Administrative Law

Bachelor of law notes

☺Discuss various types of Writ. Discuss the values of Writ.

Writ: An order issued by a court requiring that something be done or giving authority to do a specified act.

Conditions of filing Writ:

●There must be an absence of other equally efficacious remedy in other law.

●There must be an application

 ● The applicant must be an aggrieved person in case of writ of Mandamus, Prohibition and Certiorari .But Any person can file a writ of Habeas corpus and Quo Warranto.

 ● The person against whom writ is filled must be public functioning.

● Authority that is regulated and established by any Statute is subject to writ.

Notice must be served.

·       Classification of Writs:-

The prerogative writs were five in number:-

1. Habeas Corpus

2. Mandamus

3. Prohibition

 4. Certiorari

5. Quo Warranto

Habeas Corpus:  By Habeas corpus writ the Supreme Court or High Court can cause any person who has been detained or imprisoned (this means violation of his fundamental right to liberty) to be physically brought before the court. The court then examines the reason of his detention and if there is no legal justification of his detention, he can be set free. Under sub-clause (i) of clause (b) of sub-article (2) of article 102 of the Bangladesh Constitution,

When the writ of Habeas corpus is issued:

● When the person is detained and not produced before the magistrate within 24 hours.

 ● When the person arrested without any violation of a law. When a person is arrested under a law which is unconstitutional.

●When detention is done to harm the person or is malafide.

Who can file:  A general rule of filing the petition is that a person whose right has been infringed must file a petition. But Habeas corpus is an exception to that. This is because, a person detained or imprisoned may be severely handicapped. So anybody on behalf of the detainee can file a petition.

Mandamus: Mandamus means “we order”. The Supreme Court or High Court orders to a person, corporation, lower court, public authority or state authority to do a legal duty. Legal duty means some duty which is by a law viz. constitution, act, subordinate, legislation etc.

The core philosophy is that a person or authority despite of fulfillment of such conditions which demand an action refuses to act then, the Supreme Court or High Court can ask the person or authority to perform that duty. For example, if a person fulfills all the preconditions & formalities to be issued a license but still the authority refuses to issue a license even after that person approaches to that particular authority, the person may seek writ petition. (Sub-clause (i) of clause (a) of sub-article (2) of article 102 of the Constitution)

Who can file:

● He person must have a real or special interest in the subject matter.

● He person who has legal right.

●No other equally effective remedy is there.

●Notice must be given to him.

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Prohibition:  The writ of prohibition means that High Courts may prohibit the lower courts such as special tribunals, magistrates, commissions, and other judiciary officers who are doing something which exceeds to their jurisdiction or acting contrary to the rule of natural justice.

Certiorari: Certiorari means 'be certified' of the proceedings of any lower court or tribunal to be investigated by the superior court.  Under sub-clause (ii) of clause (a) of article 102, not only legality of a proceedings but also any act done by a person, performing functions in connection with the affairs of the Republic or a local authority, can be declared to have been done without any lawful authority and with no legal effect.

Quo Warranto This means that High Court may issue the writ which restrains the person or authority to act in an office which he / she is not entitled to. This writ is applicable to the public offices only.
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Writ of Quo warranto will issue in respect of an office only if the following conditions arc satisfied:

*The office must be public

*The office must be substantive in character, i.e., an office inde­pendent in title.

* Where taking oath is necessary, as soon as oath is taken.

* He must be in actual possessor of that public post.

CR: Waris Mia Vs Ministry of LGRD, BD

                                      

☺ Discuss the importance of Writ as a mechanism of ensuring administrative accountability.

Ans: Administrative law has greatly demarcated the checks, balances and permissible area of an exercise of power, authority and jurisdiction over administrative actions enforced by the State.  To ensuring effective administrative accountability writ is a very good mechanism as it gives speedy remedy to the victim.

Role of the Writ Certiorari: Certiorari may apply when the administrative or executive authority fails to observe their duty to act fairly with respect to the administrative functions. The writ of Certiorari may also be issued against a subordinate tribunal even if the decision impugned is pronounce.

Role of Writ of Mandamus:  It may be applied when the government authorities vested with absolute powers fails to perform their administrative and statutory duties.

Role of Writ of Prohibition: By writ of prohibition high court can stop misuse of any administrative or statutory powers exercised by Administrative body.

Role of Writ Ouo Warranto : If the appointment of a public officer is illegal, High court can invalidate that appointment by this writ.

Role of Writ of Habeas Corpus: High court may order any detaining authority to produce any person detained unlawfully by Habeas Corpus.

These all writs are important to ensure effective administrative accountability.