INTRODUCTION

Blackstone defines writ as a mandatory letter from the king in parliament,

sealed with his great seal and directed to the sheriff of the county wherein the
injury is committed or supposed so to be, requiring him to command the
wrongdoer or party accused, either to do justice to the complainant or else to
appear in court and answer the accusation against him. Carter defines a writ as
follows, it was the kings order to his liege, written on parchment and sealed
with the royal seal and disobedience of the writ was a contempt of the royal
authority and punishable as such. In Wharton’s law dictionary a writ has been
stated to mean, a Court’s written order in the name of a state or other competent
legal authority commanding the addressee to do or refrain from doing some
specified act. Writs have a long history and one can trace their formal origin to
the Anglo-Saxon formulae by which the king used to communicate his pleasure
to persons and courts. The Anglo-Norman writs which we meet with after the
conquest are substantially the Anglo-Saxon writs formed into Latin but what is
new is the much greater use of them owing to the increase of royal power which
came with the conquest.
Under the above status of the law of writs, our country got independence and
the constitution of free India came into force. The law of writs as inherited from
the English colonial regimes was having a limited scope but its effectiveness
was time-tested. Therefore, the constitutional forefathers decided to retain the
concept as such in its nature as a broad parameter, but its scope was enlarged by
adding some new words to it and it was left open ended also. This was essential
also keeping in view the hopes and aspiration of the people. The people had
suffered the peril of the foreign yoke for centuries and their faith and confidence
in the new set-up was bubbling with spontaneous feelings of freedom wherein
they dreamt of endless liberties. However, it was not to be allowed to go as a
dream only and to fulfill these hopes a vast scope of liberty, justice and equality
was provided in the constitution. the fundamental rights were incorporated in
the Constitution, which fully ensured the basic human liberties. To fructify
these rights into actual liberties, a detailed legal provision was incorporated in
the constitution itself to safeguard these rights. Under article 32 the
enforceability to these rights was included as a fundamental right and an almost
parallel provision was provided under article 226 as a constitutional right to
understand these two provisions in their true spirit and context, it would be
desirable to first see them in their liberal context.
Supervisory Nature The writ jurisdiction is supervisory in nature and it is
different from appellate or revision jurisdiction. The basic purpose of writs is to
supply the defects of justice and for that matter while exercising the writ
jurisdiction the court has to examine the application of law rather than facts.
The court has to see the conduct of the body or authority whose actions are
under challenge before the court. The court has to enforce the right and not to
create a right. Similarly, it has to enforce the law and not to enact law. The writ
jurisdiction supervises the proceedings of the subordinate courts or authorities
in the application of law, the jurisdiction of such bodies or authorities exercising
the judicial and quasi judicial functions. B.P. Singh, J. so observed, "The
jurisdiction under Article 226 of the Constitution is limited to seeing that the
judicial or quasi-judicial tribunals or administrative bodies exercising quasi-
judicial powers, do not exercise their powers in excess of their statutory
jurisdiction, but correctly administer the law within the ambit of the statute
creating them or entrusting those functions to them. That is why when a
particular action is challenged before the court in a writ, it is the validity of that
particular action which is examined by the court and not the validity of law
under which such action is taken. The limited point to be seen in writs is
whether the law is allowed to take its own course or not. The rule of law has to
be ensured. Original Jurisdiction
It is the original jurisdiction of the High Court as well as that of the Supreme
Court. Even if the decision of a tribunal is challenged in writ petition, it would
be the original and initial jurisdiction of the court and it is not a continuation of
the proceedings of the earlier court or tribunal. It is because of the fact that it is
different from appellate jurisdiction wherein the facts 5
of the case and appreciation of evidence have to be re-examined. The
conclusions reached at by the lower authority or tribunal have to be appreciated
in view of the evidence and other related record of that particular matter. The
court may change the decision in appeal and appreciation of evidence, including
the quantum of penalty or sentence may be varied. But in writ jurisdiction, it is
none of the function of the court. The facts and evidence are not relevant for the
court in writs. The only thing which is important, to be seen by the court, is the
appreciation of application of law and the jurisdiction and competency of such
application. Therefore, the position of the court is that of a sentinel. Even if a
wrong appreciation of fact has led to a wrong conclusion by the lower court or
tribunal, the court may not give its decision on this issue and such issues are left
for the appellate court to take appropriate decision if approached by the
aggrieved party. Summary Proceedings Since no detailed appreciation of facts
and evidence are involved in writs, its proceedings are summary in nature. The
pleadings in the court are entertained in the form of affidavits and on the basis
of these pleadings and after hearing the arguments of the advocates for both the
parties, the writ petitions are decided. In exceptional cases, where the court
finds that a disputed fact is involved and the court simultaneously feels that it is
necessary to decide the matter in the interest of justice, the court may record
evidence or refer it to some subordinate court, to give its findings on the
disputed fact after recording due evidence. Sometimes, the court may appoint
commissions also to verify the veracity of facts produced before it. But these are
all exceptional proceedings and normally not applied in writ petitions. Suo motu
Jurisdiction
With the development and growth of law of writs in the county, the courts have
become increasingly conscious of the rights of the people. Now the courts in
certain cases don't wait for the writ petitions to be filed. The courts may take
suo motu notice of the violation of rights and law and accordingly, suo motu
jurisdiction is exercised in such matters. In these matters, if the court comes
across a matter, where there is blatant violation of law affecting the public at
large adversely, the court issues notice to the respondents at their level itself and
the respondents have to explain the courts their position and if required, the
court may direct them to repair the damage by way of a writ of mandamus.
Recently, during the past few years, the problem related 6
to the pollution of environment in some major metros of India including the
national capital region had made the court to take suo motu notice of such
problems. The traffic pollution in Delhi has been mitigated to a considerable
extent by converting the diesel operated buses to CNG operation under the
orders of the court. All necessary persons should be made parties to the Writ
Petition
If necessary parties are not impleaded in the writ, then writ is bad Udit Narain
Singh vs. Additional Member, Board of Revenue1 If no relief is claimed against
a party then he need not be made a party and if on the other hand relief is
claimed from a party then he is necessary party. Sayyad Hussain vs. Sayyad
Siddiqui2. Necessary party is one without whom no order can be made
effectively. Udit Narain Singh vs. Additional Member, Board of Revenue Writ
should be filed at the earliest stage, When the validity of the rule or law is
questioned, When an action against an employee is initiated under a certain
Regulation, and the employee seeks to question the validity of the Regulation
itself, then the Enquiry Officer appointed under the Regulation cannot decide
the validity of the Regulation, because the Enquiry officer is appointed under
the very regulations. The appropriate course would be to file a writ petition
seeking a writ of prohibition prohibiting the respondents from holding the
threatened enquiry. Delay in Filing writ No period of limitation has been
prescribed for the institution of a petition for a writ, but it must be filed within a
reasonable time. This is based on the principle of equity that delay defeats
equity. Law is there to help only those who are alert, and not those who are
carefree or negligent. It was held that unexplained delay of three months was
fatal to the writ petition. The same principle is followed if the petition is filed in
the Supreme Court under Article 32 of the Constitution of India. In the absence
of any period of limitation utmost expedition is the sin qua non for such claims.
The party aggrieved must move the Court at the earliest possible time and
explain satisfactorily all semblance of delay.

PUBLIC INTEREST LITIGATION

The above traditional rule of locus standi that a petition u/a 32 can only be filed
by a person whose fundamental rights is infringed has now been considerably
relaxed by the supreme court in its recent rulings. The court now permits the
Public Interest Litigations or Social Interest Litigations at the instance of Public
Spirited Citizens for the enforcement of constitutional and other legal rights of
any person or group of persons who because of their poverty or socially or
economically disadvantaged position are unable to approach the court for relief.
The concept of Public Interest Litigation, though came into existence by way of
judicial intervention to cater to the needs of under-privileged class of society, it
is the outcome of the philosophy enshrined in the Indian Constitution. The
independence of the country was the result of the prolonged struggle comprising
of the participation of all sections of the society. Therefore, the Constitution of
India was enacted as a document which could meet with the aspirations of all
sections of the society. The entire scheme and structure of the Constitution takes
due care of the welfare of downtrodden and depressed class of the society. The
Preamble of the Constitution forecasts liberty, equality, justice and fraternity for
all citizens of the country. It is not a statement in isolation, but it embodies an
enormous scope of growth for everybody who is governed by this constitution
WRITS AND PUBLIC INTEREST LITIGATION One of the important results
of the writ jurisdiction, under Article 32 and Article 226 of the Constitution is
the advent of Public Interest Litigation. The powers under the writ jurisdiction
are so enormous that our pro-active higher judiciary forged a new tool in the
form of PIL to mitigate the sufferings of the poor millions who had not got the
means or capacity to approach these courts against the violation of their
fundamental rights. Krishna Iyer, J. observed,
"Even Article 226 viewed in wider perspective, may be amenable to ventilation
of collective or common grievances, as distinguished from assertion of
individual rights, although the traditional view, backed by precedents, has opted
for the narrower alternative. Public interest is promoted by a spacious
construction of locus standi in our socio-economic circumstances and
conceptual latitudinarians permit taking liberties with individualization of the
right to invoke the higher 16
courts where the remedy is shared by a considerable number, particularly, when
they are weaker. Less litigation, consistent with fair process, is the aim of
adjectival law." The courts under compulsion of the circumstances invented this
concept of jurisprudence. It was an attempt by the court to 'infuse the language
of the soul' into the mouths of these 'dumb pale and meek'. Their hearts have
been given the language of humanity; this was possible only on account of the
new concepts and meaning given to the traditional procedural terms. The
concept of standing or Locus Standi was changed due to the requirement of the
circumstances. The court no longer waited for a person to petition before it
regarding a particular problem. If the court was satisfied that the fundamental
rights of a group or class of people were being infringed and the state was not
taking any steps to restore these rights, the court left the traditional procedure of
standing and allowed any public spirited person, who may represent the masses
suffering from the infringement of their rights. Not only this, in certain cases,
the court activated itself only on the basis of a letter written to one of the judges
of the court. Even in certain other cases, the court took cognizance of the reports
appearing in the press or the media and issued suo motu notices. Thus this was
the novel method of jurisprudence invented by the court to protect the human
rights including the fundamental rights from blatant violations. This was more
convenient for the court to apply this new tool, in view of the open procedural
powers available under writ jurisdiction in the constitution. Both Article 32 and
Article 226 of the Constitution speak of the powers and their purpose and nature
to issue writs, but neither of these articles speak of the procedure to use these
powers. The framers of the Constitution were well aware of the fact that the
enormity of powers given under these articles could not be bound down in a
fixed procedure. The protection of fundamental rights of the people of such a
large country may pose unvisualised and unanticipated problems to the court
and under such a situation, the court may be left to invent and apply its own
procedures to protect the dignity beauty and worth of human existence.
Bhagwati, J. has also observed,
"We do not think we would be justified in imposing any restriction on the
power of the Supreme Court to adopt such procedure as it thinks fit in exercise
of its new jurisdiction, by engrafting adversarial procedure on it, when the
Constitution makers have deliberately chosen not to insist on any such
requirement and instead, left it open to the Supreme Court to follow such
procedure 17
as it thinks appropriate for the purpose of securing the end for which the power
is conferred namely, enforcement of a fundamental rights." Moreover, the court
speaks of appropriate proceedings and the propriety of these proceedings is
directly proportionate to the basic purpose i.e. the protection of fundamental
rights that is why the traditional concept of locus standi has been given up in the
cases involving public interest. Another fact, which supports this new concept
of justice, is that Public Interest Litigation normally does not involve a contest.
The basic issue involved in such litigation is a problem violating the rights of a
group or class of people at large and the basic purpose of such litigation is not to
get somebody punished but to restore the infringed rights. Therefore, practically
there is no adversary in the matter. The respondent in such cases is the State or
an instrumentality of state as provided under Article 12 and the state has to give
their version of the problem and their plan to mitigate such problem. This is
practically a win-win situation for all. The public gets due relief through such
litigation and the state in due course gets rid of a problem which was the
responsibility of the state.
In Bihar Legal Support Society v/s Chief Justice of India6 In this case the court
made it clear that the strategy of Public Interest Litigation has been evolved by
this court with the view to bringing justice within the easy reach of the poor and
disadvantage sections of the community This element of public interest has also
resulted in a rapid growth of writ jurisdiction in various fields of life. The court
has reinvented its powers in uncharted lands which were so far not barren but
virgin. The growth of Article 21 and the role of the directive principles in the
making of the nation has treaded unseen paths and attained new heights in this
process. The concept of human dignity as enshrined in the Preamble of the
Constitution has been given a new incarnation. The human rights have been
elevated to a new status and the court has come to the rescue of the people and
their rights, as and when the circumstances so required.

WRITS AND NATURAL JUSTICE

The law of writs is mainly based on the principles of natural justice, equity,
good conscience and fair play. It is because of the fact that the purpose of writs
is to deliver efficacious and speedy justice; no formal rules of procedure can
something, which may regulate and direct the proceedings of the court. The
principles of fair play and natural justice have thus become guiding stars in the
law of writs. Since writs are public remedy, it is naturally expected that any
decision in the writ must appeal to the conscience of a common man. In other
words, the decision of the court must be equitable and fair. The fair play is an
informal concept, which cannot be reduced to particular parameters. Without
any legal procedures attached to it is still may be called an embodiment of
justice, equity and good conscience. the elements or concept of fair play cannot
be the same for each case. It is the facts and circumstances of each case, which
would determine the role of fair play. Thus the writs have to be decided with
fair play in mind wherein justice may be the ultimate goal. It is not a question of
gain or loss for the parties but the justice should remain victorious in each case.
One such example could be the case of Hira Nath Mishra v. 19
Principal Rajendra Medical College, Ranchi,8 wherein the element of fair play
went even beyond the principles of natural justice. The victim girl students were
not in position to depose in the presence of the petitioner. The court approved
their evidence to be recorded in the absence of the petitioner and on the basis of
the evidence of the girls, the petitioner was punished. The court rejected the
plea of natural justice in this matter and held that the course of action taken by
the authorities was appropriate in the interest of justice. Thus the element of fair
play has a dominant role in the writ jurisdiction. Natural justice is analogous to
fair play, though it is broader in concept and it is more or less defined within the
parameters of law. Its basic purpose is also the delivery of justice in a fair and
judicious manner. The first ingredient of natural justice is that no one shall be a
judge in his own cause. It speaks of impartiality and fairness. The judge should
have no interest in the matter to be placed before him for decision. It is of
fundamental importance that justice should not only be done but it should
manifestly and undoubtedly be seen to have been done. The concept of fair play
also means the same thing. The message of justice should go clear and straight
and nobody should be allowed to even remotely think that any personal interest
could influence it overtly or covertly. Even an implied signal of such interest or
bias would affect the credibility of justice. That is why any element of
pecuniary bias even if doubted on the part of the judge, notwithstanding its
actual application, the judge has no option but to isolate himself from such
decision. If the pecuniary interests were even remotely involved in the matter,
the judge would lose the right to decide the matter. It does not leave the scope
of further inquiry as to whether or not the mind was actually biased by such
interest or not. Once the fact of such interest is established, its impact goes
without saying. AIR 1973 SC 1260
However, if the interest of bias is other than pecuniary, a real likelihood of bias
has to be shown. Such bias could be in the form of close personal or business
relations, strong personal animosity or friendship or in the form of employer
and employee or that of an advocate or client. The judge or whosoever has to
adjudicate upon, should not hear evidence or receive representation from one
side behind the back of the other. The court would not go into the likelihood of
prejudices but even the risk of it is enough. It is because of the fact that no one
who loses the case would believe that he was fairly treated, if the other side had
access to the judge without his knowing.

While deciding a writ petition, this aspect of natural justice has to be duly taken
care of. It is being observed in the High Court meticulously. The judge normally
does not hear the matter involving his earlier client when he was working as an
advocate before elevation to the bench. Similarly, the close relatives of the
judges, if work as advocates in the same High Court, do not appear before their
relative judges. In the matters wherein a judge had earlier been an advocate
representing one party, such judge dissociates himself from the matter. Thus
apparently the High Court is very careful in such matters to sustain the faith of
the people in the judicial system. However, a remote possibility of personal bias
cannot be ruled out when an advocate after elevation as a judge in the same
High Court deals with his old advocate colleagues with whom he had remained
associated for years. Similarly, while dealing with the close relatives of the
brother judges or the relatives of the judges of the Supreme Court, the element
of personal bias may vitiate the mind of a common man corning to the court and
losing a case against such relation advocates, notwithstanding the actual
existence of such bias. The next important component of natural justice is the
due opportunity of being heard. Nobody can he condemned or punished
unheard. When a matter comes before the court or the authority exercising
judicial or quasi-judicial powers, the prime duty of such court or authority is to
ensure judicious proceedings. Under this principle of natural justice, both the
parties have to be provided an equal and sufficient opportunity of being heard.
Right from the service of notice to the delivery of final decision in the matter a
continuous association of both the parties has to be ensured in the proceedings.
Not only in judicial proceedings, even in disciplinary proceedings including the
departmental inquiries, the opportunity of being heard is an essential element of
such proceedings.
But unlike the provisions of the civil procedure code, the concept of natural
justice is flexible and resilient to acclimatize itself as per the facts and
circumstances of the case. The pendulum of natural justice should not be
allowed to swing too far to one side so as to ignore the requirement of
administrative efficiency and dispatch. Thus with due recognition to the
requirement of natural justice and fair play, the remedy of a particular problem
would have to be sought in the circumstances of the case itself. It is because of
the fact that too often the people who have done wrong seek to invoke the rules
of natural justice to avoid the consequences of their own misdeeds. Our
Constitution has taken a due care of such circumstances and the provisions of
21
Article 311(2) of the Constitution reflect such an intention wherein the
requirement of inquiry has been done away with, under the circumstances
explained in the said Article. It is thus not possible to bind the concept of
natural justice by laying down rigid rules regarding its application; everything
depends on the facts and circumstances of the matter. The only requirement of
natural justice is that the procedure before any tribunal which is acting judicially
has to be fair under all circumstances and it would not be fair that this general
principle is degenerated into a series of hard and fast rules. There must be a
balance between the need for expedition and the need to give full opportunity to
the defendant to see the material against him. However, except the
circumstantial requirement in individual cases, it would be contrary to the
natural justice for a judicial determination, affecting a person's rights and
liabilities to be made without an opportunity of being heard or without making a
written representation in that regard.

WRIT JURISDICTION OF THE SUPREME COURT

The Supreme Court has original, appellate and advisory jurisdiction. Its
exclusive original jurisdiction extends to any dispute between the Government
of India and one or more States or between the Government of India and any
State or States on one side and one or more States on the other or between two
or more States, if and insofar as the dispute involves any question (whether of
law or of fact) on which the existence or extent of a legal right depends. In
addition, Article 32 of the Constitution gives an extensive original jurisdiction
to the Supreme Court in regard to enforcement of Fundamental Rights. It is
empowered to issue directions, orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari to enforce
them. The Supreme Court has been conferred with power to direct transfer of
any civil or criminal case from one State High Court to another State High
Court or from a Court subordinate to another State High Court. The Supreme
Court, if satisfied that cases involving the same or substantially the same
questions of law are pending before it and one or more High Courts or before
two or more High Courts and that such questions are substantial questions of
general importance, may withdraw a case or cases pending before the High
Court or High Courts and dispose of all such cases itself. Under the Arbitration
and Conciliation Act, 1996, International Commercial Arbitration can also be
initiated in the Supreme Court.9
Article 32(1) Guarantees the right to move the supreme court by Appropriate
Proceedings for the enforcement of fundamental rights conferred in Part III of
the constitution. Clause 2 of Article 32 confers power on the supreme court to
issue appropriate Directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo-warranto and certiorari for the
enforcement of any of the rights conferred by Part III of the constitution. under
clause 3 of Article 32 Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or of the powers exercisable
by the supreme court under clause 2. clause 4 says 23
that the right guaranteed by Article 32 thus provide for an expeditious and
inexpensive remedy for the protection of fundamental rights from legislative
and executive interference. The appellate jurisdiction of the Supreme Court can
be invoked by a certificate granted by the High Court concerned under Article
132(1), 133(1) or 134 of the Constitution in respect of any judgment, decree or
final order of a High Court in both civil and criminal cases, involving
substantial questions of law as to the interpretation of the Constitution. Appeals
also lie to the Supreme Court in civil matters if the High Court concerned
certifies : (a) that the case involves a substantial question of law of general
importance, and (b) that, in the opinion of the High Court, the said question
needs to be decided by the Supreme Court. In criminal cases, an appeal lies to
the Supreme Court if the High Court (a) has on appeal reversed an order of
acquittal of an accused person and sentenced him to death or to imprisonment
for life or for a period of not less than 10 years, or (b) has withdrawn for trial
before itself any case from any Court subordinate to its authority and has in
such trial convicted the accused and sentenced him to death or to imprisonment
for life or for a period of not less than 10 years, or (c) certified that the case is a
fit one for appeal to the Supreme Court. Parliament is authorized to confer on
the Supreme Court any further powers to entertain and hear appeals from any
judgment, final order or sentence in a criminal proceeding of a High Court.
Under Articles 129 and 142 of the Constitution the Supreme Court has been
vested with power to punish for contempt of Court including the power to
punish for contempt of itself. In case of contempt other than the contempt
referred to in Rule 2, Part-I of the Rules to Regulate Proceedings for Contempt
of the Supreme Court, 1975, the Court may take action (a) Suo motu, or (b) on a
petition made by Attorney General, or Solicitor General, or (c) on a petition
made by any person, and in the case of a criminal contempt with the consent in
writing of the Attorney General or the Solicitor General.
Under Order XL of the Supreme Court Rules the Supreme Court may review its
judgment or order but no application for review is to be entertained in a civil
proceeding except on the 24
grounds mentioned in Order XLVII, Rule 1 of the Code of Civil Procedure and
in a criminal proceeding except on the ground of an error apparent on the face
of the record.10
In Daryao V/S State Of U.P11 In this case it was held that the ranting of an
appropriate relief under article 32 is not discretionary. the citizens are ordinarily
entitled to appropriate relief under article 32, once it is shown that their
fundamental rights have been illegally or unconstitutionally violated.

Constitution of India Writ Petitions under Articles 32 and 226 of the 'Article 32
v. Article 226 After going through the broad contours of the powers of the
Supreme Court under Article 32 and that of the High Courts under Article 226
of the Constitution, it is revealed that the nature of these powers is almost the
same but still they can be distinguished in their scope. The first and foremost
difference between the scope of these powers is that the powers of the Supreme
Court under Article 32 of the Constitution are limited only to the enforcement
of fundamental rights, whereas the High Court can exercise such powers for any
other purpose also apart from the enforcement of fundamental rights. Therefore,
the High Court encompasses a wider area of jurisdiction as far as the subject of
the writ jurisdiction is concerned. On the other hand, the Supreme Court has a
wider territorial jurisdiction than the High Courts. Although the Parliament is
duly empowered under Article 139 of the Constitution to invest the Supreme
Court with powers to issue writs, directions or orders for the purposes other than
the enforcement of fundamental rights. But no such law has been enacted by the
parliament so far. Moreover, being Apex Court of the country, it would not be
practically in the interest of justice to thrust more responsibility on the Supreme
Court under Article 139 of the Constitution and rightly so, the Parliament did
never attempt it.
The powers of the Supreme Court are further fortified under other provisions of
the Constitution apart from Article 32. If to see the powers of the Apex Court in
the entirety of the constitutional provisions, including the powers being
exercised by the court under Articles 32, 136 and 142 of the Constitution, it has
enormous powers to safeguard the rights of the citizen in any manner and at any
place. No doubt the scope of writ jurisdiction is wider with the High Courts than
that of the Supreme Court, but the Supreme Court has got open and undefined
powers under Article 142 to pass such decree or make such order -as is
necessary for doing complete justice in any cause or matter pending before it.
Therefore, Article 142 grants sort of residuary powers to the 32
Supreme Court under which any cause or matter may be decided by passing any
decree or order. Similarly, under Article 136 of the Constitution, the Supreme
Court has got powers to grant special leave to appeal from any judgment,
decree, determination, sentence or order in any cause or matter, passed or made
by any court or tribunal in the territory of India. The powers of the Supreme
Court under Article 136 are discretionary and even an appeal against the interim
orders of a court or tribunal can be entertained by the Supreme Court under this
provision.' Thus practically, the Supreme Court has got wider powers of
discretion than the High Court’s because the High Courts have got no such
powers as are with the Supreme Court under Article 136 and Article 142 of the
Constitution.
Since the nature of powers of the Supreme Court under Article 32 and that of
High Courts under Article 226 are substantially the same to the extent they
relate to the violation of fundamental rights; there is an implied element of
equality also between the two to that extent. There is no bar to approach the
Supreme Court directly under Article 32, but if a petition has been filed under
Article 226, the Supreme Court cannot be approached if such petition is pending
in the High Court. Moreover, if the High Court has decided the matter on
merits, the petitioner cannot move the Supreme Court under Article 32 on the
same cause of action. The only remedy in such cases could be an SLP under
Article 136 of the Constitution in the Supreme Court. But there could be
possibility of filing a writ petition under Article 32, in case the High Court
dismisses the petition on various discretionary grounds under Article 226. The
powers of the High Court under Article 226 are discretionary and a petition can
be dismissed, if there is any alternative remedy available under law or if the writ
petition involves a disputed question of facts, which could be better dealt with
by the civil court. It may also be dismissed on account of delay and laches or on
some other grounds, which in the eye of the court, is sufficient to dismiss the
petition without going into the merits of the case. The petition could be
dismissed in limine also by the High Court under its discretion. But the same
discretion is not available with the Supreme Court under Article 32 as far as the
violation of fundamental rights are concerned. Therefore, once the Supreme
Court is moved on account of violation of fundamental rights, it cannot refuse to
entertain the writ petition and the same is likely to be disposed of on merits.
Thus the principle of res-judicata cannot be applied if the matter has not been
decided by the High Court on merits. This issue was discussed at length by the
Supreme Court and Gajendra Gadkar J thus observed on the principle of res-
judicata, 33
"Now the rule of res-judicata as indicated in the code of civil procedure has no
doubt some technical aspects, for instance the rule of constructive res-judicata
may be said to be technical; but the basis on which the said rule rests is founded
on considerations of public policy. It is the interest of the public at large that a
finally should attach to the binding decisions pronounced by courts of
competent jurisdiction and it is also in the public interest that individuals should
not be vexed twice over with the same kind of litigation. If these two principles
form the foundation of general rule of res-judicata they cannot be treated as
irrelevant or inadmissible even in dealing with fundamental rights in petitions
filed under Article 32"
In Nilabati Behera V/S State of Orrisa21 the supreme court has laid down the
principle on which compensation is to be awarded by the court under article 32
and 226 to the victim of state action. the object to award compensation in public
law proceeding under article 32 and 226 is different from compensation in
private tort law proceedings. Award of compensation in proceeding under
articles 32 and 226 is a remedy available in public law based on strict liability
for contravention of fundamental rights to which the principle of sovereign
immunity does not apply even though it may be available as a defence in private
law in an action based on tort. the purpose of public law is not only to civilize
power but also to assure the citizens that they live under a legal system which
aims to protect their interests and preserve their rights. Based on this importance
of the principle of res-judicata, the court established a clear relation of the
powers of the Supreme Court under Article 32 and that of the High Court under
Article 226. It was finally held by the court in the same case,
"We hold that if a writ petition filed by a party under Article 226 is considered
on the merits as a contested matter and is dismissed, the decision thus
pronounced would continue to bind the parties unless it is otherwise modified.
or reversed by appeal or other appropriate proceedings permissible under the
constitution. It would not be open to a party to ignore the said judgment and
move this court under Article 32 by an original petition made on the same facts
and for obtaining the same or similar orders or writs. If the petition filed in the
High Court under Article 226 is dismissed not on the merits but because of the
laches of the party applying for the writ or 34
because it is held that the party had an alternative remedy available to it, then
the dismissal of the writ petition would not constitute a bar to a subsequent
petition under Article 32 except in cases where and if the facts thus found by the
High Court may themselves be relevant even under Article 32. The above
findings of the Supreme Court bring the writ jurisdiction of both the courts very
close to each other. In substance, they appear to be at par and the application of
mind by the High Court under Article 226 on a particular matter does not
require to be repeated by the Supreme Court in the same fashion on the same
issue for the same relief.
But this equality of powers binds both of the courts to keep a judicial decorum
to avoid mismanagement in the application of such powers. The parity of
powers does not mean that the High Court can entertain the matters inspite of
the fact that the Supreme Court was already seized of the matter. This would be
against the norms of judicial propriety. Such matter came before the Supreme
Court in Chavi Mehrotra v. Dir. Gen. Health Services22, In this case, when an
order passed by the Supreme Court was being implemented, a writ was filed in
the High Court and the same was entertained and some interim orders were
passed by the High Court which interfered with the directions issued by the
Supreme Court in a petition under Article 32. The Supreme Court took a serious
view of it and observed, "It is a clear case where the High Court ought not to
have exercised jurisdiction under Article 226 where the matter was clearly
seized of by this court in petition under Article 32 ..... The learned Single
Judge's perception of justice of the matter might have been different and the
abstinence that the observance of judicial propriety, counsels might be
unsatisfactory; but judicial discipline would require that in a hierarchical
system, it is imperative that such conflicting exercise of jurisdiction should
strictly be avoided. We restrain ourselves from saying anything more." Thus it
is the judicial propriety, which is an imperative force whereby such conflicting
exercise of jurisdiction may be avoided.
22 1995 Supp (3) SCC 434. 35
Though there is no such legal bar but the court may refuse a writ on the
availability of alternative remedy. Similarly, if the petitioner is not being
affected prejudicially, the court may refuse the writ. Such writ would not be
issued if the person concerned ceases to occupy the office. However, a
resignation after the notice would not stop the proceedings. Such writ would
also be not issued if it is futile in the cases where the alleged defect of
appointment can be cured by way of reappointment. It is a public interest writ to
prevent the misuse of public office. RES JUDICATA Res-Judicata is a rule of
Public Policy that there should be finality to binding decisions of courts of
competent jurisdiction and that the parties to the litigation should not be vexed
with the same litigation again. the principle is embodied in section 11 of civil
procedure code. if a question has been once decided by the supreme court under
article 32 the same question cannot be re-opened again under article 226 of the
constitution.
In Daryao v/s state of U.P23 it was held that where the matter had been Heard
and decided by the High court under article 226 the writ under article 32 is
barred by the rule of res judicata and could not be entertained. But there is an
Important exception to this rule of res judicata
23 AIR 1961 SC 1457 24 AIR 1967 SC 1335
In Gulam Sarvar v/s Union of India24 the court held that the rule of res judicata
is not applicable in the writ of Habeas corpus and where the petitioner has been
refused writ from the high court he may file a petition for the same in the
supreme court . The Parallel Provisions with a Difference
Article 32 and Article 226 of the Constitution provide two separate but parallel
provisions of writ jurisdiction with the Supreme Court and High Courts
respectively. Article 32 has been incorporated as a fundamental right and it
provides for the constitutional remedy against the violation of fundamental
rights. This remedy is limited to the violation of fundamental rights 36
only under Article 32. However, it is guaranteed under Article 32(2) and as per
specific provision of Article 32(4) it cannot be suspended otherwise, except, as
provided under the Constitution. Therefore, the right to move the Supreme is
almost an absolute right and guaranteed under the Constitution itself except in
case of suspension of this right as' provided under the Constitution (emergency
provisions). Though to grant relief or not to grant is absolutely the discretion of
the Supreme Court but the apex court can be moved for violation of
fundamental right as a matter of right. But to this limited extent, it is a different
matter with the High Court. The provision of Article 226 is a constitutional
provision, but it is not a fundamental right. There is no guarantee attached to it
unlike Article 32. The scope of Article 226 is wider than that of Article 32
because the operation of Article 226 is not limited to violation of fundamental
rights only, but it can be operated for other purposes also. However, in
entertaining the writs, the High Court enjoys wide and open powers as a matter
of discretion. It is a plenary power of the High Court without any fatter from
any provision of the Constitution. Since it is an extraordinary jurisdiction with
the High Court, it has no! to be resorted to in routine. The basic objective of this
power is to ensure justice wherever the miscarriage of justice is manifest. The
High Court has to reach the remotest comer of justice to eliminate injustice. For
this purpose, the court is not bound by any procedural fatter. But under Article
226 of the Constitution, the High Court is not bound to entertain every writ
petition filed with it. The court has absolute discretion to accept the writ petition
for adjudication or not. There could be many reasons or grounds on which the
High Court can refuse to entertain a writ petition. The facts and circumstances
of each and every case will have to be appreciated by the High Court before
entertaining the writ petition for hearing. The preliminary hearing of the writ
would apprize the High Court of the basic background of the matter and if the
court does not think it appropriate to exercise writ jurisdiction, it is dismissed in
limine without going into the merits of the case. Thus to this extent, the powers
of the High Court in writ jurisdiction are different from that of the Supreme
Court to the extent that the Supreme Court has not got this discretion to refuse
jurisdiction at that stage. The right to move the Supreme Court under Article 32
is a fundamental right and the Supreme Court is bound to exercise the writ
jurisdiction under Article 32 of the Constitution of India whenever there is an
infringement of fundamental right and the Supreme Court is moved by way of a
writ petition under this article.37
The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the
Constitution for the violation of fundamental rights guaranteed under Part – III
of the Constitution. Any provision in any Constitution for Fundamental Rights
is meaningless unless there are adequate safeguards to ensure enforcement of
such provisions. Since the reality of such rights is tested only through the
judiciary, the safeguards assume even more importance. In addition,
enforcement also depends upon the degree of independence of the Judiciary and
the availability of relevant instruments with the executive authority. Indian
Constitution, like most of Western Constitutions, lays down certain provisions
to ensure the enforcement of Fundamental Rights. These are as under: (a) The
Fundamental Rights provided in the Indian Constitution are guaranteed against
any executive and legislative actions. Any executive or legislative action, which
infringes upon the Fundamental Rights of any person or any group of persons,
can be declared as void by the Courts under Article 13 of the Constitution.
(b) In addition, the Judiciary has the power to issue the prerogative writs. These
are the extra-ordinary remedies provided to the citizens to get their rights
enforced against any authority in the State. These writs are - Habeas corpus,
Mandamus, Prohibition, Certiorari and Quo-warranto. Both, High Courts as
well as the Supreme Court may issue the writs. (c) The Fundamental Rights
provided to the citizens by the Constitution cannot be suspended by the State,
except during the period of emergency, as laid down in Article 359 of the
Constitution. A Fundamental Right may also be enforced by way of normal
legal procedures including a declaratory suit or by way of defence to legal
proceedings.
However, Article 32 is referred to as the "Constitutional Remedy" for
enforcement of Fundamental Rights. This provision itself has been included in
the Fundamental Rights and hence it cannot be denied to any person. Dr.
B.R.Ambedkar described Article 32 as the most important one, without which
the Constitution would be reduced to nullity. It is also referred to as the heart
and soul of the Constitution. By including Article 32 in the Fundamental Rights,
the Supreme Court has been made the protector and guarantor of these Rights.
An application made under Article 32 of the Constitution before the Supreme
Court, cannot be refused on technical grounds. In addition to the prescribed five
types of writs, the Supreme Court may pass any other 38
appropriate order. Moreover, only the questions pertaining to the Fundamental
Rights can be determined in proceedings against Article 32. Under Article 32,
the Supreme Court may issue a Writ against any person or government within
the territory of India. Where the infringement of a Fundamental Right has been
established, the Supreme Court cannot refuse relief on the ground that the
aggrieved person may have remedy before some other court or under the
ordinary law. The relief can also not be denied on the ground that the disputed
facts have to be investigated or some evidence has to be collected. Even if an
aggrieved person has not asked for a particular Writ, the Supreme Court, after
considering the facts and circumstances, may grant the appropriate Writ and
may even modify it to suit the exigencies of the case. Normally, only the
aggrieved person is allowed to move the Court. But it has been held by the
Supreme Court that in social or public interest matters, any one may move the
Court. A Public Interest Litigation can be filed before the Supreme Court under
Article 32 of the Constitution or before the High Court of a State under Article
226 of the Constitution under their respective Writ Jurisdictions.

TYPES OF WRITS (i) Writ of Habeas Corpus, (ii) Writ of Mandamus, (iii)
Writ of Certiorari, (iv) Writ of Prohibition, (v) Writ of Quo-Warranto, (I) Writ
of Habeas Corpus: It is the most valuable writ for personal liberty. Habeas
Corpus means, "Let us have the body." A person, when arrested, can move the
Court for the issue of Habeas Corpus. It is an order by a Court to the detaining
authority to produce the arrested person before it so that it may examine
whether the person has been detained lawfully or otherwise. If the Court is
convinced that the person is illegally detained, it can issue orders for his release.
A writ of habeas corpus derived from Latin word means "you may have the
body" is a writ (court order) that requires a person under arrest to be brought
before a judge or into court. The principle of habeas corpus ensures that a
prisoner can be released from unlawful detention—that is, detention lacking
sufficient cause or evidence. The remedy can be sought by the prisoner or by
another person coming to the prisoner's aid. This right originated in the English
legal system, and is now available in many nations. It has historically been an
important legal instrument safeguarding individual freedom against arbitrary
state action. It has been extended to non-police authorities, as in the 1898
Queen's Bench case of Ex Parte Dorothy Hopkins, which has successfully been
utilized more recently in India to liberate a woman from a madrasa.41
Who can apply for the writ the general rule is that an application can be made
by a person who is illegally detained. but in certain cases an application of
habeas corpus can be made by any person on behalf of the prisoner, ie, a Friend
or a Relatives.
A writ of habeas corpus, also known as the "great writ", is a summons with the
force of a court order; it is addressed to the custodian (a prison official for
example) and demands that a prisoner be taken before the court, and that the
custodian present proof of authority, allowing the court to determine whether
the custodian has lawful authority to detain the prisoner. If the custodian is
acting beyond his authority, then the prisoner must be released. Any prisoner, or
another person acting on his or her behalf, may petition the court, or a judge, for
a writ of habeas corpus. One reason for the writ to be sought by a person other
than the prisoner is that the detainee might be held incommunicado. Most civil
law jurisdictions provide a similar remedy for those unlawfully detained, but
this is not always called "habeas corpus". For example, in some Spanish-
speaking nations, the equivalent remedy for unlawful imprisonment is the
amparo de libertad ('protection of freedom'). Habeas corpus has certain
limitations. It is technically only a procedural remedy; it is a guarantee against
any detention that is forbidden by law, but it does not necessarily protect other
rights, such as the entitlement to a fair trial. So if an imposition such as
internment without trial is permitted by the law, then habeas corpus may not be
a useful remedy. In some countries, the process has been temporarily or
permanently suspended, in all of a government's jurisdictions or only some,
because of what might be construed by some government institutions as a series
of events of such relevance to the government as to warrant a suspension; in
more recent times, such events may have been frequently referred to as
"national emergencies." When it will lie The writ of habeas corpus will lie if the
power of detention vested in an authority was exercised mala fide and is made
in collateral or ulterior purposes. but if the detention is justified the high court
will not grant the writ of habeas corpus.42
The detention becomes unlawful if a person who is arrested is not produced
before the magistrate within 24 hours of his arrest and he will be entitled to be
released on the writ of habeas corpus.
The right to petition for a writ of habeas corpus has nonetheless long been
celebrated as the most efficient safeguard of the liberty of the subject. The jurist
Albert Venn Dicey wrote that the British Habeas Corpus Acts "declare no
principle and define no rights, but they are for practical purposes worth a
hundred constitutional articles guaranteeing individual liberty".
The writ of habeas corpus is one of what are called the "extraordinary",
"common law", or "prerogative writs", which were historically issued by the
English courts in the name of the monarch to control inferior courts and public
authorities within the kingdom. The most common of the other such prerogative
writs are quo warranto, prohibito, mandamus, procedendo, and certiorari. The
due process for such petitions is not simply civil or criminal, because they
incorporate the presumption of non-authority. The official who is the
respondent must prove his authority to do or not do something. Failing this, the
court must decide for the petitioner, who may be any person, not just an
interested party. This differs from a motion in a civil process in which the
movant must have standing, and bears the burden of proof.
In sunil Bhatra v/s delhi administration26 it has been held that the writ of
habeas corpus can be issued not only for releasing a person from illegal
detention but also for protecting prisoners from the inhuman and barbarous
treatment. the dynamic role of judicial remedies imports to the habeas corpus
writ a versatile vitality and operational utility as bastion of liberty even within
jails.

In veena sethi v/s state of bihar27

In this case it was held that the court was informed through a letter that some
prisoners, who were insane at the time of trial but subsequently declared sane,
were not released due to inaction of state authorities and had to remain in jails
from 20 to 30 years. the court directed they be released forthwith. 43
The habeas writ was used in the Rajan case, a student victim of torture in local
police custody during the nationwide Emergency in India in 1976.On 12th
March 2014, Subrata Roy's counsel approached the Chief Justice moving a
habeas corpus petition. It was also filed by Panthers Party to protest the
imprisonment of Anna Hazare, a social activist. (II) The Writ of Mandamus:
Mandamus is a Latin word, which means "We Command". Mandamus is an
order from a superior court to a lower court or tribunal or public authority to
perform an act, which falls within its duty. It is issued to secure the performance
of public duties and to enforce private rights withheld by the public authorities.
Simply, it is a writ issued to a public official to do a thing which is a part of his
official duty, but, which, he has failed to do, so far. This writ cannot be claimed
as a matter of right. It is the discretionary power of a court to issue such writs.
The primary purpose of this writ is to make the Government machinery work
properly. An order of mandamus is a command directed to any person,
corporation or an inferior tribunal, requiring them to do some particular thing
which pertains to their/his office and which is in the nature of a 44
public duty. The public servants are responsible to the public for the lawfulness
of their public duties and their actions under it. If a public authority fails to do
what is required under law or does beyond what was to be done, a writ of
mandamus may be issued to make him do what was required under law.
Mandamus may also be issued to a tribunal to compel it to exercise the
jurisdiction vested in it, which it has refused to exercise. Mandamus may also
be issued where there is a specific legal right, without specific remedy for
enforcement of such right and unreasonableness has no place. The Supreme
Court in various decisions has held that the doctrine of legitimate expectation is
akin to natural justice, reasonableness and promissory estoppel. It primarily
conceives a situation where justice and fair play get a place of pride and
perfection in the delivery of justice. A writ of mandamus is an order issued by a
superior court to a lower court or other entity commanding the lower court,
corporation or public authority to perform or not perform specific acts. Rules
applying to a mandamus include: The requested act must be used as a judicial
remedy. The act must conform to statutorily-authorized provisions. The write
must be judicially enforceable and protect a legal right. Three types of
mandamus are utilized, depending upon the legal circumstances.
• The alternative mandamus demands a defendant to appear before court,
perform an act or show cause for not having done so.
• The peremptory mandamus is used when a defendant fails to comply with an
alternative mandamus and which is an absolute command for performance.
• Third, the continuing mandamus requests an officer or authority to perform its
activities expeditiously for an indefinite period of time in order to prevent a
miscarriage of justice.

When it will lie Thus the writ or order in the nature of mandamus would be
issued when there is a failure to perform a mandatory duty. but even in the cases
of alleged breaches of mandatory duty the party must show that he has made a
distinct demand to enforce that duty and demand was met with refusal.45
1. the writ of mandamus can only be granted when there is in the applicant a
right to compel the performance of some duty cast upon the authority. the duty
sought to be enforced must be a public duty and not a private duty.
2. Thus writ of mandamus can be issued to public authority to restrain it from
acting under a law which has been declared unconstitutional.
3. the writ of mandamus can be granted only in cases where there is a statutory
duty imposed upon the officer concerned, and there is a failure on the part of
that officer to discharge the statutory obligation.

When it will not lie the writ of mandamus cannot be granted in case of
following circumstances
1. when the duty is merely discretionary
2. against a private individual or any private organization because they are not
entrusted with public duty.
3. A writ of mandamus cannot be granted to enforce an obligation arising out of
contract.

1. if a statute empowers a authority to decide disputes arising out of claim made

by one party under the statute, which claim is opposed by another party, then
prima facie and in the absence of anything in the statute to the contrary is the
duty of the authority to act judicially and the decision of authority is a quasi
judicial act.
2. if a statutory authority has power to do any act which will prejudicially affect
the subject then although there are not two parties apart from the authority and
the final determination of authority will be a quasi-judicial act provided that the
authority is required by the statue to act judicially.

Grounds on which writ can be issued. the writ of certiorari can be issued to
judicial and quasi-judicial body on the following grounds
1. where there is want or excess of jurisdiction

The writ of certiorari is issued to a body performing judicial or quasi judicial

function for correcting errors of the jurisdiction, as when an inferior court or
tribunal acts without jurisdiction or in excess of it or fails to exercise it. the want
of jurisdiction may arise from the nature of subject matter so that the inferior
court has no authority to enter on the inquiry or upon some part of it. want of
jurisdiction may also arise from absence of some preliminary proceeding or
upon the existence of some particular facts which are necessary to the exercise
of the courts power and the court wrongly assume that the particular condition
exists.
2. For correcting error of law apparent on the face of record

the writ is also issued for correcting an error of law apparent on the face of
record. it cannot be issued to correct an error of fact. what is an error of law
apparent on the face of record is to be decided by the courts on the facts of each
case.
In Hari Vishnu v/s Ahmed Ishaque30 the supreme court held that no error could
be said to be error on the face of record if it was not self-evident and it required
an examination and argument to establish it. an arror of law which is apparent
on the face of the record can be corrected by a writ of certiorari but not an error
of fact, howsoever grave it may appear to be. the reason for rule is that the court
issuing a writ of certiorari acts in a supervisory jurisdiction and not appellate
jurisdiction. accordingly it cannot substitute its own decision on the merits of
the case or give direction to be complied with by the inferior court or tribunal.
30 AIR 1955 SC 223 48

3. Disregard of principle of natural justice

A writ of certiorari also lies against a court or tribunal when it acts in violation
of the principles of natural justice. two principles of natural justice are generally
accepted—
1. the court or tribunal should be free from bias and interest—the principles that
the adjudicator should not have an interest and bias in the case that no man shall
be a judge in his own case and justice should not be done but manifestly and
undoubtedly seen to be done.
2. Audi Alteram Partem ie, the parties must be heard before the decision is
given.
when it will not lie the writ of certiorari cannot be issued against a private body,
co-operative electricity supply society limited incorporated under the co-
operative societies act, is a private body and not a public body discharging
public duties or functions and the writ petition is therefore not maintainable
against such a private society. "The second essential feature of a writ of
'certiorari' is that the control which is exercised through it over judicial or quasi-
judicial tribunals or bodies is not in an appellate but supervisory capacity. In
granting a writ of 'certiorari', the superior court does not exercise the powers of
an appellate tribunal. It does not review or re-weigh the evidence upon which
the determination of the inferior tribunal purports to be based. It demolishes the
order which it considers to be without jurisdiction or palpably erroneous but
does not substitute its own views for those of the inferior tribunal." It is a writ
(order) of a higher court to a lower court to send all the documents in a case to it
so the higher court can review the lower court’s decision. Appellate review of a
case that is granted by the issuance of certiorari is sometimes called an appeal,
although such review is at the discretion of the appellate court. A party, the
petitioner, files a petition for certiorari with the appellate court after a judgment
has been rendered against him in the inferior court.49
However, unlike a writ of prohibition, superior courts issue writs of certiorari to
review decisions which inferior courts have already made. The writ of
prohibition is the counterpart of the writ to certiorari which too is issued against
the action of an inferior court. The difference between the two was explained by
Justice Venkatarama Ayyar of the Supreme Court in the following terms:
“When an inferior court takes up for hearing a matter over which it has no
jurisdiction, the person against whom the proceedings are taken can move the
superior court for a writ of prohibition and on that an order will issue forbidding
the inferior court from continuing the proceedings. On the other hand, if the
court hears the cause or matter and gives a decision, the party aggrieved would
have to move the superior court for a writ of certiorari and on that an order will
be made quashing the decision on the ground of want of jurisdiction.” (IV) The
Writ of Prohibition: Writ of prohibition means to forbid or to stop and it is
popularly known as 'Stay Order'. This Writ is issued when a lower court or a
body tries to transgress the limits or powers vested in it. It is a Writ issued by a
superior court to lower court or a tribunal forbidding it to perform an act outside
its jurisdiction. After the issue of this Writ proceedings in the lower court etc.
come to a stop. The Writ of prohibition is issued by any High Court or the
Supreme Court to any inferior court, prohibiting the latter to continue
proceedings in a particular case, where it has no legal jurisdiction of trial. While
the Writ of mandamus commands doing of particular thing, the Writ of
prohibition is essentially addressed to a subordinate court commanding
inactivity. Writ of prohibition is, thus, not available against a public officer not
vested with judicial or quasi-judicial powers. The Supreme Court can issue this
Writ only where a fundamental right is affected.
A writ of prohibition is a writ directing a subordinate to stop doing something
the law prohibits. In practice, the Court directs the Clerk to issue the Writ, and
directs the Sheriff to serve it on the subordinate, and the Clerk prepares the Writ
and gives it to the Sheriff, who serves it. This writ is normally issued by a
superior court to the lower court asking it not to proceed with a case which does
not fall under its jurisdiction.50
These Writs are issued as "alternative" or "peremptory". An alternative Writ
directs the recipient to immediately act, or desist, and "Show Cause" why the
directive should not be made permanent. A peremptory Writ directs the
recipient to immediately act, or desist, and "return" the Writ, with certification
of its compliance, within a certain time. When an agency of an official body is
the target of the Writ of Prohibition, the Writ is directed to the official body
over which the court has direct jurisdiction, ordering the official body to cause
the agency to desist.
Although the rest of this article speaks to judicial processes, a writ of
prohibition may be directed by any court of record (i.e., higher than a
misdemeanor court) toward any official body, whether a court or a county, city
or town government, that is within the court's jurisdiction. A writ of prohibition
is issued primarily to prevent an inferior court from exceeding its jurisdiction,
or acting contrary to the rule of natural justice, for example, to restrain a Judge
from hearing a case in which he is personally interested. The term “inferior
courts” comprehends special tribunals, commissions, magistrates and officers
who exercise judicial powers, affecting the property or rights of the citizen and
act in a summary way or in a new course different from the common law. It is
well established that the writ lies only against a body exercising public
functions of a judicial or quasi- judicial character and cannot in the nature of
things be utilized to restrain legislative powers. These Writs are issued as
“alternative” or “peremptory.” An alternative Writ directs the recipient to
immediately act, or desist, and “Show Cause” why the directive should not be
made permanent. A peremptory Writ directs the recipient to immediately act, or
desist, and “return” the Writ, with certification of its compliance, within a
certain time. The writ can be issued only when the proceedings are pending in a
court if the proceeding has matured into decision, writ will not lie.
A writ of prohibition is issued primarily to prevent an inferior court or tribunal
from exceeding its jurisdiction in cases pending before it or acting contrary to
the rules of natural justice. It is 51
issued by a superior court to inferior courts from usurping a jurisdiction with
which it was not legally vested, or in other words to compel inferior courts to
keep within the limits of their jurisdiction. Thus the writ is issued in both cases
where there is excess of jurisdiction and where there is absence of jurisdiction
S. Govind Menon vs. union of India31 Prohibition is not a continuation of the
proceedings to be prohibited. Its object is on the contrary to arrest the inferior
tribunal's proceedings. It is a collateral matter progress essentially between the
two tribunals, an inferior one and other superior one by which the latter, by
virtue its power of superintendence over the former, restrains it within its
rightful competence. Its nature is held to depend upon the nature of proceeding
to be prohibited. The writ can be issued only when the proceedings are pending
in a court if the proceeding has matured into decision, writ will not lie. When
the court, before whom the matter is pending, has ceased to exist, in that
condition too, the writ of prohibition will not lie because there can be no
proceedings upon which it can operate but on the other hand, if the court is
functioning, the writ can be issued at any stage of the proceeding before the
inferior court or tribunal. It can be issued only against a judicial or legislative
functions. (V) The Writ of Quo-Warranto: The word Quo-Warranto literally
means "by what warrants?" It is a writ issued with a view to restraining a person
from acting in a public office to which he is not entitled. The Writ of quo-
warranto is used to prevent illegal assumption of any public office or usurpation
of any public office by anybody. For example, a person of 62 years has been
appointed to fill a public office whereas the retirement age is 60 years. Now, the
appropriate High Court has a right to issue a Writ of quo-warranto against the
person and declare the office vacant.
who can apply A writ of Qua-Warranto can be claimed by a person if he satisfy
the court that—
1. the office in question is public office
2. it is held by a person without legal authority

the writ of Qua Warranto is not issued in respect of an office of a private

character. thus in
Jamalpur Arya Samaj Sabha v/s Dr. D. Ram32 in this case it was held that the
high court refused to issue a writ Qua Warranto against the members of the
working committee on the Bihar Arya Samaj Sabha, a private association. The
meaning of the term Quo Warranto is ‘by what authority’. The writ of quo
warranto may be issued against a person holding a public office or
governmental privilege. The issue of summon is followed by legal proceedings,
during which an individual’s right to hold an office or governmental privilege is
challenged. The writ requires the concerned person to explain to the Court by
what authority he holds the office. If a person has usurped a public office, the
Court may direct him not to carry out any activities in the office or may
announce the office to be vacant. The writ is issued by the Court after reviewing
the circumstances of the case. There are a few conditions which must be
fulfilled for the grant of the writ of quo warranto India:
32 AIR 1954 Pat 297
• The concerned office must be a government unit or public office which
performs public duties. Examples of such office members are advocate general,
university officials, members of a municipal board.
• The public office must have a real existence. It should be permanent and
cannot be terminated.
• A person against whom the writ of quo warranto is issued must have the real
possession of the public office.

• The writ shall be issued only when the public office is held by a particular
person in an illegal manner

A writ of quo-warranto is issued to prevent a continuous exercise of unlawful

authority. However, it cannot undo the actions already taken by such authority.
It may be to avoid complications arising out of retrospectivity. It cannot
jeopardise the lawful rights accrued to individuals in this process. Although a
writ of mandamus can also be issued on the grounds of mala fides and
arbitrariness, but when the office is filled up, a writ of quo-warranto is
preferable. Mandamus is desirable to be issued when the office is vacant.
EXTENSION OF JURISDICITION OF HIGH COURT
Under article 230, Parliament can by law extend or exclude jurisdiction of a
high court over any union territory. the legislature of a state cannot increase,
restrict or abolish the jurisdiction.
 CONCLUSION
The constitution of India has given a wide powers under article 32 and 226 to
the public in general for the enforcement of rights. Under the Indian legal
system, jurisdiction to issue 'prerogative writs' is given to the Supreme Court,
and to the High Courts of Judicature of all Indian states. Parts of the law relating
to writs are set forth in the Constitution of India. The Supreme Court, the
highest in the country, may issue writs under Article 32 of the Constitution for
enforcement of Fundamental Rights and under Articles 139 for enforcement of
rights other than Fundamental Rights, while High Courts, the superior courts of
the States, may issue writs under Articles 226.
The Indian judiciary has dispensed with the traditional doctrine of locus standi,
so that if a detained person is not in a position to file a petition, it can be moved
on his behalf by any other person. The scope of habeas relief has expanded in
recent times by actions of the Indian judiciary. "The language of Article 226
does not admit of any limitation on the powers of the High Court for exercise of
jurisdiction, hereunder, though by various decisions of the Apex Court with
varying and divergent views it has been held that jurisdiction under Article 226
can be exercised only when body or authority, decision of which is complained
was exercising its powers in discharge or public duty and that writ is a public
law remedy.
 ADAMAS UNIVERSITY

NAME: SOUHARDYA ROY

ROLL NO. : 37

COURSE: BA.LLB(H)

SUBJECT: HISTORY

TOPIC: COLD WAR

ADAMAS UNIVERSITY

NAME: SOUHARDYA ROY

ROLL NO. : 37

COURSE: BA.LLB(H)

SUBJECT: CONSTITUTIONAL LAW 2

TOPIC: WRIT JURISDICTION OF SUPREME

COURT