Judicial Remedies Against

Judicial Remedies against

Administrative Excesses & Quasi-Judicial Proceedings

One often comes across seasoned bureaucrats having vast knowledge and experience of running public affairs at their credit, with their words exuding a pride of being honest and dedicated to service delivery and bringing significant changes in improving public service. I often seek guidance from them and also try to benefit from their knowledge and experience to employ them in public sector. An individual, howsoever intelligent he is, cannot lead institutional changes to a success unless there is will and consensus among all to work in tandem to achieve common goals. But, in reality, it is not so and we, every now and then, witness administrative excesses. Media reports also highlight the highhandedness of government officials with no one to hold them accountable until some higher-ups take notice or judiciary take suo moto notice.

The administrative courts comprise a distinct system which exists to implement public law or to handle disputes to which state is a party and has an interest. In present era, Owing to ever-growing indifference of public machinery to the needs of the common man, their importance has increased manifold. At the same time, the public is free to resort to administrative courts or to judiciary in seeking relief or for redressal of their grievances. The judicial remedies available against administrative excesses and for seeking directions to judicial or quasi-judicial tribunals are described hereunder:

One such way is the writ of Habeas Corpus (to produce the body of) against the detention of an individual without any lawful authority. It is one of the fundamental rights as envisaged in Chapter I: Fundamental Rights (Articles 8 to 28) of the Constitution of the Islamic Republic of Pakistan. This can be claimed as a right not at the discretion of the court. However, for preventive detention, law cannot also be used by the executive without producing the detainee before competent authority constituted in this regard.

Mandamus is a kind of direction issued by the court against the executive for doing or refraining from doing something which pertains to their office or public duty. This writ cannot be claimed as a matter of right and court has to satisfy itself whether any alternate remedy is available or not. It means that the petitioner has to prove that he has a legal right to the performance of a legal duty by the respondent. It should be filed by the person whose right has been infringed, and the refusal of public official who has been requested for performance of duty which has been declined.

Prohibition is a kind of judicial writ issued by a superior court to an inferior court thereby preventing a lower court form exercising jurisdiction which was not initialling in its domain. It can be claimed as a matter of right. The difference between the two is that prohibition is claimed as a matter of right while mandamus has to be proved. Similarly, prohibition is issued against lower courts, judicial or quasi-judicial tribunals while mandamus is against public official or authority.

Injunction is basically a kind of direction issued against a private individual or body for doing or refraining from doing an act. The difference between injunction and mandamus is that the former is issued against any party whosoever it is while the latter is against public officials. Similarly, prohibition is against judicial authorities while injunction is against parties to the writ, whosoever they are.

Certiorari means to be certified or to be made certain. The writ of certiorari is issued by a superior court directing a lower court for transferring the record of proceedings of a case pending with it for the purpose of determining the legality of the proceedings and for giving a kind of satisfactory effects to the proceedings than they could be done at lower court level. It does not need any personal right while it differs from prohibition to the extent that prohibition is only preventive as against certiorari which is both preventive and curative.

Quo Warranto is what warrant or authority? This writ is issued to inquire into the legality of the claim which a party asserts to an office and to cast that from its enjoyment or to forfeit it. The necessary conditions for its issuance are: (1) the office must be created by the Constitution or by a Statute and should also be public; (2) tenure of office must be permanent; (3) the person proceeded against must be in possession of or user of it; and (4) the petitioner must be legal claimant. It is also important to mention here that any person, regardless of any interest, can apply for this writ.

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