NATIONAL LAW UNIVERSITY ORISSA

COURSE: ADMINISTRATIVE LAW

TOPIC:

JUDICIAL REVIEW AND ERRORS OF LAW

SUBMITTED TO: Mr. ABHIK MAJUMDAR & Mr. AHMAD ALI SUBMITTED BY:
ISHAN KHANNA DIVANSHU SONGARA B.B.A.LL.B(Hons.)/2009/022 B.B.A.LL.B(Hons.)/2009/018

CONTENTS
Contents ........................................................................................................................................................ 2 TABLE OF CASES, STATUTES AND OTHER AUTHORITIES: .............................................................................. 3 Introduction .................................................................................................................................................. 4 RESEARCH METHODOLOGY .......................................................................................................................... 4 CHAPTERIZATION .......................................................................................................................................... 4 Chapter-I: Judicial Review and Appeal: A Comparison ................................................................................. 5 Chapter II: Types of Error of Law .................................................................................................................. 7 Error of Law on the Face of Record .......................................................................................................... 8 Extended Jurisdictional Error: ................................................................................................................... 9 Chapter III: Remedies and Standing in India: .............................................................................................. 11 1. 2. 3. Relief in the nature of Certiorari ..................................................................................................... 11 Relief in nature of Prohibition......................................................................................................... 17 Writ of Mandamus: ......................................................................................................................... 19

CONCLUSION............................................................................................................................................... 20

TABLE OF CASES, STATUTES AND OTHER AUTHORITIES: Cases Referred: Anisminic v. Foreign Compensation Commission, [1969] 2 AC 147 Baldwin & Francis Ltd. v. Patents Appeal Tribunal (1959), per Lord Denning Basappa v. Nagappa, 1955 1 SCR 250 Bharat Bank v. Employees of Bharat Bank,1950 SCR 1104 Board of High School v. Baleswar, AIR 1966 SC 875 Chingleput Brohters v Majestice Bottling CO. AIR 1984 SC 1182 Craig v. South Australia (1995) 184 CLR 163 East India Commercial Co. v. Collector of Customs, AIR 1962 SC 189 Hari Vishnu Kamath v. Ahmed, AIR 1955 SC 233 Hari Vishnu Kamesh v. Ahmad, 1971 SC 2399. Hari Vishnu v. Sayed Ahmed, 1950 1SCR 264 Jadgish v Angoori, 1984 UJ SC 645 Maneka Ghandi v Union Of India, AIR 1978 SC 1572 Rupa v Ashok Hurra, (2002) 4 SCC 388 Saraswati Industrial Syndicate ltd. v. Union of India, AIR 1975 SC 460. Shabi v. Addl. D&S Judge, AIR 1977 SC 836. Shalini v Union of India AIR 1981 SC 431 State of M.P. v. G.C. Mandawara, AIR 1954 SC 493 State of M.P. v. G.C. Mandawara, AIR 1954 SC 493 State of Rajasthan v. Mewar Mills, 1954 SCR 1129 Union of India v. Ghaus, AIR 1961 SC 526 Statute: Constitution of India, 1950

INTRODUCTION Judicial review and errors of law deals with the scope or the extent to which judiciary can go to deal with questions containing errors of law since errors of law is an area dealt by the appellate jurisdiction of courts. Judicial review being a separate ambit altogether, and its mixing up with appellate jurisdiction would be undermining the appellate jurisdiction. Judicial Review is a great armament in the hands of judges. It confers power to a court to hold unconstitutional and unenforceable any law or order passed by a public authority or a lower court which is inconsistent or in conflict with the basic law of the land. Appeal, on the other hand, means that the superior administrative tribunal or court to whom appeal lies under the law, has the power to reconsider the decision of the inferior tribunal on the merits. Broadly, judicial review in India deals with three aspects: (i) judicial review of legislative action; (ii) judicial review of judicial decision; and (iii) judicial review of administrative action. In this research paper, we are concerned with the last aspect, namely, judicial review of administrative action. RESEARCH METHODOLOGY The researchers will mainly follow descriptive approach while dealing with this topic and main reliance will be on primary sources i.e. cases surrounding judicial review in context of errors of law. The research will intend to evaluate recent judicial pronouncements in India with regard to errors of law while coming in ambit of power of judicial review. This research paper intends to provide clarity between appellate jurisdiction and judicial review, since judicial review has become a significant principle of constitutional democracies so a need to define its ambit in context of errors of law becomes pertinent. CHAPTERIZATION
1. Judicial Review and Appeal: A Comparison

2. Types of Error of Law 3. Remedies and Standing in India 4. Conclusion

CHAPTER-I: JUDICIAL REVIEW AND APPEAL: A COMPARISON Judicial review is one of the judicial controls over the validity of an administrative action. Judicial review is originally vested or inherent in a court. It serves to re-examine the decision making process of a judgment or against the public body.1 The grounds for judicial review are first laid down in Wednesburys case and put forward in the case of CCSU. The said grounds are procedural impropriety, irrationality, illegality, and proportionality as a possible ground. Procedural impropriety refers to the breach of any procedural requirement prescribed by law. Irrationality or super Wednesbury unreasonableness means an extreme unreasonableness administrative decision, where no reasonable body will ever make such decision. Illegality means an abuse of discretion, whether it is an exclusion of relevant consideration or the inclusion of irrelevant consideration; it relate closely with a bad faith or mala fide decision. The last ground, proportionality, means an unreasonable or severe punishment that is not fitting. It is respectfully submitted here that Wednesburys proportionality was never clearly established.2 Judicial review has three functions. Firstly, it allows justice to be attended to by striking down flawed decisions by lower courts. Secondly, the appellate courts closely monitor the performance of the lower courts3; lower courts thus have an incentive or rather a reason to apply the law correctly else their decisions would be overturned. Thirdly, important arguments and debates regarding the law are scrutinized and resolved for the guidance of the individuals and courts in the future. This function of closely examining is the primary concern of the highest courts, which in most cases agree to hear appeals only at their discretion4. The right to appeal is created by state constitution or state statute. Usually, there is right to appeal to the next higher court after a
1 2

C.K.TAKWANI, ADMINISTRATIVE LAW 275 (4th ed., 2008). Administrative Law , available at http://administrativelawum.blogspot.com/2010/09/tutorial-question.html (last visited April 1, 2011). 3 Ibid 4 Supra note 1 at 254.

case has been first tried. After the first appeal any further appeals is at the discretion of the higher court. Appeals are not new trials and no separate jury is appointed; instead a panel of a number of judges, usually at least three, reviews the case for error. The facts of the case as found by the jury (or the judge in a non-jury trial) are accepted by the appellate court, and the appellant may not introduce new facts that could have been presented at the trial. If error is found, it must be significant enough to have meaningfully affected the outcome of the trial. Harmless error in procedural details or other error that would make no difference to the outcome is insufficient to alter the judgment of the lower court.5 APPEAL Appeal is a statutory right when you challenge the decision and not the basis of the judgment. If the matter is decided erroneously, without being ultra-vires, then it is a ground for appeal. E.g. If the judicial body refuses to take into account a precedent, it is ultra-vires. However if the judge misinterprets the precedent it is not ultra-vires and hence fit for an appeal. An appeal is allowed only after final judgment in a case has been delivered, after which, if the losing party is not satisfied with the judgement and feels that the law was not properly applied or followed can file an appeal. Appeals must be initiated within a specified time of the delivery of the final judgement. The appealing party or the appellant must now file a brief in support of the claim of error, which will state the relevant facts of the case and of law and an argument supporting the dispute of error. Specific rules, which may vary depending on the court and jurisdiction6, must be followed as to the form and length of the brief. A complete record of the case must be sent to the appellate
5 6

Judicial Review, available at http://law.jrank.org/pages/12512/Judicial-Review.html (last visited April 1, 2011). Jack Beatson, The scope of judicial review for error of law, 4(1) OXFORD JOURNAL OF LEGAL STUDIES 29 (Spring, 1984)

court, which will include a complete transcript of the trial, the verdict, and the final judgment entered. The opposing party in the case is notified of the intent to appeal and also files a brief in response. After the court has reviewed the record and the briefs and heard oral argument, it makes its ruling in the form of a written opinion setting forth its decision and the legal reasoning behind it. Lower court decisions are unanimously affirmed by appellate courts. If error is found, the appellate court may reverse the decision or modify it to the lower court for further proceedings. If the judgment is affirmed, the appellant may seek an appeal in a higher court7. CHAPTER II: TYPES OF ERROR OF LAW Errors of Law can broadly be divided into two parts: 1. 2. Jurisdictional error of law Non Jurisdictional error of law

The doctrine of Jurisdictional error in its modern form can be traced back from the 17th century when it came to be used to control the activities of inferior courts and quasi-judicial statutory tribunals and is very similar to the doctrine of ultra vires which became a means of insuring that executive and administrative authorities (including local government authorities) acted within their powers. One doctrine speaks in terms of power the other in terms of jurisdiction. In recent years the doctrine of ultra vires and jurisdictional error have been very closely related and in England the distinction between them has, for all practical purposes been obliterated as a result of the house of lords decision8. Errors of law may be classified according to whether they

Judicial Review, available at http://law.jrank.org/pages/22739/Judicial-Review-Appellate-Procedure.html (Last visited April 1,2011 ) 8 Anisminic v. Foreign Compensation Commission, [1969] 2 AC 147

go to jurisdiction or not. The commission of a jurisdictional error results in a void decision whereas commission of non-jurisdictional error results in a voidable decision.9 A traditional error of law is basically of three types: (I) (II) A want or lack of jurisdiction: Absence of power or authority to make a decision. Excess of Jurisdiction: Within general power or authority but lack of jurisdiction occurring throughout the decision making process. (III) Wrongful failure/refusal to exercise jurisdiction

A non-jurisdictional error of law, in traditional terms, is any other error of law. In that regard the court makes distinction between matters which are within the original decision makers jurisdiction (commonly referred to as matters going to the merits) i.e. those matters which the decision makers alone decides and matters which are outside decision makers jurisdiction (so called jurisdictional matters), i.e. those matters which must be established as a condition precedent for the decision maker to exercise its jurisdiction.10 ERROR OF LAW ON THE FACE OF RECORD Error of law on the face of record is a principle first developed in the 17th century and is an exception to the traditional doctrine of jurisdictional error of law which states that only errors going to jurisdiction are reviewable by a supreme court. Under this exception to the traditional doctrine, any error of law appearing on the face of record of an inferior court or tribunal is reviewable regardless of whether or not the error is jurisdictional or not. The error must be one of law (and not of fact) and appear plainly on the face of record. At first, the record was held to
9

Lord Diplock, Administrative law: Judicial review reviewed, 33 (2) CAMBRIDGE LAW JOURNAL 238 (November 1974) 10 IAN ELLIS-JONES AND DAVID BARKER, Essential Administrative law (3RD Edn.,1998), PP. 88

comprise only the document or documents initiating subject proceedings, the pleadings (if any) and the adjudication. It did not include the evidence or the reasons for the decision (unless the tribunal actually chose to incorporate them). The record later came to include not only the formal order but all those documents which appear therefrom the basis of the decision- that on which it is grounded11 and embrace, at least in England, the transcript of proceedings (in particular, the reasons contained in the transcript). EXTENDED JURISDICTIONAL ERROR:

In England, the distinction between jurisdictional and non-jurisdictional errors of law has, for all intents and purposes been abolished as a result of the House of Lords decision12. The effect of the majoritys decision in that cast was to extend the traditional concept of jurisdictional error to embrace errors of law not traditionally thought to go to jurisdiction, namely, errors of law of the kind included within broad or extended ultra vires. The High court decision in the south Australian13 case was the first decision in which the court has shown an almost unambiguous openness towards the Anisminic doctrine of extended jurisdictional error, at least with regards to administrative tribunals.14 It was said in Craig that if an administrative tribunal: falls into error of law which causes it to identify the wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or reach a mistaken conclusion, and the tribunals exercise or

11 12

See Baldwin & Francis Ltd. v. Patents Appeal Tribunal (1959), per Lord Denning Anisminic v. Foreign Compensation Commission [1969] 2 AC 147 13 Craig v. South Australia (1995) 184 CLR 163 14 THE Reception of The Doctrine of Extended Jurisdictional Error in Australia available at http://utsescholarship.lib.uts.edu.au/dspace/bitstream/handle/2100/1020/02Whole.pdf?sequence=2 (Last visited April 1,2011 )

purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it. The traditional distinction between jurisdictional and non-jurisdictional errors of law still prevails, at least with regards to inferior courts and quasi-judicial statutory tribunals. However, even as regards inferior courts and analogous tribunals, there is still the possibility that such a body may commit a reviewable jurisdictional error of the Anisminic type (for example, failure to take into account what ought to have been taken into account). Ordinarily that will not be the case. Much would appear to depend upon whether the error in question is one on which the decision of the case depends15. The answer to that question would appear to one of degree of facts of each particular case. Insofar as administrative tribunals are concerned, a jurisdictional error of the Anisminic type will be committed by such a body where the error is such that the bodys exercise or the purported exercise of power is thereby affected16. It is necessary however to understand what is the meaning of Jurisdictional Error under the general law and the consequences that follow from a decision maker making such an error.17

15 16

See Pearlman v. Keepers and Governors of Harrow School (1979) John Griffiths, Jurisdictional Review of Errors of Law, 39(2) THE CAMBRIDGE LAW JOURNAL 233 (Nov., 1980) 17 Harry Whitmore, That way Madness lies: Judicial Review for error of law, 2 FED. L. REV. 159 (1966-1967)

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CHAPTER III: REMEDIES AND STANDING IN INDIA: 1. RELIEF IN THE NATURE OF CERTIORARI The writ of certiorari is the writ which is the writ issued by the superior Court i.e. high Court or Supreme Court to the inferior Court or tribunal or body exercising judicial or quasi-judicial functions to remove the proceeding from such Courts. If the order passed by the inferior Court or tribunal or body exercising judicial or quasi-judicial functions is found to be illegal the superior Court may demolish it. Whenever anybody of persons having legal authority to determine questions affecting the rights of subject having the duty to act judicially acts in excess of their legal authority certiorari may lie to quash a decision that goes beyond the jurisdiction.18 The object of writ certiorari is to keep inferior Court or tribunals or bodies exercising judicial or quasi-judicial within the limits of jurisdiction assigned to them by law and to prevent them from acting in excess of their jurisdiction.19 These writs are issued by the superior Court in the exercise of its supervisory functions and not in the exercise of its appellate function.20 In the exercise of the writ jurisdiction the superior Court cannot convert itself into a Court of appeal and cannot interfere with the finding the finding of fact unless it is proved that it is wholly unsupported by the evidence.21 The writ of certiorari issues out of a superior Court and is directed to the judge or other officer of an inferior Court of record. It requires that the record of the proceeding in some cause or matter

18 19

BASU DD, CONSTITUTION OF INDIA 613 (7th ed., 2007) Bharat Bank v. Employees of Bharat Bank,1950 SCR 1104 20 Hari Vishnu v. Sayed Ahmed, 1950 1SCR 264 21 Jadgish v Angoori, 1984 UJ SC 645

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pending before such inferior Court shall be transferred to the superior Court to be dealt with in order to ensure that the applicant for the writ may have more speedy justice.22 By means of certiorari the superior Court can demolish the order of the inferior Court or tribunal or body exercising judicial or quasi-judicial functions if it finds the order illegal but it cannot substitute its own views for those of said inferior Court or tribunal or body.it cannot be issued to quash an act or ordinance on the ground that it is constitutionally invalid. It cannot be issued to correct a mere error of law except where the error apparent on the record.23 In a Supreme Court case24 the Court has held that certiorari under article 226 is issued by high Court for correcting gross errors of jurisdiction i.e. when a subordinate Court is found to have acted: a) b) c) Without jurisdiction by assuming jurisdiction where there exists none In excess of its jurisdiction by overstepping or cross the limits of jurisdiction Acting in flagrant disregard of law or the rules of procedure or acting in violation of

principles of natural justice where there is no procedure specified25. The Court has made it clear that the writ of certiorari is directed against the act or order of proceeding of subordinate Court it can be issued even if the list is between two private parties. The Court has further held that be it certiorari or the exercise of supervisory jurisdiction by the high Court under article 227 none is available to correct mere errors of fact or of laws unless the following requirements are satisfied :

22 23

Supra note 1 at 382 Basappa v. Nagappa, 1955 1 SCR 250 24 Surya Dev Rai v Ram Chander Rai, (2003) 6 SCC 675 25 C.K.TAKWANI, ADMINISTRATIVE LAW 378 (4th ed., 2008)

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1. Error is manifest and apparent on the face of proceeding such as when it is based on clear ignorance of provisions of law 2. A grave injustice or gross failure of justice has occasioned thereby. A patent error is an error which is self-evident i.e. which can be demonstrated without involving into lengthy or complicated arguments or long drawn process of reasoning where two interferences are reasonably possible and the subordinate Court has chosen to take one view the error cannot be called patent.26 The Court has held that in the exercise of certiorari or supervisory jurisdiction the high Court cannot convert itself into a Court of appeal and indulge in evaluation of evidence or correct errors of mere formal character.27 The Court has made it clear that it has laid down the broad principles and working rules and the facts remains that the parameters for exercise of jurisdiction under article 227 or 226 cannot be tied down in rigid rules. In a Supreme Court case28 it was held that a writ of certiorari to call for records and examine the same for passing appropriate order is issued by the Supreme Court to inferior Court. Who may apply? The person whose legal right has been invaded may apply for certiorari. The person aggrieved by the impugned order may apply for certiorari. If the matter to be reviewed is one which affects the people generally an individual citizen may ordinarily invoke the remedy of certiorari as may such private citizen who suffers peculiar injury by reason of judgment or order jurisdiction. any member of public who has not disentitled himself by his conduct may draw the attention of Court
26

JAWAHAR SINGH & ORS. V. FINANCIAL COMMISSIONER & ORS. 1952 AIR 319 C.K.TAKWANI, ADMINISTRATIVE LAW 385 (4th ed., 2008) 28 Rupa v Ashok Hurra, (2002) 4 SCC 388
27

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to an order passed by subordinate tribunal being manifestly illegal or ultra-virus for it is the duty of the supreme Court to quash such order.29 The real test is whether the petitioner has been aggrieved by the order complained. If this test is satisfied a firm or non-statutory body. Against whom it may lie Certiorari lies against an inferior Court or tribunal or other body exercising judicial or quasijudicial functions. Conditions for issue The writ of certiorari can be issued to any constitutional, Statutory and non- statutory body, authority or person who exercises judicial or quasi-judicial functions, affecting rights of any person. The writ can be issued in case of the violation of principles of natural justice. The grounds for the issue of writ are following 1. The writ of certiorari lies in case where the inferior Court or tribunal or body exercising judicial or quasi-judicial functions acts without jurisdiction or has failed to exercise its jurisdiction.30 Where tribunal is not properly constituted it will be treated as a tribunal having no jurisdiction to hear the matter and if it hears the matter treated as a tribunal having no jurisdiction to hear the matter and if it hears the matter the tribunal will be taken to have acted without jurisdiction.31 The writs of certiorari will lie against a quasijudicial decision which is unconstitutional.

29 30

C.K Takwani Lectures on Administrative Law 378 (2010) See State of U.P v. Mohd. Nooh, AIR 1958 SC 86 31 State of Rajasthan v. Mewar Mills, 1954 SCR 1129

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It is to be noted that if the inferior court or tribunal or body exercising judicial and quasi-judicial functions has no legal authority to pass the order, certiorari will not lie as it is void ab initio and no benefit will arise from the issue of this writ. Where there is error of law apparent on the face of record, certiorari may be issued. Thus if the decision of the inferior Court or Tribunal or body exercising judicial or quasi-judicial function is vitiated by an error apparent on the face of record, certiorari may be issued to quash it. In such a condition, certiorari will lie even if the inferior Court or Tribunal or body exercising the judicial or quasi-judicial function is acting within its jurisdiction.32. For this purpose the error must be an error of law and also the error must be apparent on the face of record. The error cannot be an error on the face of record if it is not self-evident and examination or argument is required to establish it.33 The error if apparent on the face of record can be corrected by certiorari. Thus where there is an error of fact in the decision of the inferior court or tribunal or body exercising judicial or quasi-judicial function, certiorari will not lie, however gross the error may be. The finding of fact is based on no evidence at all or inadmissible evidence, it may be a ground of interference by means of certiorari. Actually a finding based on no evidence constitutes an error of law, and therefore certiorari will lie.34 If the finding of fact is perverse, i.e. it is such as no person properly instructed in law and judicially could have arrived from the evidence, certiorari will lie. When there is error apparent on the face of record in the order, it may be quashed by certiorari and the question of any hardship of any of the parties would not arise.35

32 33

Union of India v. Ghaus, AIR 1961 SC 526 Hari Vishnu Kamesh v. Ahmad, 1971 SC 2399. 34 Board of High School v. Baleswar, AIR 1966 SC 875 35 Shabi v. Addl. D&S Judge, AIR 1977 SC 836.

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In such a condition, the superior court will correct the decision and send it back to the inferior court or Tribunal for its decision in accordance with the law. Where a judicial or quasi-judicial authority acts in violation of the principles of natural justice, certiorari will lie against it. The Court, Tribunal or any other body exercising judicial or quasi-judicial functions are required to follow the principles of natural justice in discharge of such functions. If it passes any order without observing the principles of natural justice, certiorari will lie against such a decision and the decision may be passed by means of certiorari. The observance of the principle of natural justice is fundamental to the discharge of not only judicial functions, but also to the discharge of any quasi-judicial functions. The judicial or quasi-judicial functions body is required to observe the principles of natural justice even when there are no positive words in the statute requiring the observance of principles of natural justice.36 Certiorari is issued against the judicial act which includes the quasi-judicial act also. The writ of certiorari, thus, lies against the judicial or quasi-judicial acts of a judicial or quasi-judicial authority and it does not lie against the purely ministerial acts of such authorities. As regards the issue of the writ of certiorari against administrative bodies, the present position appears to be this that certiorari must be issued against such bodies if they affect rights of an individual without complying with the principles of fair play.37 The principles of fair play require even an administrative body to act in good faith and without bias and not to act arbitrarily or capriciously. If the administrative action violates any of these principles, certiorari may be issued against it. The writ of certiorari is available even against the administrative decisions which have been given in violation of any of these principles. In some cases, the Supreme Court has made it clearly that the administrative order which involves civil

36 37

Maneka Gandhi v. Union of India, AIR 1978 SC 597 Keshav Mills v. Union of India, AIR 1963 SC 389

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consequences or which affects any rights of citizen capable of being enforced by a legal action, must be made in conformity with the principles of natural justice. If such administrative order is made in violation of the principles of natural justice, the writ of certiorari may be issued against it. The Court or Tribunal whose order is sought to be quashed by certiorari must be inferior to the Court before which the application for certiorari has been presented. No court can issue certiorari to quash its own order or the order of the superior Court or a Court of equal status. The inferior Court or Tribunal or body whose order is sought to be quashed by means of certiorari must be within the jurisdiction of the Court before which the application for certiorari has been presented. Thus, the inferior Court or Tribunal or body whose order is sought to be quashed must be within the jurisdiction of the High Court before the application of certiorari has been presented. 2. RELIEF IN NATURE OF PROHIBITION

Prohibition is a writ which issued by a Superior Court to an inferior Court or Tribunal or body exercising judicial functions preventing such inferior Court or Tribunal or body from usurping jurisdiction which is not legally vested therein or from acting in violation of the principles of natural justice or from acting under the unconstitutional law. Prohibition is a writ Issuing out of the High Court of Justice and directed to an inferior Court which forbids such Court to continue proceedings therein in excess of its jurisdiction or in the contravention of the law of land. The object of prohibition is to restrain the inferior Courts or Tribunals or bodies exercising judicial or quasi-judicial functions from exceeding their jurisdiction and, thus, to keep them within the limit of their jurisdiction. It is an order directed to an inferior court which forbids the court to continue proceedings therein in excess of jurisdiction or in contravention of the law of the

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land.38Prohibition and certiorari are similar in many respects. Both are issued by the superior court to the inferior court, or Tribunal or body exercising judicial or quasi-judicial functions. The object of both the writs is to restrain the inferior courts or Tribunals exercising judicial and quasi-judicial functions from exceeding their jurisdiction.39 However the main point of difference between the two is that Prohibition is issued before the proceedings are completed while certiorari is issued after the decision has been made by the lower court or Tribunal. Both are therefore issued at different stages of the proceedings. Generally the person whose legal right has been infringed or invaded may apply for Prohibition. The person aggrieved by the continuance of the proceedings before the inferior court or Tribunal in excess of its jurisdiction or in contravention of the law of land may apply for the issue of prohibition. Prohibition lies in cases where the inferior court or Tribunal or body exercising judicial or quasi-judicial functions acts without jurisdiction or in excess of it or under a law which is itself ultra vires or unconstitutional.40 If the tribunal is not properly constituted it will be treated as a tribunal having no jurisdiction to hear the matter.41 Where there is error apparent on the face of record the error must be self-evident and it should not require any argument to establish it. If the inferior court or tribunal or a body exercising judicial or quasi-judicial functions acts of the violation of natural justice prohibition will lie. The body exercising judicial or quasi-judicial are required to observe the principles of natural justice even where there is no positive words in the statue requiring the observance of the principles of natural justice.42

38 39

East India Commercial Co. v. Collector of Customs, AIR 1962 SC 1893. S.K. BAH, THE LAW AND PRACTICE BY JUDICIAL REVIEW (2001) 40 State of Rajasthan v. Mewar Mills 1954 SCR 1129 41 State of Rajasthan v Mewar Mills, 1954 SCR 1129 42 Maneka Ghandi v Union Of India, AIR 1978 SC 1572

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The doctrine of natural justice is applicable even in administrative proceedings which involves civil consequences the first principle of natural justice is that the judicial or quasi-judicial authority should not be biased and disinterested in the case. No man should be judge in his own case. A person interested inone party should not take part in the proceeding. The second principle of natural justice is that no one should be condemned unheard. The person affected must be given reasonable opportunity to be heard before the decision is given. If an inferior court or tribunal acts of these principles of natural justice the person aggrieved may move to the superior court for the issue of prohibition. Prohibition is issued against the judicial act which includes the quasi-judicial act also. It does not lie against purely ministerial acts of such authority. Prohibitions will against the administrative authorities if they affect the rights of individual without complying with principle of fair play. The principles of fair play require even an administrative authority to act in good faith43 and bias and not arbitrary.44 Prohibition will not lie against the exercise of legislative or executive functions. Prohibition lies so long as the proceedings are pending before the court or Tribunal ceases to exist or becomes functus-officio.45The application for prohibition may be refused without a hearing on merit if the applicant has suppressed the material facts with a view to mislead the Court. 3. WRIT OF MANDAMUS: The word mandamus means the order the writ of mandamus is thus an order by a superior court commanding a person or a public authority including the government and corporation to do or forbear to do something in the nature of public duty or in cases of a statutory duty. Example a licensing officer is under a duty to issue license to an applicant who fulfills all the conditions laid

43 44

Chingleput Brohters v Majestice Bottling CO. AIR 1984 SC 1182 Shalini v Union of India AIR 1981 SC 431 45 Hari Vishnu Kamath v. Ahmed, AIR 1955 SC 233

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down for the issue of such license. But despite the fulfillment of such conditions if the officer or the authority concerned refuses or fails to issue the license the aggrieved person has a right to seek the remedy through a writ of mandamus. When it will lie: Thus the writ or order in the nature of mandamus would is issued when there is a failure to perform a mandatory duty. But even in cases of alleged breaches of mandatory duty the party must show that he has made a specific demand to enforce that duty and the demand was met with refusal.46 The writ of mandamus can only be granted when there is in the applicant a right to compel the performance of same duty imposed upon the authority47. The duty sought to be enforced must be a public duty that is, duty imposed by law. A private right cannot be enforced by the writ of mandamus. The writ of mandamus can be issued to public authority to restrain it from acting under a law which has been declared unconstitutional. CONCLUSION We thereby conclude by our research that that in the Indian Scenario Error of law apparent on the face of record is prevalent unlike Jurisdictional error of law which prevails in England. An error of law apparent on the face of record can be rectified through the means of two writs namely certiorari or prohibition. These two writs are issued by a superior court to an inferior court when the inferior court or tribunal is acting outside its jurisdiction or does something in contravention to the principles of the law of land. Hence Judicial Review is a very strong weapon in the hands of the judiciary which bestows on it the immense power to intervene in a deciding bodys decision and nullify it if there is a patent error of law apparent on the face of record
46 47

Saraswati Industrial Syndicate ltd. v. Union of India, AIR 1975 SC 460. State of M.P. v. G.C. Mandawara, AIR 1954 SC 493

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BIBLIOGRAPHY SECONDARY SOURCES: 1. Judicial Review, available at http://law.jrank.org/pages/12512/Judicial-Review.html (last visited April 1, 2011). 2. Administrative Law, available at http://administrativelawum.blogspot.com/2010/09/tutorial-question.html (last visited April 1, 2011).

ARTICLES REFERRED: 1 S.K. BAH, THE LAW AND PRACTICE BY JUDICIAL REVIEW (2001) 2. John Griffiths, Jurisdictional Review of Errors of Law, 39(2) THE CAMBRIDGE LAW JOURNAL 233 (Nov., 1980) 3. Harry Whitmore, That way Madness lies: Judicial Review for error of law, 2 FED. L. REV. 159 (1966-1967) 4. Lord Diplock, Administrative law: Judicial review reviewed, 33 (2) CAMBRIDGE LAW JOURNAL 238 (November 1974) 5. IAN ELLIS-JONES, DAVID BARKER, Essential administrative law (1998) 6. JACK BEATSON, THE
SCOPE OF JUDICIAL REVIEW FOR ERROR OF LAW,

4(1) OXFORD

JOURNAL OF LEGAL STUDIES 29 (SPRING, 1984)

Books Referred: 1. C.K.TAKWANI, ADMINISTRATIVE LAW (4th ed., 2008) 2. IAN ELLIS-JONES AND DAVID BARKER, ESSENTIAL ADMINISTRATIVE LAW (3RD EDN. 1998)

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