This article has been written by Ronak Ruia, pursuing a Diploma in Advanced Contract Drafting, Negotiation and Dispute Resolution from LawSikho, and has been edited by Shashwat Kaushik.
It has been published by Rachit Garg.
Introduction
Under Article 32 of the Indian Constitution, which provides a remedy for the protection of fundamental rights by granting authority to the Supreme Court to issue a writ and to the High Court under Article 226 of the Constitution, a writ petition may be filed when a person’s fundamental rights are being violated. The two most essential purposes of writs are to safeguard the principle of natural justice and protect fundamental rights.
Writs can be issued when something is not in accordance with the procedural law or when an arrest is made under the law, which itself is unconstitutional. Thus, a writ petition can be filed, for instance, on behalf of the person through Habeas Corpus, wherein the person is held unlawfully. It is a procedural remedy and provides protection from unlawful detention, but it does not uphold other rights, such as the right to a fair trial.
Moreover, there are five different types of writs. They are:
- Writ of Habeas Corpus,
- Writ of Mandamus,
- Writ of Quo Warranto,
- Writ of Certiorari, and
- Writ of Prohibition.
The primary purpose of a Writ is that it is used to assist the people in defending their rights against judicial orders; the higher authority provides alternatives for the harm caused; and justice is administered and not obstructed. Writs are generally used by people who cannot afford legal services and have faced illegal detention by police authorities.
Types of writs
The Supreme Court of India is the protector of fundamental rights; it has wide powers through the writs.
Habeas Corpus
The meaning of Habeas Corpus is ‘to have a body of’. It is to enforce fundamental rights to protect individual dignity against unlawful detention. The Supreme Court and the High Court can issue writs against private and public authorities. There are a few instances where Habeas Corpus is not applicable. They are when the detention is lawful; when the preceding is for contempt of the legislature of the court, the detention is outside the jurisdiction of the Court.
Mandamus
The meaning of mandamus is command. It is ordered to the public officials who failed to perform their duty in order to resume the work. Besides public officials, mandamus can be issued against any public body or corporation, an inferior court or tribunal, or the government for the same purpose. Mandamus cannot be issued against a private individual; it can’t be issued against the president or state governor, nor against the Chief Justice of the High Court.
Certiorari
Certiorari means to be certified and to be informed. It is issued by a higher court to a lower court or tribunal to transfer the case. In other words, under this writ or authority, it is also issued by the Appellate Court to obtain information on the case. It was first found in England by the queen’s bench, which ordered judges of inferior courts to present certain records. The writ was abolished in 1938, but the High Court justices retained it. There is no regular means of appeal, particularly in reviewing systems.
Quo Warranto
Quo Warranto means by what authority or warrant. It is issued by the court to inquire about the legality of a person’s claim to a public office. There are certain scenarios when Quo Warranto would be allowed;
- If the office is a public one and is created under the law.
- It has real substance and is substantive in nature.
- The usurper whose authority is being contested must still be in place when the claim is made.
Prohibition
The Writ of Prohibition means “to prohibit, restrain, prevent, or forbid.” This writ primarily ensures that when the subordinate court is acting outside its jurisdiction, has exceeded its authority, or to prohibit a court from doing something. The court can issue a Writ of Prohibition against it. It is applicable to judicial and quasi-judicial organisations and cannot be made applicable to statutory bodies, agencies, or private individuals.
Writ of mandamus and contractual liability of the state
A writ of mandamus is issued to the public authority when it fails to do the duty entrusted to it by law. Under this writ, the nature of duty is looked into over the identity of the authority against whom it is sought. Further, the remedies under Articles 32 and 226 of the Constitution are public law remedies and can be restored to ensure the public authorities discharge their duties in their respective areas.
Does writ petition stand against a breach of contract against the state
There are many judgements passed by the Hon’ble Supreme Court and High Courts that have allowed writ petitions against the breach of statutory contracts only when fundamental rights are violated.
Violation of principle of natural justice
In the case of the Managing Director, Uttar Pradesh…vs. Vinay Narayan Vajpayee (1980), The employee’s dismissal order was overturned by the Supreme Court on the grounds that, given the facts of the case, he should have been given the opportunity to question the witness called by the management against him, and that doing otherwise would have gone against the principles of natural justice. Moreover, the employee in question worked for a statutory corporation and was denied the opportunity to do so.
On violation of Article 14 of Constitution of India and arbitrariness of the state
No one can be discriminated against; anyone and all should be treated equally. In simpler terms, there should be non-arbitrariness to attain the rule of law and ensure a state that is fair and reasonable.
In the cases of Bidhannagar (Salt Lake) Welfare Assn. vs. Central Valuation Board and Ors. (2007) and Grand Kakatiya Sheraton Hotel and Towers Employees and Workers Union vs. Srinivasa Resorts Ltd. (2009), the Supreme Court stated that a statute can only be ruled ultra vires on the grounds of complete unreasonableness rather than hardship. Thus, under Article 14, the Act might be contested as being arbitrary, unreasonable, and outside of its authority.
In the case of M/S Galaxy Transport Agencies and Ors. vs. M/S New J.K. Roadways, Fleet Owners, and Transport Contractors and Ors. (2020), the expert valuation of practical tender when it comes to technical evaluation is not to be second guessed by the writ court unless arbitrariness and mala fide tender authority are alleged, and the interpretation should not be second guessed by the court in the judicial review proceedings. Therefore, it is imperative to note that whenever there is a violation of Article 14 of the Constitution, a writ is maintainable not only against the state but also against private parties because the right to equality is available to all citizens and non-citizens of the state and is the same duty of the state; hence, it cannot be against a non-statutory contract.
Principle underlying contractual liability of the state
The primary principles of contractual liability are reasonableness, fairness, and public interest. Article 14 anticipates the principle of reasonableness, which is legally and conceptually a fundamental element of equality or nonarbitrariness, and it must describe every State Action, whether it be under the authority of law or in the exercise of official power without the creation of regulation.
In the case Maharashtra Chess Association vs. Union of India Ors. (2019), the Supreme Court discusses the powers of the High Court under Article 226 and states that the High Court may enforce fundamental rights under Part 3 of the Constitution of India for any purpose. To put it in simple terms, a citizen may seek out the writ jurisdiction of the High Court where their fundamental rights are infringed, which may be in many situations. There are several judgements that are paradigmatic in the approach of the court in the exercise of its writ jurisdiction in matters of contractual disputes within the State and its Authorities.
The power to issue writs in any direction is included in Article 226 of the Constitution of India, where the courts have tended not to interfere in matters governed by the Indian Contract Act. However, in the event of breach of contract and specific performance for injunctions in private law, there arise contractual disputes.
Thus, the objective is to safeguard the government and not saddle it with obligations that are made from savings funds. Hence, if the contract is invalid, the government can ratify it, make a notification, and make it valid. The government can enter into contracts under Articles 298 and 299, but it has to fulfil certain essentials for the purpose of entering into contracts. However, all contracts are made to exercise the power of the state and are executed on behalf of the president, but neither the president nor the governor should be liable.
Conclusion
To conclude, Article 299 of the Constitution of India talks about contracts being made in the exercise of the Union and being expressed and made by the President or the Governor of the State. All such contracts need the assurance that the property made in the exercise of the power shall be executed on behalf of the President in such manner as he may direct and authorise. Thus, neither the President nor the Governor shall be liable in respect of any contract or assurance made for the purpose of the execution of the Constitution.
Moreover, the Supreme Court and the High Court have resolved this problem in various judgements based on the other party to the contract; every contract with the state does not constitute a breach of contract for whatever reason. But first, we have to prove that the contract is a statutory law that is bound by law, thereby making all the violations that the writ jurisdiction can invoke.
References
- www.taxguru.in
- www.blogipleaders.com
- www.legalserviceindia.com
- www.indiankannon.org
- www.scconline.blog
Students of Lawsikho courses regularly produce writing assignments and work on practical exercises as a part of their coursework and develop themselves in real-life practical skills.
LawSikho has created a telegram group for exchanging legal knowledge, referrals, and various opportunities. You can click on this link and join:
Follow us on Instagram and subscribe to our YouTube channel for more amazing legal content.
