Writs Scope and Nature.
Understanding Writs- Nature and Scope
Introduction:-
A:-ORIGIN: – The writ was a unique development of the Anglo Saxon Monarchy and consisted of a brief administrative order, authenticated (innovatively) by a seal. Written in the vernacular, they generally made a land grant or conveyed instructions to a local court. In the beginning, writs were the document issued by the King’s Chancellor against a landowner whose vassal complained to the King about an injustice, after a first summon by the sheriff to comply had been deemed fruitless.
B:-DEFINITION or MEANING:-
:-According to Cambridge Dictionary: – A Writ is a legal document from a court which orders someone to do something or to not do something.
:-In accordance with the Britannica: – Writ, in common law, order issued by a court in the name of a sovereign authority requiring the performance of a specific act.
Merriam Webster defines that “a Writ is an order or mandatory process in writing issued in the name of the sovereign or of a court or judicial officer commanding the person to whom it is directed to perform or refrain from performing an act specified therein”.
According to the Article written by Will Kenton published by Investopedia: – The term writ refers to a formal, legal document that orders a person or entity to perform or to cease performing a specific action or deed. Writs are drafted by judges, courts, or other entities that have administrative or judicial jurisdiction. These documents are part of common law and are often issued after a judgment is made, giving those involved in a suit the ability to carry out the judgment.
With the association of simple words, we can easily establish the meaning of the ‘Writs’ and define the same as “the command in writing in the name of the Court. It is a legal document issued by the court of law that orders a person or entity to perform a specific act or to cease performing a specific action or deed. In India, Writs are issued by the Supreme Court under Article 32 of the Constitution of India and by the High Court under Article 226 of the Constitution of India.
Article 32 in the Constitution of India 1949
32. Remedies for enforcement of rights conferred by this Part:-
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed;
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part;
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ) and
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution
The scope of Article 32 is not wide enough as Article 226. Article 32 can be invoked only to enforce fundamental rights under Part III. One cannot approach the Supreme Court for enforcement for other rights except fundamental rights. Power to issue writs under Article 32 is mandatory for the Supreme court because Article 32 is itself a fundamental Right and Supreme Court is the protector of these the Fundamental Rights. The writs are strong instruments issued against the government and government officials.
The provision of legal aid is fundamental to promoting access to courts. The Supreme Court of India has taken visionary procedures to promote access to justice when people would otherwise be denied their fundamental rights. It has done this by the twin strategy of loosening the traditional rules of locus standi, and relaxing procedural rules in such cases. Thus where it receives a letter addressed to it by an individual acting pro bono publico, it may treat the letter as a writ initiating legal proceedings.
Article 226
226. Power of High Courts to issue certain writs:-
Article 226(1) establishes that “Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose”.
Article 226(2) empowers the Hon’ble High courts by establishing that “The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories”.
Article 226(3) instituting that “Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without
(a) Furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated”.
As per Article 226(4) the power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article 32.
Article 226 is enshrined under Part V Chapter V of the Constitution. It empowers the High Courts to issue certain writs. Article 226 gives discretionary power to the High courts to issue direction, order, writs including the writs in nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari. Article 226 is invoked not only to for the fundamental rights but also a violation for other rights.
The differences between Article 32 and Article 226:-
1/-Power to issue writs under Article 32 is mandatory for the Supreme Court whereas High court has discretionary power to issue writs under Article 226.
2/-Article 32 is suspended during the period of the emergency whereas Article 226 cannot be suspended during emergency.
3/-Territorial Jurisdiction of the High court under Article 226 is narrower than the Territorial jurisdiction of Supreme Court under Article 226.
4/-The order passed by the Supreme Court under Article 32 will always supersede the order passed by the High courts under Article 226.
5/- Article 32 is itself a fundamental right (Right to constitutional Remedies) whereas Article 226 is not a fundamental Right.
The following cases are very relevant to understand the aforesaid Articles:-
In the case of the [1]Rudul Shah vs. the State of Bihar, Supreme Court invented new doctrine called compensatory jurisprudence under Article 32 as the court directed the State of Bihar to give compensation for illegally detaining the victim for the 14 years on a wrongful charge of the Murder.
In case of [2]Shobha Singh v. State of Bihar, decided on 16-01-2020 the Hon’ble Patna High Court held that the Act provided an alternative efficacious remedy of appeal against the order passed by the Collector, so the court was not inclined to interfere in the matter. Relying on Whirlpool Corpn. v. Registrar of Trade Marks, Mumbai, (1998) 8 SCC 1, it was further held that discretionary jurisdiction under Article 226 of the Constitution of India was subject to self-imposed restriction and such discretion could be normally exercised when there was no alternative efficacious remedy available or writ petition had been filed for the enforcement of any of the fundamental rights or where there had been a violation of the principle of natural justice or where the order or proceedings were wholly without jurisdiction or the vires of an Act was under challenge.
In the case of [3]Pushkar Singh v. State of Uttarakhand, decided on 17-02-2020, the hon’ble Patna High court while dismissing the petition explained that it cannot undertake the task of determining whether and where a road should be laid, for these were all matters in the executive realm though the villagers facing difficulty has merit and these claims could only be addressed by the state government and they do not fall under the judicial review proceedings under Article 226 of the Constitution of India. The Court, however, directed the respondents to examine the matter and take a considered decision regarding the laying of the road.
Let us understand the meaning, nature and scope of the main Writs:-
Writ of Mandamus:-
In India, the sine qua non for mandamus is the existence of a statutory public duty incumbent upon the person or body against whom the mandamus is sought. There must equally co-exist a corresponding right in the petitioner entitling him to claim the enforcement of such public duty. These two preconditions form the foundation for the issue of mandamus.
The primary scope and function of mandamus is to “command” and “execute” rather than to “enquire” and “adjudicate”. It cannot be issued to change the decision of a body so as to suit the petitioner. Obligations which are not of statutory nature cannot be enforced by mandamus. The writ petition is not maintainable when a remedy provided for under the Code of Civil Procedure is available.
Grounds for Writ of Mandamus the Writ can granted against a public authority if
• Acted against the law
• Exceeded his limits of power
• Acted with mala fides
• Did not apply his mind
• Abused his discretionary powers
• Did not take into account relevant consideration
• Has taken into account irrelevant consideration.
There are three kinds of mandamus:
- Alternative mandamus: A mandamus issued upon the first application for relief, commanding the defendant either to perform the act demanded or to appear before the court at a specified time to show cause for not performing it.
- Peremptory Mandamus: An absolute and unqualified command to the defendant to do the act in question. It is issued when the defendant defaults on, or fails to show sufficient cause in answer to, an alternative mandamus.
- [4]Continuing Mandamus: A mandamus issued to a lower authority in general public interest asking the officer or the authority to perform its tasks expeditiously for an unstipulated period of time for preventing miscarriage of justice.
Writ of Certiorari:-
The meaning of this writ is “To be certified”. This writ is both preventive and curative in nature. It is issued by SC and HC’s for quashing the order of any inferior court, tribunal or Quasi-Judicial body.
The Propositions laid in issuing this writ by the High Court in [5]Hari Vishnu Kamath vs. Ahmad Ishaque. 1. It is issued to correct the errors of Jurisdiction.
2. When court or tribunal acts illegal in its jurisdiction.
3. Order against principles of natural justice.
4. Court acts in exercise of its supervisory and not appellate Jurisdiction.
5. An error in the decision or determination itself may also be amenable to a writ of Certiorari.
In the case of [6]Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors., it is held by the hon’ble court that the parameters for the exercise of jurisdiction are 1. Check whether inferior court has exceeded its jurisdiction. 2. Mere formal and technical errors doesn’t attract this.
PURPOSE:-
The Constitution of India vests the power to issue certiorari in the Supreme Court of India, for the purpose of enforcing the fundamental rights guaranteed by Part III of the Constitution. The Parliament of India has the authority to give a similar certiorari power to any other court to enforce the fundamental rights, in addition to the certiorari power of the Supreme Court.
In addition to the power to issue certiorari to protect fundamental rights, the Supreme Court and the High Courts all have jurisdiction to issue certiorari for the protection of other legal rights. Constitution of India, Part V (The Union), Chapter IV (The Union Judiciary), art. 139 Constitution of India, Part VI (The States), Chapter V (The High Courts in the States), art. 226.
Writ of Quo-Warranto:-
It means “what is your authority”.
This Writ is issued to restrain a person from holding a public office.
Conditions:
1. Public office created by a statue;
2. Person to be appointed by a statue or statutory instrument.
Some Examples of this Wit:-
a) Subramanian Swamy petition against Jayalalitha in 2001.Two PIL’s against her appointment.
b) Manohar Reddy vs Union of India: two advocates filed a petition quashing the appointment of a Judge of a HC of AP.
This Writ is a kind of Judicial Review: – “Judicial review” is the idea, fundamental to the system of government that the actions of the executive and legislative branches of government are subject to review and possible invalidation by the judicial branch.
• Judicial review allows the Supreme Court to take an active role in ensuring that the other branches of government abide by the constitution.
• Judicial review was established in the classic case of [7]Marbury v. Madison.
• Dealt under Article 13, Article 32 and Article 226 of the Constitution of India. Judicial review is one of the checks and balances in the separation of powers: – the power of the judiciary to supervise the legislative and executive branches when the latter exceed their authority.
•Judicial review should be understood in the context of both the development of two distinct legal systems (civil law and common law) and two theories of democracy (legislative supremacy and separation of powers) is that some countries with common-law systems do not have judicial review of primary legislation.
• It is a basic structure of the constitution.
Writ of Habeas Corpus:-
[8]This Writ is a recourse of law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine whether the detention is lawful.
It is in the nature of an order calling upon the person who has detained another to produce the latter before the court
• To know on what ground he has been detained and
• To set him free if there is no legal justification for the imprisonment.
Increasing Scope of Habeas corpus:-
In the case of Kanu Sanyal v. District Magistrate it is held by the hon’ble court that the court may examine the legality of the detention without requiring the person detained to be produced before it.
In the case of Sheela Barse v. State of Maharashtra it is held that if the detained person is unable to pray for the writ of habeas corpus, someone else may pray for such writ on his behalf.
In the case of Nilabati Behera v. State of Orissa the petitioner was awarded compensation of Rs. 1, 50, 000.
The Indian judiciary, in a catena of cases, has effectively resorted to the writ of habeas corpus to secure release of a person from illegal detention. For example, in October 2009, the Karnataka High Court heard a habeas corpus petition filed by the parents of a girl who married a Muslim boy from Kannur district and was allegedly confined in a madrasa in Malappuram town. Usually, in most other jurisdictions, the writ is directed at police authorities. The extension to non-state authorities has its grounds in two cases: the 1898 Queen’s Bench case of Ex Parte Daisy Hopkins, wherein the Proctor of Cambridge University did detain and arrest Hopkins without his jurisdiction, and Hopkins was released, and that of Somerset V Stewart, in which an African slave whose master had moved to London was freed by action of the writ.
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.
In 1976, the habeas writ was used in the Rajan Case, a student victim of torture in local police custody during the nationwide Emergency in India. On 12 March 2014, Subrata Roy’s counsel approached the Chief Justice moving a habeas corpus petition. It was also filed by the Panthers Party to protest the imprisonment of Anna Hazare, a social activist.
The writ of habeas corpus is known as the “great and efficacious writ in all manner of illegal confinement”. It 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 brought 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 their authority, then the prisoner must be released. Any prisoner, or another person acting on their behalf, may petition the court, or a judge, for a writ of habeas corpus.
[9]In Kanu Sanyal V. district Magistrate Darjeeling & Ors. Case, the Supreme Court held that rather than focusing on the defined meaning of Habeas Corpus, i.e. produce the body, there should be a focus on the examination of the legality of the detention by looking at the facts and circumstances of the case. It stated that this writ is a procedural writ and not a substantive writ. This case dealt with the nature and scope of the writ of habeas corpus.
WRIT OF PROHIBITION:-
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 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.
[10]Thus the writ is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction.
• It is to forbid or to stop called as “Stay Order”.
• It is issued in cases where excess of Jurisdiction is and where there is absence of Jurisdiction.
• When the proceedings are pending in the court.
• It is issued by both SC and HC’s to any inferior court or Quasi-Judicial Body but not against legislative or administrative body.
What is difference between Article 226 and 227?
The Hon’ble Supreme Court, in the case of Surya Devi Rai vs. Ram Chander Rai, relied on several constitutions Judgments of the Hon’ble Apex court, one of which was Umaji Keshao Meshram and Ors. Vs. Smt. Radhikabai and Anr, which laid down scope, power and differences between Article 226 and Article 227.
The first and foremost difference between the two articles is that Proceedings under Article 226 are in exercise of the original jurisdiction of the High Court while proceedings under Article 227 of the Constitution are not original but only supervisory.
Article 227 substantially reproduces the provisions of Section 107 of the Government of India Act, 1915, excepting that the power of superintendence has been extended by this Article to tribunals as well. Though the power is akin to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the bounds of their authority and not for correcting mere errors.
The court further observed that power under Article 227 shall be exercised only in cases occasioning grave injustice or failure of justice such as when:
(In) The court or tribunal has assumed a jurisdiction which it does not have, (ii) The court or tribunal has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice, and
(iii) The jurisdiction though available is being exercised in a manner which tantamount to overstepping the limits of jurisdiction.
Conclusion:-
After going through the aforesaid facts, it is crystal clear that the Articles 32 and 226 both are the soul of the Constitution and they are the celestial weapon provided by the constitution to the citizens of India. These articles also provided relevant protection to the Articles 14, 15, 19 and 21 of our great constitution. Citizen of India can enjoy the fundamental rights under the shelter of these articles as per their respective wish and desire.
[1] (1983) 4 SCC 141
[4] Vineet Narain v. Union of India, AIR 1996 SC 3386.
[5] 1955-I S 1104 : ((s) AIR 1955 SC 233)
[6] (1958) SCR 1240
[7] 5 US 137 (1803)
[8] (Larson, Aaron (24 July 2016). “What is Habeas Corpus”. ExpertLaw.
[9] (1974 AIR 510)
[10] S. Govind Menon vs. union of India, AIR 1967 SC 1274.
Nagendra Pratap Singh (Advocate)
aryan_innag@yahoo.co.in
