CONSTITUTIONAL REMEDYS AND
EXHAUSTION DOCTRINE
By
FAKHAR MAHMOOD MAKHDOOM*
Etymologically the
Constitutional remedy of Writ means a written order, which is a remedial right
for the enforcement of substantive rights .
In
Since the second World War, due
to tremendous increase in number of Administrative bodies leading to greater
interference with the rights of ordinary citizens, the Law relating to judicial
control over these administrative bodies has to be relaxed and many technical
rules relating to the writs have been abandoned or modified so that the
judiciary can give greater relief in a large number of cases.
The superior Courts are
generally considered to be aware of the fact that there are innumerable forums
provided by Law to deal with the disputed actions of Public functionaries, and
if the courts themselves assume the role of administrative bodies in general,
they will not only disturb the administrative but also judicial set up. As a
matter of fact the framers of our Constitution have put a lot of responsibility upon
the High Courts by conferring discretionary jurisdiction. It is axiomatic that
discretion has to be exercised judiciously, but it may be stressed that the
objective of the framers is to arm the Court with this power to provide remedy
to deserving persons instead of leaning towards technicalities
.
Historically under English Law,
Exhaustion Rule was only applied to mandamus only and was not extended to
prohibition or certiorari. It is so rigorously followed that even writ of
mandamus was not granted on the score that another kind of prerogative writ is
available but today courts are not very particular in this respect. However the
general principle is that mandamus will be refused when there is a right of
action under the general law.
In
In
Nature and Scope
The term “alternative remedy”
was taken to mean an equally efficacious remedy grated by law. It is in fact
meant to supplement and not supplant what the law has already provided. The
complainant of breach of Statute must first avail of the remedy provided by the
statute before applying for a Constitutional remedy. An indulgence to the
contrary would be calculated to create distrust in statutory tribunals of
competent jurisdiction.
Sir John Donaldson MR has said,
“Where Parliament provides an appeal procedure, judicial review will have no
place” . In another case he said, “it is cardinal
principle that save in the most exceptional circumstances, the judicial review
jurisdiction will not be exercised where other remedies were available and have
not been used” .
The question whether a remedy
is adequate or not depends on the facts and circumstances of each case. The
adequacy of remedy will be judged in relation to:
a) The
nature and extent of the relief to be obtained through the alternative remedy.
b) The
point of time when the relief would be available particularly the conditions
relating to the expense and inconvenience involved in obtaining it .
Similarly the question of other
adequate remedy being available is of no consequence for the issue of writ of
Habeas Corpus where the question of liberty of a person is involved. The plea
of want of adequate remedy is not available where the difficulty in pursuing
the remedy was created by petitioner himself . The
word “adequate” signifies a concept of a relative nature. It can be
comprehended only as a state of correspondence between one thing and another. A
thing can be” adequate“or “not adequate” to something else as for example “not
adequate to the expectations”.
In language,
adequate to describe it or adequate to disease. When something is described as being adequate without
indicating what it is adequate - to, the context must supply that which has
been left unstated.
The first question in
construing the meaning of “adequate remedy” therefore is ……… to what was the
remedy to be adequate?
In this context we think the
answer must be that the remedy has to be adequate to the relief, i.e. the
removal or lessening of the cause of distress or anxiety; the deliverance from
that which is burdensome.
In the words of well-known
Persian proverb “while the antidote is being brought from
a) The
nature and extent of the relief.
b) The
point of time when that relief would be available.
c) The
conditions on which the relief would be available i.e. expenses and
inconvenience involved .
Determination of Adequacy of
Alternative remedy
The principle of Exhaustion was
a rule of judicial policy in
The remedy in order to restrict
the powers of High Court to act in the matter should be specific, adequate,
prompt and efficacious . But where the party applying
for a writ had not availed of the remedy of appeal provided by Special Law, it
was held that no writ of certiorari or mandamus or any other discretionary
order of that nature should have been issued by the High Court.
Former Chief Justice Munir in a celebrated case in this respect
has remarked that it is wrong on principle for the High Court to entertain
petitions for writs except in very exceptional circumstances when the law
provides a remedy by way of appeal to other tribunal fully competent to award
the requisite relief. The leading case on test of adequacy is Mahboob Ali
Malik’s case wherein the terms and
conditions of service of petitioners were altered by the Municipal Corporation
to his disadvantage and which were challenged by the petitioner in the
Constitutional Jurisdiction while taking the plea that alternative remedy of
civil suit is not adequate and efficacious. The question thus referred to the
full bench was that whether it is open to the court to entertain this petition
and whether it is satisfied that there is no other adequate remedy available.
The full bench held that if
there is another relief but that relief would not be available when petitioner
needs it most, is that remedy to be regarded as an adequate remedy or not? , is
within the meaning of Article 98 of the Constitution. It was further held that
if a person is suffering from pain that is continuing and two remedies are
available, one that will remove the pain after a few days of treatment and the
other that will remove it after few weeks of treatment, the second one is not
adequate in this case.
This precedent was subsequently
approved by Supreme Court in the case titled Presiding Officer vs Sadruddin
Ansari wherein the action of Presiding
Officer, of declaring some ballot papers invalid, was held to be wholly
arbitrary on the ground that the courts in exercise of writ jurisdiction
ordinarily declined to interfere in election cases.
The question whether or not a
particular remedy is adequate remedy will always depend on the facts of each
case. In cases of excess of jurisdiction, a petition under Article 98 lies
notwithstanding the existence of other alternative remedy .
The adequacy of the alternative
remedy must further be judged with reference to comparison of the speed,
expense or convenience of obtaining that relief through the alternative remedy,
with the speed, expense, or convenience of obtaining it under writ
jurisdiction
The discretion vested in High
Court under writ jurisdiction is a judicial discretion and had to be exercised
on an examination of the facts and circumstances of the case
.
In
a) Civil Suit
Generally civil suit is not
considered as an adequate remedy because of amount of time it takes. In fact it
involves the determination of disputed questions of facts. Where High Court
dismissed the writ petitions on the ground of existence of suit as alternative
remedy, the Supreme Court held that to disentitle a person from constitutional
remedy on exhaustion rule, the alternative remedy must be remedy in law i.e.
Remedium Juris and one which is not convenient, beneficial and effective is not
alternative remedy .
Where it is apparent from the
facts of a particular case that some questions are pending decision in a civil
litigation, the High Court should not during the pendency of that litigation
take upon itself to decide the same question under writ jurisdiction. In such
cases the parties concerned should be left to pursue their litigations in the
ordinary courts and should not be allowed to short-circuit them by petition
under Article 98 of constitution. Resort to High courts summary jurisdiction
should not be permitted if it amounts to circumvention of the normal process of
law .
However a petitioner is not
debarred to approach the High Court if he withdraws the suit already pending in
civil court .
It is important to note that
despite the Tariq Transport Company case the Exhaustion bar was strictly applied
only to writ of mandamus but not to that of certiorari or prohibition.
b) Appeal
Appeal is normally considered
as an adequate remedy but exceptions may be there e.g. where appeal is illusory
or if the order does not disclose the reasons or if the appellate tribunal has
not been constituted or if in appeal the matter involves the interpretation of
Constitution or the question is of public importance or if the petitioner is
challenging the vires of the legislation.
Where the party applying for a
writ had not availed of the remedy provided by some special law or had not
appealed from the order of the authority, it was held that writ should not have
been issued . Direct access to High Court for relief,
by passing the special forums created by special law, is not permissible
.
But when the appellants
themselves had invoked the statutory remedy of second appeal, no exception can
be taken to the view taken by the High Court that in the presence of the
pending appeal, the writ jurisdiction can not be invoked .
c) Revision
High Courts enjoy vast
discretion in this context. In criminal cases revision is considered as an
adequate remedy whereas in civil cases the situation is not yet clear.
So when other remedy in the
shape of criminal revision under section 435 Cr. P.C was available but not availed of it,
was held that writ jurisdiction can not be invoked .
But in cases of civil revision
on one hand a writ petition was held not barred even when the remedy of
revision was not availed of by the petitioner
on the other hand a writ petition was dismissed on the ground that
petitioners had not exhausted the remedy of civil revision available to them
before approaching the High Court .
However, suo moto revisional
powers vested in tribunal for example Lahore Appellate Tribunal under section
38 (3)(a) of Industrial Relations Ordinance 1969 can not be held to be an
adequate remedy available to be petitioner in order to disentitle him to file a
writ petition .
Supreme Court has ruled that
revision is not necessarily an adequate remedy .
Failure to have recourse to the revisional remedy does not necessarily operate
as a bar for invocation of constitutional jurisdiction .
In fact revision is a discretionary remedy and it cannot be called for as of
right, on this reasoning, it is not regarded as adequate remedy
.
d) Review
Since scope of review is very
limited hence it is not considered an adequate remedy. If the impugned order
contains an error, which is correctable by review, then review is considered as
adequate remedy. The remedy of review within the meaning of section 17 of
Punjab Local Government Ordinance 1979 was held would not stand in the way of
issuing writ, as doing so amounts to denial of relief under Article 199 . Where
the right of filing review petition was given to the petitioner who failed to
avail of such right, he was held not entitled to get any relief by way of
constitutional petition .
e) Election Petition
Primarily there are two kinds
of elections, one held under the ordinary law i.e. statutory, and the other
held under the Constitution. An election petition is generally considered to be
an adequate remedy. Even otherwise an election held under the Constitution
cannot be challenged except by an election petition presented in accordance
with law. The existence of an alternative remedy did not affect the
jurisdiction of court to grant a writ in proper case. In case of grave
injustice resulting from the non-exercise of writ jurisdiction, the court did
not decline to issue a writ simply because the relief claimed could be had by
some other proceedings .
Elections under the
Representation of People Act 1951 can only be challenged by an election
petition under that Act and writ is not maintainable in this case
.
f) Other Statutory
Remedies
Contracts cannot be enforced
through writ petitions, as there are alternative remedies available either to
file a suit or to invoke arbitration clause . A
petitioner who has not availed remedy under Employees Old Age Benefits Act 1976
cannot invoke Constitutional remedy . The remedy under
section 10 of Industrial Disputes Act is an adequate remedy .
Departmental remedy against wrong electricity bill is adequate remedy . In the same fashion Income Tax Tribunals are
competent to redress any grievance concerning tax assessment and writ cannot be
preferred to bypass this remedy . Similarly High Court
will not entertain any right if Security & Exchange Commissioner’s remedial
scheme is not availed , Excise Duty Tribunal’s remedy
is not exhausted or petition is not
filed before Federal Ombudsman ]
Exceptions to the Exhaustion
Rule
The existence of an alternative
remedy and its non-exhaustion is not a ground for refusing Constitutional
relief in following cases namely: The absence or excess of jurisdiction , An
error apparent on the face of record , Violation of principles of natural
justice , Contravention of Fundamental Rights , An error being absolute nullity
. Similarly a person could not be concluded by not appealing against a nullity .
What are not alternative Remedies
The possibility of having the
following remedies has not been considered remedies for refusing relief under Constitution :
a) Where
alternative remedy is too dilatory or difficult to give quick relief.
b) Where
the Act which provides alternative remedy is itself unconstitutional
c) Where
the statutory rule under which the order has been passed in itself ultra vires
the statute under which the order has been made .
d) Where
the restoration of property should be made in order to rectify the court’s own mistake .
e) Where
the alternative remedy is ineffective, delayed .
f) Where
the forum, which is to grant relief in the shape of alternative remedy, is not
competent to do so as per Constitutional directive or it is incompetent to adjudicate
upon the subject matter .
g) Where
the remedy itself is meaningless or involves extraordinary hardships for
petitioner.
The above discussion tends to
conclude that the rule of Alternative Remedy or Exhaustion rule is not
considered as a rule of law, if there is a defect of jurisdiction particularly
lack of jurisdiction. It is in fact a rule by which the courts regulate their
own discretion. Therefore if a court or authority passes an order by exceeding
its jurisdiction and even if the remedy of appeal or revision against such
order is available, Constitutional petition would be competently invoked
against such order.
It must be remembered that
object of Exhaustion Doctrine is to supplement and not to supplant what the law
has already provided.
As a matter of fact the framers
of our Constitution of 1973 have put a lot of responsibility upon the High
court by conferring discretionary jurisdiction. It is axiomatic that discretion
has to be used judiciously but it may be stressed that the objective of the
framers is to arm the court with this power to provide remedy to deserving
persons instead leaning towards technicalities. Superior Courts are not
expected to exercise the discretion to perpetuate injustice on mere pretext of
policy and convenience.Denial of relief on the ground of availability of any
other forum is justified only where justice and reason warrants it. Justice
Jackson of United States Supreme Court once rightly observed, “It might be
preferable to live under Russian Law applied by Common Law procedures than
under the Common Law enforced by Russian Law Procedures” .
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