In India judicial review deals with three aspects:
 Judicial review of legislative action
 Judicial review of judicial decision
 Judicial review of administrative action
Object of judicial review:
1. To ensure that the Public Authority does not abuse its power and the individual receives just and fair
treatment and not to ensure that the authority reaches a conclusion which is correct in the eye of law.
Case Law: Minerva Mills Ltd. v. Union of India (AIR 1980 SC 1789)-
The SC observed that the Constitution has created an independent judiciary which is vested with the power of
judicial review to determine the legality of the administrative action and the validity of legislation.
2. The judicial review aims to protect citizens from abuse or misuse of power by any branch of the State.

3. Judicial quest in administrative matters is to strike the just balance between the administrative
discretion to decide matters as per Govt. policy, and the need of fairness. Any unfair action must be
set right by administrative review.

H.W.R. Wade: “All legal power, as opposed to duty, is inevitably discretionary to a greater or lesser extent…'
Therefore, in order to maintain rule of law it is absolutely necessary to control this discretionary element in
the administrative power.”
Justice Douglas of the U.S. Supreme Court: “It is the majesty of the administrative law that it has been able
to control absolute discretion on the part of the government or any ruler or official because absolute discretion
is a ruthless master. It is more destructive of freedom than any of man's inventions.”
The nature and purpose of judicial review is not the review of the decision of administrative authority but of
the decision making process.
The limited scope of judicial review
 The courts while exercising the power of JR do not sit in appeal over the decisions of administrative
bodies.
 A petition for JR would lie only on certain well defined grounds.
 An order passed by the AA exercising discretion vested in it, cannot be interfered in judicial review,
unless it is shown that exercise of discretion itself is perverse and illegal.
 A mere wrong decision without anything more is not enough to attract the power of JR, the supervisory
jurisdiction conferred on a court is limited to seeking that tribunal functions within limits of its
authority and that its decisions do not occasion miscarriage of justice.
 The courts cannot be called upon to undertake the Govt. duties and functions. The court shall not
ordinarily interfere with a policy decision of the State.
Types of remedies against the administrative wrongs
1. Judicial review through writs
It is the public law remedy of judicial review through writs which is very effective and expeditious, though it
is costly as only High Courts and the Supreme Court have the power to issue these writs.
The power of judicial review is a supervisory power and not a normal appellate power against the decisions
of administrative authorities. The nature and scope of judicial review is limited to consideration of legality of
decision making process and not legality of order per se. That mere possibility of another view cannot be a
ground of interference.
Authorities amenable to the writ of the SC (Art.32)-
a. Govt. and Parliament of India, State Legislatures and local Governments.
b. Govt. departmental undertakings
c. Agencies incorporated by statutes
d. Agencies registered under statutes, e.g., Companies Act and Societies Registration Act
e. Courts
f. Private individuals and bodies
The judicial opinion is that these rights though belong to private individuals cannot be enforced by private
individuals. Therefore, as the law stands today, such private individuals and bodies are not amenable to the
jurisdiction of the SC, no matter they violate FRs.
Authorities amenable to the writ jurisdiction of High Courts-
The High Courts have a wider power to issue writs against ‘any person or authority’ for the enforcement of
FRs and any other legal right.
Case Law: Zee Telefilms Ltd. v. Union of India (2005) 4 SCC 649-
Where stakes were very high, main question before the Constitution Bench of the SC was whether the BCCI,
a society registered under the Societies Registration Act, 1860 and recognised by the Govt.to promote the
game of cricket is State with in the expression ‘other authorities’ under the Art 12. of the Constitution and
hence, subject to the writ jurisdiction of the Court?
The SC held that BCCI cannot be held to be a State for the purpose of Article 12. Consequently, this writ
petition filed under Article 32 of the Constitution is not maintainable and the same is dismissed.
Locus- Standi to challenge Administrative Action-
A mere interest would not entitle a person to a writ unless he can show that his interest is more than that of an
ordinary member.
Case Law: Maganbhai Ishwarbhai Patel v. Union of India (AIR 1969 SC 783)-
In this case, the petitioner, who claimed infringement of the fundamental rights guaranteed under Art.
19(1)(d)(e) and (f) of the Constitution, moved this Court under Art. 32 to sought to restrain the Govt. from
giving effect to a Kutch Tribunal award by handing over certain territory to West Pakistan. The Court found
that no petitioner had any clear interest in the action of the Govt.
A shareholder can sue for the infringement of a juristic person’s right, if he can show that his personal rights
are directly and substantially affected adversely by the action.
The SC further held that, the Tribunal Award does not purport to nor does it operate as giving rise to an
obligation to cede Indian territory and therefore no constitutional amendment is necessary. The decision to
implement the Award by exchange of letters, treating the award as an operative treaty after the boundary has
been marked, is within the competence of the executive wing of the Government.
 2. Powers of the Supreme Court
So far the Supreme Court is concerned the relevant Articles are 32 with Articles 12 and 13 and Article 136.
Article 32 empowers the Supreme Court to issue directions, orders or writs for the enforcement of fundamental
rights. What is unique about Article 32 is that the right to move the Supreme Court under this Article is itself
a Fundamental Right.
Thus, the Supreme Court is made guarantor or protector of the fundamental rights. Dr. Ambedkar called it the
soul of the Constitution.
The Constitution of India expressly provides for the judicial review.
Art.13(1): All laws in force in the territory of India immediately before the commencement of Constitution of
India, in so far as they are inconsistent with the provisions of Part-III shall, to the extent of such inconsistency,
be void.
Art. 13(2): State shall not make any law which takes away or abridges the FRs and any law made in
contravention of this clause shall, to the extent of contravention, be void.
Art. 32: Provides remedies for the enforcement of the FRs.
Articles 131 to 136: Provide Original and appellate jurisdiction to the SC.
The Doctrine of ultra vires developed on the basis of Art.14 provides much assistance in making the power of
judicial review effective.
The State action which is arbitrary and unreasonable is regarded as violative of Art.14 and, therefore, declared
void. Such act is regarded as beyond the power of the State or its instrumentalities.
Art 245 makes it clear that the legislative power of the parliament and of the State legislatures are subject to
the provisions of the Constitution.
Art 246 makes provisions in respect of the distribution of powers between the Parliament and the State
Legislatures.
Case Law: Tata Cellular v. Union of India (AIR 1996 SC 11)-
In the exercise of power of judicial review, the court should observe the self-restraint and confine itself the
question of legality and its concern should be:
 Whether a decision-making authority exceeded its power
 Committed an error of law
 Committed a breach of the rules of natural justice
 Reached a decision which no reasonable tribunal would have reached
 Abused its power
Art.31-B (added by First Constitutional Amendment Act, 1951)-
Article 31-B, makes it clear that none of the Acts and Regulations specified in the IX Schedule nor any of the
provisions of thereof shall be deemed to be void or ever to have become void, on the ground of such Act,
Regulation or provision is inconsistent with or takes away or abridges any of the FRs conferred by Part III of
the Constitution.
Article 136 (A Special Power of Judicial Review)-
Under Article 136, the Supreme Court may grant special leave to appeal against any decision of a Tribunal.
What is a Tribunal is not defined, but the Supreme Court has interpreted it in a liberal way.
Article 136 does not confer a right of appeal as such but a discretionary power on the Supreme Court to grant
special leave to appeal. The Supreme Court has held that even in cases where special leave is granted, the
discretionary power continues to remain with the court even at the stage when the appeal comes up for hearing.
Case Law: Bharat Coking Coal Co. Ltd v. Karam Chand Thapar (AIR 2002 SC 7244)-
In this case, the Supreme Court held that “the justice delivery system of the country prompts this court to
interfere under Article 136 of the Constitution when the need of the society stands established and the
judgment, if left outstanding, would not only create prejudice but would have otherwise adverse effect upon
the society.”
Case Law: Manju Verma v. State of UP (AIR 2005 SC 73)-
The SC observed that powers under Art.136 can be exercised provided two conditions are present:
i) The proposed appeal must be against a judicial or quasi-judicial order;
ii) The decision must be of a court or tribunal.

3. Powers of the High Courts

Article 226 clause (1) empowers the High Courts in the States or Union Territories to issue to any person or
authority including any Government within their territories, directions, orders or writs for the enforcement of
the fundamental rights or for any other purpose.
The power of judicial review of the High Court under Article 226 is wider than that of the Supreme Court
under Article 32 of the Constitution. The expression 'for any other purpose' enables the High Court to exercise
their power of judicial review for the enforcement of ordinary legal rights which are not fundamental rights.
Article 227 clause (1) confers the power of 'superintendence’ over all courts and tribunals throughout the
territories in relation to which it exercises jurisdiction. However, this power does not extend, like Article 136,
over any court or tribunal constituted under any law relating to the Armed Forces.
The power of superintendence under article 227 is of an administrative as well as judicial nature. The
parameters of this power are well settled and it is exercised on the same grounds as the power of judicial
review. They are:
i. It can be exercised even in those cases where no appeal or revision lies to the High Court
ii. The power should not ordinarily be exercised if any other remedy is available even if it involved
inconvenience or delay
iii. The power is available where there is want or excess of jurisdiction, failure to exercise jurisdiction,
violation of principles of natural justice and error of law apparent on the face of the record
iv. In the exercise of this power the High Court does not act as appellate tribunal.
v. It does not invest the High Court with an unlimited prerogative to interfere in cases where wrong
decisions have been arrived at by judicial or quasi-judicial tribunals on questions of law or fact.
There has to be grave miscarriage of justice or flagrant violation of law calling for interference.

Grounds of Judicial Review of Administrative Actions

1. Illegality
Decision-makers must understand the law that regulates them. If they fail to follow the law properly, their
decision, action or failure to act will be “illegal”. Thus, an action or decision may be illegal on the basis that
the public body has no power to take that action or decision, or has acted beyond its powers.
Lack of jurisdiction
That the law under which AA is constituted and exercising jurisdiction is itself un- constitutional.
That the authority is not properly constituted as required by law.
That the AA has wrongly decided a jurisdictional fact and thereby assumed jurisdiction which did not belong
to it.
That some of the essential preliminary proceedings or conditions have been disregarded which were conditions
precedent for the exercise of jurisdiction. Such as:
a) non-formation of necessary opinion before assuming jurisdiction
b) non-issues of statutory notice
c) non-institution proceedings within specified time.
That the AA is incompetent to assume jurisdiction in respect of subject – matter, area and parties.
Excess of jurisdiction
 Continue to exercise jurisdiction despite occurrence of an event ousting jurisdiction.
 Entertaining matters outside its jurisdiction.
Abuse of jurisdiction
In the following situations, an abuse of power may arise:
 Malfeasance in office- Malfeasance in office is the commission of an unlawful act, done in an official
capacity, that affects the performance of official duties. Malfeasance in office is often grounds for a
just cause removal of an elected official by statute or recall election.
 Error apparent on the face of the record which may be a result of misrepresentation or misapplication
of law.
 Consideration extraneous material
 Non-consideration of relevant material
 Colorable exercise of power – Administrative power cannot be used for the purpose it was not given.
Therefore, achieving an authorised purpose will be a colourable exercise of power subject to judicial
review.
 Mala fide exercise of power
Failure to exercise Jurisdiction
 Where authority has sub-delegated its power without the authority of law.
 Where authority is exercising its power under dictation.
 Where authority has fettered its powers by self-imposed restrictions unwarranted by law.
 Where authority declines jurisdiction which belongs to it under law.
 Where there is non-application of mind by the authority and is acting in mechanical manner
ignoring conditions precedent.

2. Irrationality (Wednesbury Test)

Case Law: Associated Provincial Picture House v. Wednesbury Corporation (1948) KB 223-
Irrationality as a ground of judicial review was developed by the Court in this case, later came to be known as
“Wednesbury Test” to determine irrationality of administrative action.
In this case the plaintiff-company was granted licence under the Cinematograph Act, 1909 subject to the
condition that “no children under the age of 15 years shall be admitted to any entertainments whether
accompanied by an adult or not.”
This condition was challenged as unreasonable, irrational and the provisions of Sunday Entertainments Act,
1932 were also challenged.
The court held that it could not intervene to overturn the decision of the defendant simply because the court
disagreed with it.
To have the right to intervene, the court would have to conclude that (irrationality includes):
 if power is exercised without the authority of law.
 if it is based on no evidence.
 if it based on irrelevant and extraneous consideration.
 if it is so outrageous in its defiance to logic or accepted norms of moral standard that no sensible
person, on the given facts and circumstances, could arrive at such decision.
 it is so unreasonable that it may be described as done in bad faith.

3. Procedural Impropriety
Requirement of fair procedure may arise in the following ways:
a. As a constitutional mandate where FRs of the people are violated.
b. As a statutory mandate - If a statute lays down any procedure which administrative authority must
follow before taking any action, it must be faithfully followed and any violation of the procedural
norm would vitiate an administrative action.
c. As an implied requirement where a statute is silent about procedure.
The Rules of Natural Justice which guarantee “fair play in action” include:
 Rule against bias – No one should be made judge in his own cause.
 Rule of fair hearing - No one should be condemned unheard.

4. Proportionality
Proportionality means that the administrative action should not be more drastic than it ought to be for obtaining
desired results. Thus this doctrine tries to balance means with ends.
Proportionality shares space with ‘reasonableness’ and courts while exercising power of review, see ‘is it a
course of action that could have been reasonably followed.’
The doctrine proportionality is applied in the following situations:
 Where administrative action invades FRs. In such a case courts make strict scrutiny of administrative
action and go into the question of correctness of the choices made by the authority.
 Where question of quantum of punishment imposed by the AA is involved, in such a case court would
not make strict scrutiny.
While reviewing an administrative action on the ground of proportionality, the courts also generally examine:
 Whether the relative merits of different objectives or interests have been appropriately weighed and
fairly balanced?
 Whether the action under review was, in the circumstances, excessively restrictive or inflicted an
unnecessary burden?
Case Law: Ranjit Thakur v. Union of India and Ors. (AIR 1987 SC 2386)-
The appellant, a Signal Man in a Signal Regiment of the Armed Services, while serving out a sentence of 28
days’ rigorous imprisonment imposed on him by the Commanding officer of the Regiment, for violating norms
for presenting representations to higher officers, was alleged to have committed another offence by refusing
to eat his food on March 29, 1985 when ordered to do so. He was charged under section 41(2) of the Army
Act, 1950 for disobeying a lawful command given by his superior officer. A sentence of rigorous
imprisonment for one year was imposed by a Summary Court Martial. He was removed to the civil prison and
he served out the sentence.
The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on an aspect
which is, otherwise, within the exclusive province of the Court-Martial, if the decision of the Court even as to
sentence is an outrageous defiance of logic, then the sentence would not be immune from correction.
Irrationality and perversity are recognized grounds of judicial review.
The SC order set aside order and the impugned proceedings of Summary Court-Martial and the consequent
order and sentence quashed. Appellant entitled to be reinstated with all monetary and service benefits.

Public Law Remedies

Writs
1. Writ of Certiorari
Wherever anybody of persons having legal authority to determine questions affecting the rights of subjects
and having the duty to act judicially, act in excess of their legal authority, they are subjected to the controlling
jurisdiction of the higher courts exercised in these writs.
Since Kraipak case a new trend has emerged in the expanding horizon of the writ of certiorari in India to
control the administrative actions. It applies not only to legal authority but also to any agency or
instrumentality of the State who acts arbitrarily in violation of law or Constitution.
The major grounds for issuing the writ are:
a. Lack of jurisdiction
 If the authority is improperly constituted.
 If authority commits an error in its decision on jurisdictional facts and thereby assumes
jurisdiction which never belonged to it.
 If the authority is incompetent to take action in respect of a locality, party, or subject matter.
 If the law which gives jurisdiction is itself unconstitutional.
 If preliminary essentials have been disregarded i.e. omission to serve notice as required by law.
Case Law: Rafiq Khan and Anr. v. State of UP (AIR 1954 All 3)-
In this case the Panchayati Adalat had convicted the applicants and two other persons for offences under
Section 24, Cattle Trespass Act, 1871 and Section 323, Penal Code and had fined each of them Rs. 20/- for
both the offences. A revision was filed before the Sub-Divisional Magistrate, and he acquitted two of the
convicted persons and reduced the fine of the other three who had made the application. The order passed by
the Sub-Divisional Magistrate modifying the decision of the Panchayati Adalat was held to be in contravention
of Section 85.
Sec. 85 of the U.P. Panchayat Raj Act, 1947 gave power to the Sub- Divisional Magistrate either to quash the
entire order of the Panchayat or to cancel its jurisdiction. The SDM had no power to modify the order in any
manner. The SC issued the writ Certiorari to quash the decision of the SDM.
b. Excess of Jurisdiction
Case Law: J.K. Choudhuri v. R.K. Datta Gupta (AIR 1958 SC 722)-
In this case, R.K. Datta was appointed Professor of Mathematics in a College affiliated to the Gauhati
University. He was later appointed Principal of the College. On complaints being made against him, the
Governing Body of the College held an enquiry and ordered his dismissal as Principal and Professor of
Mathematics. He made representations to the Vice- Chancellor of the Gauhati University and the Executive
Council of the University appointed a committee to report on the propriety of the action taken. Upon the report
of the committee that there was no reasonable ground justifying the dismissal of Datta, the Executive Council
passed a resolution directing the Governing Body to reinstate Datta.
The SC held that the Executive Council acted without jurisdiction in so far as it interfered with the action
taken against Datta as the Principal of the College. The Gauhati University Act, 1947, and the Statutes framed
under Section. 21(g) thereof made a distinction between a Principal and a teacher. Clause 3(g)(v) of the
Statutes empowered the Executive Council to interfere only with the action taken by the Governing Body of
an affiliated College against a teacher and not with action taken against a Principal.
c. Abuse of jurisdiction
Certiorari will also lie to quash an action where an authority has jurisdiction but has abused it.
All administrative powers must be exercised fairly, in good faith, for the purpose it is given, if powers are
abused it will be a ground for judicial review.
d. Violation of the principles of natural justice
Rule against bias
Rule of audi alteram partem
e. Error of law apparent on the face of the record
It is well settled that Certiorari will be issued to quash the decisions which though made within jurisdiction
reveal on the face of the record an error of law.
Record for this purpose shall include:
 documents in which the determination is recorded
 documents which indicate the proceeding and pleadings
 reports, the extracts of which are included in the record
 documents which are mentioned in the formal order to be the basis of the decision.
Case Law: Sangram Singh v. Election Tribunal (AIR 1955 SC 425)-
In this case, Bhurey Lal filed an election petition under Section 100 of the Representation of the People Act,
1951 against the appellant Sangram Singh and two others for setting aside Sangram Singh's election. He
appeared on the first and ‘subsequent hearing at Kotah. The proceedings were then adjourned for certain
hearings at Udaipur. The appellant did not appear on the first three hearings at that place so the tribunal
proceeded ex parte. His counsel appeared on the fourth hearing but was not allowed to take any further part
in the proceedings because no good cause was shown for the earlier non-appearance and so the tribunal refused
to set aside its "ex parte order".
The SC held that, the Election Tribunal construed Sec 9 of the CPC to mean that “if a person fails to appear
before it without good cause, he can be barred from taking part in subsequent proceedings.” The court quashed
the order of the Tribunal on the ground of an error of law, apparent on the face of the record.”
f. Fraud
If the decision of the agency has been obtained by fraud or the fraud operates to take away jurisdiction or
bestows jurisdiction or results in the denial of justice, the decision may be quashed by issuing of writ of
Certiorari.
Case Law: Gujarat Steel Tubes Ltd. v. Mazdoor Sabha (AIR 1980 SC 1896)-
In this case the SC held that while quashing the order of dismissal, the court can also order reinstatement and
the payment of back wages. The court further held that, judicial review is not restricted where glaring injustice
demands affirmative action.
2. Writ of Prohibition
The expression ‘prohibition’ literally means ‘to prohibit’. The Writ of Prohibition is a judicial order issued by
the Supreme Court or a High Court to an inferior Court or quasi-judicial body forbidding the latter to continue
proceedings therein in excess of its jurisdiction or to usurp a jurisdiction with which it is not legally vested.
Thus, object of the writ is to compel inferior courts, authorities exercising judicial or quasi-judicial functions,
to keep themselves within the limits of their jurisdiction.
Lord Denning- “It is available to prohibit administrative authorities from exceeding their powers or misusing
them. In particular, it can prohibit a licensing authority, from making rules or granting licenses which permit
conduct which is contrary to law.”
In India, Writ of Prohibition is issued to protect the individual from arbitrary administrative actions.
Grounds for the issue of writ of Prohibition:
a. Lack of jurisdiction
b. Excess of Jurisdiction
c. Violation of PNJ
d. Infringement of FRs
e. Fraud
f. Contravention of the law of the land

3. Writ of Mandamus
The prerogative remedy of Mandamus has long provided the normal means enforcing the performance of
public duties by public authorities of all kinds.
Conditions for the grant of Mandamus:
a. There must be public or common law duty
A public duty is one which is created either by a statute, rules or regulations having the force of law, the
Constitution, or by some rule of common law.
Case Law: Gujarat State Financial Corpn. v. Lotus Hotels (P)Ltd. (AIR 1983 SC 848)
The Gujarat State Financial Corporation is a corporation set up under Section 3 of the State Financial
Corporation Act, 1951. The GSFC promised to sanction a loan of Rs. 30 lakhs for construction of a 4-star
hotel based on certain terms and conditions but later on refused to grant loan based alleged allegations against
the promoter.
The SC held that if appellant entered into a solemn contract in discharge and performance of its statutory duty
and the respondent acted upon it, the statutory corporation cannot be allowed to act arbitrarily so as to cause
harm and injury, flowing from its un-reasonable conduct, to the respondent. In such a situation, the Court is
not powerless from holding the appellant to its promise and it can be enforced by a writ of mandamus directing
it to perform its statutory duty. A petition under Article 226 of the Constitution would certainly lie to direct
performance of statutory duty by 'other authority' as envisaged by Article 12.
b. There must be a specific demand and refusal
Before mandamus can be granted, there must a specific demand for the fulfilment of a duty and also a specific
refusal by the authority.
Case Law: Municipal Council, Ratlam v. Shri Vardhichand & Ors. (AIR 1980 SC1622)-
In the Special Leave Petition by the Municipality to this Court on the question whether a Court can by
affirmative action compel a statutory body to carry out its duty to the community by constructing sanitation
facilities at great cost and on a time-bound basis?
The SC held that, wherever there is a public nuisance, the presence of s. 133 Criminal Procedure Code must
be felt and any contrary opinion is contrary to the law. The public power of the Magistrate under the Code is
a public duty to the members of the public who are victims of the nuisance and so he shall exercise it when
the jurisdictional facts are present.
c. There must be a clear right to enforce the duty
Case Law: Kalyan Singh v. State of U.P (AIR 1962 SC 1183)-
In this case, the appellant, whose permit for plying stage carriage was shortly to expire, applied for its renewal.
The renewal application was published in the Gazette calling for objections. The State Government published
a notification proposing to nationalize the route. The permit was renewed for three years for a part of the route
but an endorsement was made thereon authorizing the appellant to ply on the remaining part of the route for
four months.
The appellants filed objections to the proposed scheme for nationalization. The objections were heard by the
Joint Secretary, Judicial Department, who approved the scheme with certain modifications. The scheme was
published in the Gazette. Thereafter, a notification was issued under Sec. 68F of the Motor Vehicles Act, 1939
cancelling the appellant's renewed permit. Under the Scheme the stage carriages of the State Transport
Undertaking could ply on the route without obtaining permits. The appellant challenged the validity of the
scheme and the cancellation of his licence.
The SC held that the scheme was valid and the appellant's licence was properly cancelled.
d. The right must be subsisting on the date of the petition
If the rights is not subsisting on the date of petition, mandamus cannot be issued.
Grounds for the grant of Mandamus:
 Lack of jurisdiction
 Excess of jurisdiction
 Abuse of jurisdiction
 Violation of the PNJ
 Error of law apparent on the face of the record

4. Writ of Quo- Warranto

The Writ of ‘Quo Warranto’ questions the title as to the holder of an office. The term ‘Quo Warranto’ means
‘what is your authority’. It is a judicial order asking a person, who occupies public office, to show by what
authority s/he holds the office. If it is found that the holder of the office has no valid title, then this writ is
issued against him to oust from the office.
Conditions for the grant of Quo Warranto:
a. Office must be a public office
The court held that a public office is one which is created by the Constitution or a statute and the duties of
which must be such in which the public is interested.
b. Public office must be substantive in nature
The word substantive interpreted to mean an ‘office independent of title’. Therefore, quo- warranto would be
granted even when the office is held at the pleasure of the State provided it is permanent in character.
c. The person must be in actual possession of the office
Mere declaration that a person is elected to an office or mere appointment to a particular office is not sufficient
for the issue of writ of quo warranto unless such person actually accepts such office.
d. The office must be held in contravention of law
There must be a clear violation of law in the appointment of a person to a public office. If there is mere
irregularity, quo warranto will not lie.
Quo Warranto will also be issued when a person validly occupies the office but acquires a disqualification
later on.
E.g. A Minister may be removed from the post if he does not get membership in the Legislature within 6
months.
Locus standi for the Writ of Quo Warranto- A petition of QW is maintainable at the instance of any person,
although he is not personally aggrieved or interested in the matter. However, he must not be a man of straw
set up by anyone. Like any other extraordinary remedy, Quo Warranto is also a discretionary remedy. It cannot
be refused on the ground of unreasonable delay.
Grounds for refusal of Quo Warranto:
a. Quo Warranto is also a discretionary remedy. It can be refused on the ground of unreasonable delay.
b. Normally, acquiescence (agreement to do what someone wants or acceptance) is no ground for refusing
the remedy in case of public employment but it may be relevant factor in cases of election.
c. The writ may also be refused if there is adequate alternative remedy. E.g.- the court may refuse to issue
writ against the Members of Legislatures who had become disqualified since they held office of profit,
as Article 192 of the Constitution provided an adequate remedy.
d. In cases where the issue of writ would be futile in its result, the court may refuse it.
Case Law: P.L. Lakhanpal v. A.N. Ray, CJ of India (AIR 1975 Del 66)-
The Delhi HC refused to issue the writ of quo warranto against the former CJ of India, Justice Ray, on the
ground that on the resignation of three senior judges, Justice Ray becomes the senior most, and therefore, can
be reappointed even if it is held that Art. 124(2) embodies the seniority rule. The court further observed that
the motive of the appointing authority is not relevant for the grant of the writ.
5. Writ of Habeas Corpus (‘you must have the body’)
A person, when arrested, can move the Court for the issue of Habeas Corpus. It is an order by a Court to the
detaining authority to produce the arrested person before it so that it may examine whether the person has
been detained lawfully or otherwise. If the Court is convinced that the person is illegally detained, it can issue
orders for his release.
Writ of Habeas Corpus can be filed by any person on behalf of the person detained or by the detained person
himself. However, every petition must be supported by an affidavit stating the facts and circumstances of
detention.
In case of minor, any person entitled to the minor’s custody can file a petition. If no such person is available,
any other person may file such petition.
The purposes for which the writ of Habeas Corpus may be issued:
a. testing the regularity of detention under preventive detemtion laws and any other law
b. securing the custody of minor
 c. securing the custody of body of a person alleged to be lunatic
d. securing the custody of a marriage partner
e. testing the regularity of detention for a breach of privilege by the house
f. testing the regularity of detention under court – martial
g. testing the regularity of detention by the executive during emergency, etc. (Ram Manohar Lohia
detention Case)

Private Law Remedies

1. Injunction
Under India Legal System, the law relating to injunction has been provided in the Specific Relief Act, 1963.
An injunction in the common law tradition is known as an equitable remedy, which means that it is in the
discretion of the court whether or not to grant it. It is a court order, which in the majority of cases that orders
the party to whom it is addressed not to do a particular act.
a. Temporary injunction
Injunction is categorized in two form i.e. Permanent Injunction and Temporary Injunction. Section 37 of
Specific Relief Act, 1963 provides that “temporary injunction are such as are to continue until a specified
time, or until the further order of the court, and they may be granted at any stage of a suit.”
The procedure for seeking temporary injunction has been provided under Order XXXIX of the Code of Civil
Procedure, 1908. However, an injunction being discretionary equitable relief cannot be granted when equally
efficacious relief is obtainable in any other usual mode or proceeding.
b. Perpetual injunction
Under Sec 38 of the Specific Relief Act, 1963, perpetual injunction may be granted to prevent the breach of
an obligation existing in favour of the plaintiff, either expressly or by necessary implication, or to prevent a
breach arising from a contract, or to prevent invasion of the right to or enjoyment of the property, if the
defendant is a trustee, or where there exists no standard to ascertain damages or money, and compensation
would not be an adequate relief, or where it is necessary to prevent the multiplicity of suits.
A perpetual injunction may be granted to prevent the breach of an obligation existing in favour of the applicant,
whether expressly or by implication.
However, injunction will not be granted
 to restrain a person from instituting or prosecuting any judicial proceeding, civil or criminal
 to restrain a person from petitioning to any legislative body
 to prevent the breach of a contract which cannot be specifically enforced i.e. service contracts

c. Mandatory injunction
The court may grant a Mandatory injunction under Sec. 39 of SRA 1963, as a final decision in a case to prevent
a person from continuing with a wrong action as also to compel him to do a positive act, necessary to remedy
the harm already done. Therefore, an improvement authority can be issued a mandatory injunction not only to
restrain the construction of a building, if it interferes with the easementary rights of the plaintiff, but also to
pull down the construction already made in contravention thereof.
2. Declaration
Its main purpose is to determine or ascertain what the law says without changing the legal position or rights
of the parties. It declares what the law is or says in relation to a certain uncontested fact.
Declaratory suits can also be filed against government bodies, local authorities, and statutory authorities.
Declaration can be issued by the Courts in matter dealt with by the administrative authorities where entitlement
to any legal character or right is involved. Suits can be filed seeking declaration that acts or orders of municipal
or local authorities are ultra vires.
Conditions for the grant declaratory relief:
a. The person must be entitled to a legal character or a right to any property.
In legal parlance, legal character is equivalent to legal status which may include official position, sex, marital
status, minority, legitimacy, nationality, franchise etc. therefore, the right to stand for public election or right
to get an election declared invalid may be subject to declaratory relief.
Similarly, the right to any property may include any right which is not a mere hope or chance or which is not
contractual in nature.
b. There must be some danger or detriment to such right or character
There must some person or authority, public or private, either interested in denying such character or right or
must have actually denied it.
c. Plaintiff must seek further relief if he is entitled to it
This places a restriction on the power of the court to grant a mere declaration. In situations where the plaintiff
is entitled to consequential relief and does not claim it, the court will not grant a declaratory relief.
Consequential relief is that relief which directly flows from the declaration. In s suit for declaration in a case
of wrongful dismissal, the consequential relief would be reinstatement and arrears of salary.
3. Suit for damages
Whenever any person has been wronged by the action of administrative authority he can file a suit for damages
against such AA. Such a suit is field in the civil court of first instance and its procedure regulated by the CPC.
The requirement of two months’ notice is mandatory u/s 80 of the amended Code before filing the suit, unless
it is waived by the court in special circumstances.

Public Interest Litigation – Nature and Purpose

Constitutional status of PIL
PIL has not been defined in any Indian statute. However, Courts have interpreted and defined PIL.
Case Law: Janata Dal v. H.S.Chaudhary [(AIR 1993 SC 892) –
The Hon’ble Supreme Court of India held that lexically, the expression ‘PIL’ means a legal action started in
a court of law for the enforcement of public/general interest where the public or a particular class of the public
some interest (including pecuniary interest) that affects their legal rights or liabilities.
PILs are considered to be the most effective as well as the most commonly used judicial tool to safeguard the
environment due to their many advantages including but not limited to speedy results, nominal court fees,
relaxed procedural rules and the wide variety of investigative techniques available to courts like special
committees.
Locus standi
Any individual or organisation can file a PIL either in his/her/their own standing i.e. to protect or enforce a
right owed to him/her/them by the government or on behalf of a section of society who is disadvantaged or
oppressed and is not able to enforce their own rights.
The concept of “Locus Standi” has been relaxed in the case of PILs so as to enable the Hon’ble Court to look
into grievances that are filed on behalf of those who are poor, illiterate, deprived or disabled and are unable to
approach the courts themselves.
However, only a person acting in good faith and who has sufficient interest in the proceeding will have the
locus standi to file a PIL. A person who approaches the Hon’ble Court for personal gain, private profit,
political or any oblique consideration will not be entertained.
Suo moto cognizance may also be taken by the Court.
Procedure
Any Indian citizen or organisation can move the court for a public interest/cause by filing a petition:
1. In the SC under Article 32
2. In the High Courts under Article 226
The court can treat a letter as a writ petition and take action on it. The court has to be satisfied that the writ
petition complies with the following: the letter is addressed by the aggrieved person or a public-spirited
individual or a social action group for the enforcement of legal or constitutional rights to any person who,
upon poverty or disability, are not able to approach the court for redress. The court can also take action on the
basis of newspaper reports if it is satisfied with the case.
Problems of PIL
Off late, PILs have become a tool for publicity. People file frivolous petitions which result in the wastage of
time of the courts. People have used them with a political agenda as well. They unnecessarily burden the
judiciary. Even if the petition is eventually dismissed, the courts spend time and effort on them before
dismissing them.
At present, only judges have the power to dismiss a petition. The Registry of the SC or HC only ensures that
the technical requirements of filing a petition are fulfilled. As a result of which petitions are admitted to the
court irrespective of the merits of the case.
Way Forward with Public Interest Litigation:
 The court should not allow its process to be abused by politicians and others to delay legitimate
administrative action or to gain political objectives.
 The PIL activists should be responsible and accountable.
 The court must be careful to see that the petitioner must be acting bona fide and not for personal gain.
 In shaping the relief the court must take into account its impact on those public interests.
 Since it is an extraordinary remedy available at a cheaper cost to all citizens of the country, it should
not be used by all litigants as a substitute for ordinary ones or as a means to file frivolous complaints.
Changing perspective
Various news keeps on revolving PIL in India as it is one of the most accessible public instruments that can
be used to seek judicial action. Check the latest news related to PIL below:
 PIL was moved to quash the PM CARES fund
 Public Interest Litigation has been filed in the Supreme Court of India seeking directions to the
Government of India to make arrangements in order to rescue and bring the Indian Migrants stranded
in Gulf Countries
 A petition has been filed before the Supreme Court of India, seeking directions to States, their
Municipal authorities and local self-government authorities to ensure the protection of rights of the
sanitation workers who are also essential service providers amidst the nationwide lockdown in wake
of the COVID-19 outbreak
Over the years, the courts in India have formulated various principles with respect to PILs:
 Relaxed rule of locus standi- PILs can be filed by any person for the welfare of others who are
disadvantaged and are thus unable to approach the courts themselves. Thus, the general rule of locus
standi has been relaxed in cases of PILs to protect and safeguard the interests and rights of these
disadvantaged people.
 Relaxed procedural rules- Courts have treated even a letter or a telegram as a PIL as in the case of Rural
Litigation & Entitlement Kendra, Dehradun vs. State of Uttar Pradesh. Even the law regarding
pleadings has been relaxed by the courts in cases of PILs.
 Intervention by the courts– Courts has also highlighted the fact that Article 14 & 21 of the Constitution
of India and the International Conventions on Human Rights provide for a fair and reasonable trial.
Thus, Courts must intervene when injustice is done to many.
 Question of maintainability- The Government may not be allowed to raise questions as to the
maintainability of the PIL if the court is prime facie satisfied that there is a variation of any
constitutional rights of a disadvantaged category of people.
 Principle of Res Judicata- The principle of res judicata or any principles analogous to it would depend
on the circumstances and facts of the case and the nature of the PIL.
 Appointment of a Commission- In special circumstances, a court may appoint a Commission or other
bodies to investigate. In the event that the Commission takes over a public institution, the Court may
direct management of it.
 PILs regarding constitutionality or validity of a statute or a statutory rule– Ordinarily, the High Court
should not entertain such a petition by way of a PIL.
 Complete Justice– Under Article 142 of the Constitution of India, the Hon’ble Supreme Court of India
has the discretionary power to pass a decree or order as may be necessary to do complete justice.
However, while high courts may pass orders to do complete justice, they do not have powers akin to
those granted to the Hon’ble Supreme Court under Article 142.
 Misuse of PILs– Courts are extremely cautious to ensure that PILs are not misused as the misuse of
PILs would defeat the very purpose for which it was conceived i.e. to come to the rescue of the poor
and the downtrodden. The courts have, time and again, reiterated this fact as in the case of Kushum
Lata v. Union of India [(2006) 6 SCC 180]. However, courts have held that even if the petitioner had
approached the court for his own private interest due to his personal grievances, the court may treat it
necessary to inquire into the subject of the litigation and its state of affairs in furtherance of public
interest.
 Formulation of various concepts– In environmental law cases, the courts have formulated and evolved
several concepts including the Polluter Pays Principle, the Precautionary Principle, the Public Trust
Doctrine and Sustainable Development.

Doctrine of Legitimate Expectation

This doctrine is against the arbitrary use of powers. The plea is available when the Govt. does not exercise its
discretion on the expected lines. E.g. Refusing to renew contracts and sudden discontinuation of a scheme,
etc.
In very famous English case Council of Civil Service Union v. Minister for Civil Service, Lord Diplock, has
explained the doctrine of legitimate expectation, both in procedural and substantive contexts.
Procedural: The procedural part of it relates to a representation that a hearing or other appropriate procedure
will be afforded before any decision is made.
Substantive: The substantive part of the theory is that if a representation has been expressly made that a benefit
of a substantive nature will be granted or if any person is already in receipt of any benefit, it will be continued
and will not be substantially varied to the disadvantage of the recipient.
Case Law: National Building Constructions Corporation v. S Raghunathan-
Legitimate Expectation is a source of both, procedural and substantive rights. The person seeking to invoke
the doctrine must be aggrieved and must have altered his position. The doctrine of legitimate expectation
assures fair play in administrative action and can always be enforced as a substantive right. Whether or not an
expectation is legitimate is a question of fact.
The limits of the application of the Doctrine of Legitimate Expectations
“In India the doctrine has been under article 14 of the Constitution. Under this article the constitutional
provision imposes the duty to act fairly on all public authorities and therefore, people can have legitimate
expectation that they will be treated fairly by the states.”
Case Law: Food Corporation of India v. Kamdhenu Cattle Feed Industries- the court states that “in all the
state actions, the state and its instrumentalities have to conform to Art. 14 of the Constitution of which non-
arbitrariness is a significant fact.”
Whenever there is a dispute between the interests of the individual or public interest at large scale is involved,
the decision will always be in the favour of the public interest. As the larger public interest is of more
importance and outweigh the legitimate expectation of the respondent.
Another field where the doctrine of Legitimate Expectation does not apply is the contractual field.
The doctrine of legitimate will not be applicable against the public authorities when their mistaken advice or
representation is found to be in breach of status and thus, against public interest as regards for the public
welfare is the highest law and the law does not compel a man to do that which he cannot possibly perform.
Rationales underlying the concept of legitimate expectations
The doctrine of legitimate expectation is based on established practice
A total stranger unconnected with the authority or a person, cannot invoke the doctrine of legitimate
expectation, merely on the ground that the authority has a general obligation to act fairly.
A legitimate expectation, even when made out, does not always entitle the expectant to a relief. Public interest,
change in policy, conduct of the expectant or any other valid or bona fide reason given by the decision- maker,
may be sufficient to negative the 'legitimate expectation.
The Supreme Court of India: The expectation should be legitimate, that is, reasonable, logical and valid. Any
expectation which is based on sporadic or casual or random acts, or which is unreasonable, illogical or invalid
cannot be a legitimate expectation.
This doctrine is rooted in fairness.
 It is not just procedural in nature but substantive in nature as well. It is not just locked merely to hear
the claims.
 It applies to the area of policy making as well.
 It may be noted that SEDLEY, J. insisted that legitimate expectation is in reality a question of fairness
in public administration.

The Doctrine of Public Accountability

Accountability can be seen as the validation of participation, in that the test of whether attempts to increase
participation prove successful is the extent to which people can use participation to hold a local government
responsible for its actions.
Purpose:
  The basic purpose of the emergence of the doctrine is to check the growing misuse of power by the
administration and to provide speedy relief to the victims of such exercise of power.
 It is based on the premise that the power in the hands of administrative authorities is a public trust
which must be exercised in the best interest of the people.
Case Law: The Attorney General for Hong Kong v. Reid (1993) 3 WLR 1143-
In this case the respondent, Mr. Charles Warwick Reid was a New Zealand citizen who was employed as a
Hong Kong Deputy Crown Prosecutor and then Acting Director of Public Prosecutions, so in a fiduciary
relationship with the Hong Kong government. He took bribes to obstruct prosecution of some criminals, and
used the money to buy land in New Zealand. Some was kept by Mr. Reid and his wife, Mrs. Judith Margaret
Reid, some conveyed to Reid’s solicitor.
The administration of Hong Kong claimed these properties on the ground that owners thereof are constructive
trustees for the Crown. The Privy upheld the claim.
This was held to be necessary to ensure that people in positions of trust could in no way profit from their
wrongdoing. If the property was badly invested, the fiduciary in breach would still be under a duty to make
good the shortfall. Reid served a four-year prison sentence for the criminal charges relating to the bribes, after
which he was deported to his native New Zealand.
Case Law: P.V. Narsimha Rao v. State (1998) SC 626 (Jharkhand Mukti Morcha bribery case)-
On 26th July, 1993, a motion of no-confidence was moved in the Lok Sabha against the minority government
of P.V. Narasimha Rao. The support of 14 member was needed to have the no-confidence motion defeated.
On 28th July, 1993, the no-confidence motion was lost, 251 members having voted in support and 265 against.
Suraj Mandal, Shibu Soren, Simon Marandi and Shailender Mahto, members of the Lok Sabha owing
allegiance to the Jharkhand Mukti Morcha (the JMM), and Ram Lakhan Singh Yadav, Roshan Lal,
Anadicharan Das, Abhay Pratap Singh and Haji Gulam Mohammed, members of the Lok Sabha owing
allegiance to the Janata Dal, Ajit Singh group (the J.D.A.S.), voted against the no-confidence motion. Ajit
Singh, a member of the Lok Sabha owing allegiance to the J.D.A.S., abstained from voting thereon.
Issues:
1. Does Art. 105(2) of the Constitution confer immunity on a member of the Parliament from being prosecuted
in a criminal for an offence involving offer or acceptance of a bribe?
2. Whether an M.P. is excluded from the operation of the Prevention of Corruption Act, 1988, for a reason
that:
 He is not a person who can be regarded as a “public servant” as defined in Sec. 2(c) of the Act.
 He is not a person who comprehended in clauses (a) (b) and (c) of sub-section (i) of Sec. 19 of the Act,
as there is no authority to grant sanction for his prosecution for the offences mentioned under Sec. 19
of the Act.
Immunity of M.Ps from prosecution- The Constitution bench by a majority of three judges to two, comprising
Justices Barucha, Ray and Rajendra Babu (Justices Agarwal and Anand, dissenting contrary) answered the
first issue in the affirmative by holding: “The alleged bribe takers who voted on the no-confidence motion are
entitled to immunity from the criminal prosecution for the offences of bribery and criminal conspiracy,
conferred on them by Article 105(2) of the constitution.” It is submitted that the decision of the majority is an
unfortunate interpretation of the Constitution.
M.P. as “Public Servant”- The SC by unanimous verdict held that an M.P. is a ‘public servant’ for the purposes
of Sec. 2(c)(viii) and 2(b) of the Act. The Court reasoned that membership of Parliament is an ‘office’ in as
much as it is a position carrying certain responsibilities which are of a public character and it has an existence
independent of the holder of the ‘office.’ Also by virtue of such office he is required or authorized to perform
duties and such duties are in the nature of public duties.
The Question of sanction- The Court, by a majority of three judges to two, held that Members of Parliament
are liable for prosecution under the Act even with respect to offences where the sanction of an authority for
the same is required. The problem before the Court was that in respect of prosecution under certain sections
of the Act, in the case of an M.P. there does not seem to be any single individual authority competent to
remove and grant for their prosecution.
The judiciary has paved the way by declaring that the Chairperson of the Rajya Sabha and the Speaker of the
Lok Sabha are the appropriate Sanctioning authorities for the Members of the Parliament in the matter of those
offences under the Prevention of Corruption Act, 1988.
Criticism-
 Art.105 of the CN does not protect corruption.
 The purpose of the immunity is to preserve legislative independence, but taking bribe is no part of any
legislative process.
 The object of Art. 105 of the CN is not to create a superman immune from law of crimes.
 The object of immunity is to ensure independence of a members of PT for a healthy functioning and
protecting him against crime will be repugnant to any healthy functioning.

The Doctrine of Proportionality

If an action taken by an authority is contrary to law, improper, unreasonable or irrational, Court of law can
interfere with such action by experiencing power of judicial review. One of such modes of exercising power
is doctrine of proportionality.
Case Law: Sardar Singh v. Union of India (AIR 1992 SC 417)-
The appellant, who had put in 10 years of service as Jawan in the Army, was sentenced to 3 months’ R.I. and
dismissed from service by the Summary Court-Martial, on the charge that his action in carrying 12 bottles of
liquor while proceeding on leave to his home town was contrary to the orders on the subject and violation of
Sec 63 of the Army Act, 1950. The appeal preferred by the appellant, pointing out the irregularities committed
in the summary trial, and pleading that he had unblemished record of service, was also rejected by the higher
authority. The writ Petition filed by the appellant was also summarily rejected by the High Court.
The SC holding the action arbitrary and punishment is severe, set aside the order punishment.
Case Law: Omkumar v. Union of India (AIR 2000 SC 3689)-
By an order dated 29.11.94, this Court requested Justice O. Chinnappa Reddy (former Judge of this Court), to
investigate into the conduct of the officials of the DDA including its ex-officio chairman at the relevant time,
in handing over the possession of the suit land in M/s. Skipper Construction Pvt. Ltd. before receiving the
auction amount in full and also in “conniving” at the construction thereon as well as at the advertisements
given by it for bookings in the building in question. The learned Judge was also requested to “look into the
legality and propriety of the order dated 4.10.98 passed by the then ex-officio Chairman of the DDA and the
directions given by the Central Government under Section 41 of the Delhi Development Act.”
After the penalties had been imposed on these officers, the Supreme Court by an order dated 4 May, 2000
proposed to reopen the issue of quantum of punishment meted out to these officers. It is in this context that
the principle of proportionality was analysed.
It must be clarified that the main issue at the fore in Om Kumar was the applicability of the principle of
proportionality with respect to Article 14 of the Constitution of India.
The SC held that “when administrative action is attacked as discrimnatory under Article 14” the “court is
applying proportionality” but when “administrative action is questioned as arbitrary, the principle of
secondary review based on Wednesbury principles applies.”
Case Law: Sandeep Subhash Parate v. State of Maharashtra (2006) 1 SCC 501)-
In this case a student obtained admission to Engineering Course based on a caste certificate, which was
subsequent to the admission, invalidated. However, he completed the course based on an interim order of the
HC. Yet university refused to grant him a Degree. This action of the University was held to be correct by the
HC. The SC in appeal directed the University to grant him a Degree subject to the appellant making a payment
of one lakh and in future, for all purposes he will be treated to be a person belonging to the general category.

Laches or unreasonable delay

The Doctrine of Laches emanates from the principle that the Courts will not help people who sleep over their
rights and helps only those who are aware and vigilant about their rights. A party is said to be guilty of laches
when they come to the Court to assert their rights after a considerable delay in that respect.
 With respect to constitutional law, laches refers to the filing of a writ petition, however, unlike the law
on limitations there is no specific time period after which a writ petition is barred.
 The underlying principle is that the Court should not examine stale cases, because the Court is to help
an individual or party that is vigilant and not indolent.
 The reasons for delay if valid and reasonable are generally accepted because the Court doesn’t dismiss
petitions only due to delay but only if it is accompanied by other reasons.
Definition
Failure to do something at the proper time, especially such delay will bar a party from bringing a legal
proceeding.
It is principally a question of inequity of permitting claim to be enforced.
The concept of Laches is based on the legal maxim “Equity aids the vigilant, not those who slumber on their
rights.” Laches recognizes that a party to an action can lose evidence, witnesses, and a fair chance to defend
himself or herself after the passage of time from the date the wrong was committed. If the defendant can show
disadvantages because for a long time he or she relied on the fact that no lawsuit would be started, then the
case should be dismissed in the interests of justice.
Laches as Self Defense
Laches acts as a defense to an equitable action, that bars recovery by the plaintiff because of the plaintiff's
undue delay in seeking relief. Laches is the equitable equivalent of statutes of limitations. However, unlike
statutes of limitations, laches leaves it up to the court to determine, based on the unique facts of the case,
whether a plaintiff has waited too long to seek relief.
Laches and Statute of Limitation
Case Law: Trilok Chand Motichand v. H.B. Munshi-
In Trilok Chand Motichand v. H.B. Munshi, the main question before the Court was whether there is any
period of limitation prescribed within which the remedy under Article 32 is to be invoked. The petition, in this
case, was filed after a delay of 10 years; the plea was dismissed for delay. The judges who comprised the
bench in this case however differed with respect to the time period after which laches should apply.
Sikri, J., opined that three years will be the proper yardstick for measuring a reasonable time for preferring a
writ petition.
Bachawat, J., put it as one year.
On the other hand, Justice Hegde suggested that the law on limitation has no application on the proceedings
that take place under Article 32 and as such the Court cannot refuse a petition based on delay.
In this regard, however, Chief Justice Hidayatullah felt that no hard and fast rule should be adopted. He stated
that the issue should be dealt with by the Court on a case to case basis.
The whole issue is dependent on what the breach of a fundamental right is, what the remedy is and why did
the delay in question arise in the first place.
This view seems to be the most reasonable in this regard because the matter is best left to the discretion of
judges and also because the facts and circumstances of one case are never identical to another.
Moreover, this involves the violation of very basic fundamental rights of individuals and as such needs to be
dealt with utmost sensitivity and care.
In the case of limitation, a suit is dismissed if not instituted within the period of limitation prescribed by the
Limitation Act and no other matter is taken into consideration whereas in cases of laches, there is no fixed
period of time.
Unreasonable lapse of time
Case Law: Gian Singh v. High Court of Punjab and Haryana-
The writ petition was filed by the petitioners eleven years after the date from which they claimed
promotions.
The petitioners argued that during these intervening years they were busy making representations before
different authorities regarding their grievances.
The Court rejected their contentions stating that there were no valid reasons for justifying the delay of
eleven years and therefore their petitions were dismissed.
Case Law: V. Bhasker Rao v. State of Andhra Pradesh-
Where the seniority list was published twelve times during eight years showing the petitioner below the
respondents but the petitioner never challenged. It was held that he was not entitled to challenge it under
Article 32 of the Constitution of India.
Laches includes:
 It is a form of delay for such time as to constitute acquiescence.
 Delay such as to preclude court from arriving at a safe conclusion as to truth.
 Delay that makes it inequitable to accord relief sought.
 Delay that warrants presumption that party has waived his right.
 Delay that works or results in disadvantage, injury, injustice, detriment or prejudice.
 Failure to prosecute claim within reasonable and proper period.
 It is implied waiver from knowledge of existing conditions and acquiescence in them.
 Inexcusable delay in assertion of rights.
 It is lack of diligence on part of plaintiff to injury, prejudice, or disadvantage of defendant.
 Lapse of time and acquiescence in alleged wrong.
 Lapse of time together with change in condition or relation of parties.
 Lapse of time together with prejudice or lapse such that prejudice will be presumed.

Neglect to assert a right or claim

A neglect to assert a right or claim may operate as a right to waiver. A waiver is the voluntary relinquishment
or surrender of known right or privilege
Laches implies a neglect to do that which the party ought to do for his own benefit or protection. Hence laches
may be evidence of acquiescence.
To the detriment of another
 In the happening of an event when the disadvantage of the party allows the other party to not to assert
the right or the claim within the reasonable time happens to be an element of laches.
 It is an inequity founded on some change in the condition or relations of the property or parties.
 Laches is, or is based on, delay attended by or inducing change of condition or relation.
 It is a neglect for unreasonable and unexplained length of time under circumstances permitting
diligence to do what could have or should have been done.
 It is neglect for unreasonable length of time to do what should have been done.
 Neglect or omission for unexplained and unreasonable length of time.
 Neglect or omission to assert right as, taken in conjunction with lapse of time and other circumstances,
causes prejudice to adverse party.
Laches and Judicial Review
Courts are not bound by imitation law because cases can be refused on ground of unreasonable delay because
the extra ordinary remedy is discretionary.
Case Law: Brijesh Kumar & Ors. v. State of Haryana & Ors. (2014)-
In the instant case, after considering the facts and circumstances and the reasons for inordinate delay of 10
years 2 months and 29 days, the High Court did not find sufficient grounds to condone the delay.
In view of the facts of the case and the above-cited judgments, we do not find any fault with the impugned
judgment. The petitions lack merit and are accordingly dismissed.
The Doctrine of Laches with regard to fundamental rights garners more importance because these rights
guaranteed by the Constitution are basic and inalienable. It would, thus, be safe to say that the Doctrine of
Laches is a watchdog of justice in a legal system, which ensures that only the right cases are addressed, and
any malice or unrequired delay is properly dealt with due reprimand. Therefore, it can be concluded that the
Doctrine of Laches, through the years of its evolution, has eased the tracing of the burden of proof on the
plaintiff, simplifying the process of assessing their intent in the entire process, giving a clearer picture of the
case that is to be dealt with.