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INTRODUCTION

Part III of the Constitution of India deals the fundamental rights of the person. This part is also called the heart of the Constitution, which provides right to life and liberty, equality before law, freedom of speech and expression, liberty of thought belief and worship, cultural & educational right, fair trial and right against discrimination etc. A writ can be filed before High Court or Supreme Court in case of infringement of the fundamental rights under Article 226 & Article 32 of the constitution of India respectively. Supreme Court entertain writ only in those cases where there is violation of fundamental rights, however under Article 226 a writ petition can be filed in High Court even in case of infringement of legal rights. Who can file a writ: Any citizen of India can file a writ petition, however, a foreigner can also file writ petition for enforcing his right to life and equality before law. Court can also issue writ in the interest of justice and public interest. Grounds for granting Writ: A writ is granted when there is violation of fundamental right or legal rights of person and when the inferior court, tribunal, board, or public officer has acted illegally or exceeded its jurisdiction or have no jurisdiction or there is violation of principle of natural justice i.e. the petitioner has not been grant opportunity to be heard or the allegations against him has not been disclosed to him and there is no other equally speedy and adequate remedy is available. Writ of habeas corpus can be filed for illegal detention if a person is illegally detained for more than 24 hours without producing him before a magistrate within 24 hours. The issues are resolved in the writ when there is only disputed question of law. The issues of pure facts which need trial are not resolved in the writ.

Types of Writs: . Constitution of India broadly provides for five kinds of 'prerogative writs', namely, Habeas Corpus, Certiorari, Mandamus, Quo Warranto and Prohibition. Basic details of which are as follows:
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The writ of prohibition is issued by a higher court to a lower court prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. In doing so, the higher court seeks a transfer of the case to itself The writ of habeas corpus means 'let us have the body'. It is a writ issued to a detaining authority to produce the detained person in court to know cause for detention. If the detention is found to be illegal, the court issues an order to set the person free. The writ of certiorari is one of the writs issued by the High Court or the Supreme court to protect the Fundamental rights of the citizens. It is issued to a lower court directing it that the record of a case be sent up for review with all the files, evidence and documents with an aim to overrule the judgement of the lower court. The writ of mandamus is an order of a court of law issued to a subordinate court or an officer of government or a corporation or any other institution commanding the performance of certain acts or duties. The writ of quo warranto is issued against a person who claims or usurps a public office. Through this writ the court inquires 'by what authority' the person supports his or her claim.

ORIGIN OF WRITS

Originally, a writ was a letter or command from the Sovereign, or from some person with appropriate jurisdiction. Early writs were usually written in Latin, and royal writs were sealed with the Great Seal. At a very early stage in the English common law, a writ became necessary, in most cases, to have a case heard in one of the Royal Courts, such as the King's Bench or Common Pleas. Some franchise courts, especially in the Counties Palatine, had their own system of writs that often reflected or anticipated the common law writs. The writ would act as a command that the case be brought before the court issuing the writ, or it might command some other act on the part of the recipient. Where a plaintiff wished to have a case heard by a local court, or by an Eyre if one happened to be visiting the County, there would be no need to obtain a writ. Actions in local courts could usually be started by an informal complaint, which may not necessarily need to be written down. However if a plaintiff wished to avail themselves of Royaland by implication superiorjustice in one of the King's courts, then they would need a writ, a command of the King, to enable them to do this. Initially for common law, recourse to the King's courts was unusual, and something for which a plaintiff would have to pay. For Royal Courts, the writ would usually have been purchased from the Chancery, although the court of the Exchequer, being in essence another government department, was able to issue its own writs. While originally writs were exceptional, or at least non-routine devices, Maitland suggests that by the time of Henry II, the use of writs had become a regular part of the system of royal justice in England. Prerogative writs The prerogative writs have their origin in the kings prerogative power of supritendence over the due observance of law by his officers and tribunals .The "prerogative" writs are a subset of the class of writs, those that are to be
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heard ahead of any other cases on a court's docket except other such writs. The most common of the other such prerogative writs are habeas corpus, quo warranto, prohibito, mandamus, procedendo, and certiorari. The due process for petitions for such writs is not simply civil or criminal, because they incorporate the presumption of nonauthority, so that the official who is the respondent has the burden to prove his authority to do or not do something, failing which the court has no discretion but to decide for the petitioner, who may be any person, not just an interested party. In this they differ from a motion in a civil process in which the burden of proof is on the movant, and in which there can be an issue of standing Indian law Under the Indian Legal System jurisdiction to issue 'prerogative writs' is given to Supreme Court and High Courts of Judicature of all Indian states. Law relating to the writ jurisdiction is provided in the Constitution of India. Supreme Court of India, which is the apex court in the country, can issue writ under Article 32 of the Constitution. While for High Courts, which are the apex court in any state, can issue writ under Article 226 of the Constitution of India. 'Writ' is eminently designed by the makers of the Constitution, and in the same way it is developed very widely and efficiently by the courts in India. Constitution of India broadly provides for five kinds of 'prerogative writs', namely, Habeas Corpus, Certiorari, Mandamus, Quo Warranto and Prohibition. Basic details of which are as follows:

writ of prohibition-The writ of prohibition is issued by a higher court to a lower court prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. In doing so, the higher court seeks a transfer of the case to itself writ of habeas corpus -The writ of habeas corpus means 'let us have the body'. It is a writ issued to a detaining authority to produce the detained person in court to know cause for detention. If the detention is found to be illegal, the court issues an order to set the person free. writ of certiorari -The writ of certiorari is one of the writs issued by the High Court or the Supreme court to protect the Fundamental rights of the citizens. It is issued to a lower court directing it that the record of a case be sent up for review with all the files, evidence and documents with an aim to overrule the judgement of the lower court.
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writ of mandamus -The writ of mandamus is an order of a court of law issued to a subordinate court or an officer of government or a corporation or any other institution commanding the performance of certain acts or duties. writ of quo warranto-The writ of quo warranto is issued against a person who claims or usurps a public office. Through this writ the court inquires 'by what authority' the person supports his or her claim.

WRIT OF CERTIORARI

Certiorari is a legal term in Roman, English, and American law referring to a type of writ seeking judicial review. Certiorari ("to be more fully informed") is the present passive infinitive of Latin certiorare, ("to show, prove, or ascertain"). A writ of certiorari currently means an order by a higher court directing a lower court, tribunal, or public authority to send the record in a given case for review. Literally, Certiorari means to be certified.The writ of certiorari is issued by the SupremeCourt to some inferior court or tribunal to transferthe matter to it or to some other superior authorityfor proper consideration. The various aspects of the writ of certiorari may following sub-divisions: be noted under the

1. The writ of certiorari is an order of the high court issued to inferior

courts, tribunals or authorities to transmit to it the record of proceeding pending with them for scrutiny and ,if necessary ,for quashing the same .1 In an often cited English case2 ,Atkin ,L.J. said the certiorari may issue: wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicialy,act in excess of their legal authority. The above proposition has been approved by the Supreme Court3though it has to be read subject to the clarifications and developments given below. It consists of four components,viz.,(1) any body of persons,(2) having legal authority,(3)to determine questions affecting the rights of subjects, and(4) having the duty to act judicially. The supreme court has held that the duty to act judicially be decided in each case in the light of the circumstances of the particular case and the construction of the particular ststutes. There are two prepositions4 however,wich are well stablished for ascertaining if the authority is under the duty to act judicially,namely-

1 2

Prabodh verma v. state of U.P,(1984)4 SCC 251:AIR 1985 SC 167,190 R v.Electricity Commrs.,(1924) 1 KB 171,204-205 3 Province of Bombay v.khushaldas S. AdvaniAIR 1950 SC 222 4 Province of Bombay v.khushaldas S. AdvaniAIR 1950 SC 222

(1) that if a statute empowers an authority,not being the court in the

ordinary sense,to decide disputes arising out of a claim made by one party under the statute,which claim is opposed by aother party,and to determine the respective rights of the consenting parties who are opposed to each other, ther is a lis, and prima facie ,and in the absence of anything in the statute to the contrary,it is the duty of the authority to act judicially and the decision of the authority is a quqsi- judicial act; and (2) that if a statutory authority has the power to do any act which will prejudicially affect the subject, then, although there are not two parties apart from the authorities and the contest is between the authority proposing to do the act and the subject opposing it, the final determination of the authority will be a quasi-judicial act provided the authority is required by the statute to act judicially.

Thus, according to the first poposition if their nare two contesting parties who are opposed to each other and there is a lis(dispute or contest) ordinarily the deciding authority shall be held to be under a duty to act judicially and the decision of that authority to be a judicial or quasi-judicial act. The second proposition contemplates the situation where there are no two contesting parties but thew contest is between the authority and the subject opposing it.the absence of a lis does not necessarily negative the order being judicial,5and in such cases ,the authority will be bound to act judicially only if it is required by the statute to act judicially.6

2. In determining the jurisdiction of writ of certiorari ,the courts of India

have for sometime been mainly guided by principles laid down in R v. Electricity commrs.7.R v. Legislative committee of the church assembly8 and Nakkudda ali v. Jayaratne9.Accordingly ,in order that a body may satisfy a required test ,it is not enough that it should have legal
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Shankarlal v.Sankarlal, AIR 1965 sc 507 Province of Bombay v.khushaldas S. AdvaniAIR 1950 SC 222 7 (1924)1 KB 171,205 8 (1928) 1 KB 411 9 1951 ac 66,78

authority to determine questions affecting the rights of subjects; there must be superadded to the characteristics ,the further characteristic that the body has the duty to act judicially.
3. A writ of certiorari is discretionary;it is not issued merely it is lawful

to do so. There are certain grounds for issue of certiorari as follows;


(a) want or excess of jurisdiction The writ of certiorari goes to a

body performing judicial or quasi-judicial functions for correcting errors of jurisdiction,as when an inferior court or tribunal acts without jurisdiction or in excess of it or fails to exercise it.10In all these cases there is defect of jurisdiction or power and the writ of certiorari lies.
(b) violation of procedure or disregard of principles of natural

justice-The writ of certiorari will lie to set aside the decisions in violation of the principles of natural justice. The law recognizes two principles of natural justice: (1) Audi alteram partem-it means hear the other side.it helds that the parties be given adequate notice and opportunity to be heard.(2) Bias or intrestit elds that the adjudicator should be disinterested and unbiased.
(c) error of law apparent on the face of the record- An error of law

in the decision itself may also be amebnable to a writ of certiorari,but it must be a manifest error apparent on the face of the proceedings,e.g., when it is based on the clear ignorance of the provisions of law. An error of fact ,however grave it may appear, cannot be corrected by a writ of certiorari. The reason for the rule is that the jurisdiction of the high court to issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an appellate court.11 5. A writ of certiorari cannot be issued for declaring an act or an ordinance void.12

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State of U>P v. Mohd.Nooh,AIR 1958 SC 86 Syed yakoob v. K.S Radhakrishanan,AIR1964 SC 477 12 Prabodh verma v. State of U.P,(1984)4 SCC 251

6. A writ of certiorari can be issued by a high court to courts subordinate to it but not to any high court or even to its own bench much less than to the supreme court or any of its benches.13

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 init. 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 following features of the writ of prohibition ay be noted; (a) A writ of prohibition commands the court or tribunal to whom it is issued to refrain from doing something which it is about to do.It prevents a tribunal possessing udicial or quasi-judicial powers from assuming a jurisdiction which it does not possess.Thus the writ lies both for excess of jurisdiction and absence of jurisdiction.14 (b) Prohibition has much in common with certiorari,both in its scope and i the rules by which it is governed. Thus both these writs lie against a judicial or quasi-judicial body but not against a executive body. In Hari Vishnu kamath v. S Amad ishaque15, the supreme court said:Both the writs of prohibition and certiorari have for their object the restraining of inferior courts from exceeding their jurisdiction and they could be issued not merely to court but to the authorities exercising judicial or quasi judicial functions. (c) In the case of Bengal immunity co. ltd v. State of Bihar16,the supreme court held that the existence of an alternative remedy may be more relevant in the context of a writ of certiorari,but where an inferior tribunal is shown to have usurped jurisdiction

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Surya dev ai v. Ram chander rai,(2003) 6 SCC 675 S. Govind Menon v.Union of India. AIR 1967 SC 1274 15 AIR 1955 SC 233,241 16 AIR 1955 SC 661

which does not belong to it that consideration is irrelevant and the writ of prohibition has to issue as of right.17

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 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 features of the writ of mandamus are as follows; (a) Mandamus is a judicial remedy which is in the form of an order from a supreme court to any government,court,corporationor public authority to do or to forbearfrom doing some specific act which that body is obliged under law to do or to refrain from doing,as the case may be,and which is in the nature of a public duty and in certain cases of a statutory duty.18 (b) The applicant praying for the writ of mandamus show that he has a legal right to compel the opponent to do or to refrain from doing something or ,in the words of supreme court, there must be in the applicant a right to compel thre performance of some duty cast on the opponent. 19 The duty sought to be enforced must have two qualities. (1) it must be a duty of public nature. (2) the duty must be imperative and not a discretionary one;in other words ,mandamus will lie to compel the performance of an absolute duty. (c) Normally ,a writ of mandamus does not issue to ,or an order in the nature of mandamus is not made,against private persons.20

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Followed in Calcutta Discount Co.Ltd v. ITO,AIR 1961 SC 372,380 A.T Markose:Judicial control of adminstritative action in India,p. 364 19 State of M.P v. G.C Mandawar,AIR, 1954 SC 493 20 Praga tools Corp v.C.A Imanual (1969) 1 SCC 585

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(d) One of the condition for the grant of the relief of mandamus is

that there must be a demand for a relief and its refusal by the authority concerned.21 (e) A writ of mandamus cannot issue to the state legislature to prevent it from considering a bill which is allegaed to be in violation of the constitution.22 (f) Mandamus has very commonly been issued to restrain an administrative authority from merely commiting an ultra vires act.23 Likewise ,it is issued to prevent the government from enforcing an unconstitutional act or notification.24 (g) Normally ,the courts must be very cautious and slow in issuing mandamus to the high constitutional functionaries such as president of India or Governor of a state.

21 22

Annapoorna Farming&Fishery Ltd. V.state,AIR 1953 Cal 756 Chotey Lal v. State of U.P AIR1951 ALL 228 23 State of Bihar v. D.N. Ganguly AIR 1958 SC1018 24 Y.Mahaboob Sheriff &sons v.Mysore state transport authority,AIR 1960SC321

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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. The following features of the writ of quo warranto may be noted: a. The object of this writ to prevent a person who has wrongfully usurped an office from continuing in that office.25 The writ calls upon the holder of the office to show to the court under what authority he holds the office. If the court determines that the incumbent is holding the office in question illegally, it would pass the order of ouster which must be obeyed by him. b. Before a citizen can claim a writ of quo warranto, he must satisfy the court that the office in question is a public office and is held by a usurper without legal authority and that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not. c. There is no question of delay in presenting a petition of a writ of quo warranto in which the right of a person to function in a certain capacity is challenged because everyday the person so acts in that capacity a fresh cause of action arises.26 d. The writ of quo warranto will not lie in respect of an office of a private nature.27 e. An application for the writ of quo warranto challenging the appointment to an office of public nature is maintainable at the
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University of Mysore v.Govinda rao AIR 1965 SC 491 S.S Shewale v.Jalgaon borough Municipality,ILR 1958 BOM 113 27 R. v. Mousley,(1846) 115 ER 1130,1135

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instance of any private person, although he is not personally aggrieved.28

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. As regards this writ we may note its features as under: a. It is a process by which a person who is confined without legal justification may secure a release from his confinement. b. The writ is, in form, an order issued by the high court calling upon the person by whom a person is alleged to be kept in confinement to bring such person before the court and to let the court know on what ground the person is confined. If there is no legal justification for the detention, the person is ordered to be released. c. Every application for this writ has to be accompanied by an affidavit stating the nature and circumstances of the confinement. d. A person is not entitled to be released on a petition of habeas corpus if there is no illegal restraint. The question for a habeas corpus court is whether the subject is lawfully detained. If he is ,the writ cannot issue, if he is not, it must issue. e. The writ of Habeas Corpus is an effective means of immediate release from unlawful detention, whether in prison or in private custody. Physical confinement is not necessary to constitute detention. Control and custody is sufficient.29 f. If in a plea for habeas corpus the detaining authority pleads that detenu has already been released, but the fact of release is found to be

28 29

Biman Chandra v.governor,AIR 1952 CAL 799 Cox v. Haikes ,(1819) 15 AC 506

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false and the detenu is not traceable the court may order payment of compensation.30

ARTICLE 32 AN INSIGHT

This article provides for the remedies for enforcement of rights of the persons. This article reads as: 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 ) (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution Comment: This article describes the last of the fundamental rights. Unlike other rights, it is remedial in nature and not substantive in nature. But it is in no way less important than the other rights. Just as the remedy of habeas corpus is called the bulwark of liberties inn England, and this article has been called the heart and soul of the constitution. In the words of Dr. Ambedkar:31 If I was asked to name any particular article in this constitution as the most important-an article without which this constitution would be a nullity-I
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Postangbam Ningal Thokchom v. General officer commanding AIR 1997 SC 3534 Constituent assembly debates,Vol. VII pg.953

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could not refer to any other article except this one . It is the very soul of the constitution and the very heart of it. The right to take proceedings by original petition straight in the supreme court for the enforcement of fundamental rights is guaranteed in Article 32. The significance of this right has been assessed by gajendragadkar,J.,later CJ,thus: 32 The fundamental right to move this court can therefore be appropriately described as the cornerstone of the democratic edifice raised by the constitution. That is why it is natural that this court should, in the words of Patanjali Shastri, J., regards itself as the protector and guarantor of fundamental rights and should declare that it cannot, consistently with the responsibility laid upon it ,refuse to entertain applications seeking protection against the infringement of such rights(vide Romesh Thapar v.State of Madras)33

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Prem chand garg v. Excise commr U.P ,AIR 1963 SC 996,999 1950 SCR 594,597,AIR 1950 sc 124,126

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ARTICLE 226-AN INSIGHT

This article deals with the power of high courts to issue certain writs to protect the rights of the person. This article reads as: 226. Power of High Courts to issue certain writs (1) 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 (2) 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 (3) 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
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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 (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 32 226. A Constitutional validity of Central laws not to be considered in proceedings under Article 226 Omitted Comment: Article 226 of the constitution confers a power on all the high courts of India which they did not enjoy before the commencement of the constitution. It enables them to issue to any person or authority, including in appropriate cases any government, orders or writs for enforcement of any of the rights conferred by part III and for any other purpose. The power conferred on the high courts under article 226(1) can, in a proper case, be exercised even against the legislature. The five writs specifically mentioned in article 226 are known in English law as prerogative writs, for they had originated in the kings prerogative power of superintendence over the due observance of law by his officers and tribunals. The prerogative writs are extraordinary remedies intended to be applied in exceptional cases in which ordinary legal remedies are not adequate. Primarily the powers under article 226 have to be exercised against public bodies and rarely against private persons except in the area of human rights which is acquiring horizontal application. The court explained the reasons ,which led the framers of the constitution to confer power on high court to issue prerogative writs,in the following words: The makers of the constitution , having decided to provide for certain basic safeguards for the people in the new set up which they called fundamental rights,evidently thought it necessary to provide also a quick and inexpensive remedy for the enforcement of such rights and, finding that the prerogative writs, which the courts in England have developed and used whenever urgent necessity demended immediate and decisive inter-position ,were peculiarly suited for the purpose,they conferred ,in the states sphere,new and wide powers on the high courts of issuing directions,orders or writs primarily for the enforcement of fundamental rights ,the power to issue such direction,etc. For any other purpose being also included with a view
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apparentaly to place all the high courts in the country in somewhat the same position as the court of kings bench in England34 So,the very purpose of this article seems to safeguard the fundamental rights of the public in any case.

IMPLIED CONCEPTS IN WRIT JURISDICTION


I. LOCUS STANDI Locus standi means, whether a petitioner is entitled to invoke the jurisdiction of the Court. It means the legal capacity of the person concerned to challenge an act or a decision. Whether the decision is legally valid or not is irrelevant for considering the question whether the petitioner has the locus standi to invoke the jurisdiction the Court. Only an aggrieved person or an interested person can invoke the jurisdiction of the court for redressal of grievances. If a petitioner has no locus standi to file the petition before the Court he cannot be heard on merits. In order to have locus standi to file the petition to invoke the jurisdiction of the High Court the petitioner should be an aggrieved person. Generally a person is said to be aggrieved by an order which is to his detriment pecuniary or otherwise cause him some prejudice in one form or other. It should be understood that to mean that an aggrieved person will be a person who has genuine grievance to be submitted before the Court because of an action which has been made or taken and which prejudicially affected his interest. II. Where a legal wrong or a legal injury is caused to a person or to a class of persons due to the violation of any Constitutional or legal right or any burden is imposed in contravention of any constitution or provision or without authority of law or any such legal wrong or legal injury or illegal burden is threatened and such person or definite class of person is by reason of poverty, helplessness or disability or economically disadvantaged position to approach the court for appropriate reliefs, any member of the public can maintain an application for an appropriate direction or order from the High Court under Article 226 of the Constitution of India. III. against Whom Writ may be issued.

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Election Commission v. Saka Venkata Subba Rao,AIR 1953 SC 210,212

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A writ can be filed only against State and the same is not maintainable against private individual or corporations. However, a private individual or corporation can be a party in the writ partition if relief sought in the writ petition affects his interest. Who is State: State has been defined under Article 12 of the Constitution as "the State" includes the Governmental and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. However after the decision of the Supreme Court in Airport Authority case the definition of the state has been widened up and it includes all authorities which are instrumental to government or Government has control in the appointment/removal of office bearer/employees, funding and functions of such authorities. Now the societies registered under societies Act, Universities, Boards etc. are state under Article 12 of Constitution of India.

For deciding the question whether a writ would be issued by the High Court in a given circumstance first it should be decided whether against whom a writ can be issued. The general rule is that a writ lies against the State as defined under Article 12 of the Constitution of India. The definition of State include (1) the Government and the Parliament of India (2) the Government and Legislature of each State(3) all local or other authorities within the territory of India and (4) all local or authorities under the control of Government of India. The expression other authority as contemplated under Article 12 of the Constitution is wide enough to include within it every authority which is a creature of a statute or it is functioning within the territory of India or under the control of India. In R.D Shetty Vs. International Airport Authority (AIR 1979 SC 1628) the Supreme Court held that the Airport Authority comes within the ambit of State as defined under Article 12 of the Constitution of India following the earlier judgement in Rajasthan Electricity Board case (AIR 1967 SC 1857) and Sukhdeo decisions of the Supreme Court on the Interpretation of the word other authorities contained in Article 12 of the Constitution of India, viz 1981 SC 487. Since Article 226 of the Constitution says that every High Court has got power to issue writ, order or direction to any person or authority including
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the government, the question arises whether a writ will issue against a private individual. It has been held that a writ can be issued against a person who exercises a statutory function or performs a public duty. IV. The Supreme Court has held that if the authority is an agency or instrumentality of the State and where there is financial assistance to meet almost all expenditure of the authority and where there exists a deep and pervasive state control and the functions of the authority are of public importance and closely related to governmental functions it would satisfy the ingredient of the definition of state under Article 12 of the Constitution of India. V. Territorial Jurisdiction: Jurisdiction means the power or authority of a Court to hear and determine a cause and also to adjudicate and exercise a judicial power in relation to it. In other words it means the authority of a Court to decide the matter which is agitated before it. VI. Prior to the Constitution 15th Amendment Act 1963 under Article 226 the power of High Court could be exercised throughout the territories in relation to which it exercises jurisdiction. That means the writs issued by the High Court cannot go beyond the territories subject to its jurisdiction and the person or authority against whom the writ is issued by the High Court may be within those territories VII. After the constitution 15th Amendment Act 1963 after clause (1) , new Clause (1-A) which was later re-numbered as Clause (II) by the Constitution, 42nd Amendment Act 1976 was inserted. As per the amendment the power conferred in the High Court by Clause I of Article 226 to issue directions, orders or writs can 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 not withstanding that the seat of such person is not within those territories. As per the above amendment the arising of cause of action has become an additional ground to confer jurisdiction to the High Court under Article 226 of the Constitution of India. So the legal effect of Clause (I-A) by the 15 th Amendment Act 1963 renumbered as Clause (II) by the 42nd Amendment Act 1976, is that a writ can be issued by the High Court against a person, Government or authority within whose jurisdiction the cause of action partly
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or in whole arises. The Constitution 15th Amendment Act came into force on 05- 10- 1963. The word cause of action has not been defined either in the Constitution or in the Code of Civil Procedure. But it should be understood that as a bundle of essential facts which it is necessary for the litigant to prove before he can succeed in the litigation. In the decision reported in AIR 1989 SC 1239 it is observed that a cause of action means a very fact which if traversed it is necessary for the plaintiff to prove in order to support his right in the judgement of Court. In other words it is a bundle of facts which taken with the law applicable to them gives the plaintiff a right to relief against the defendant. Whether any particular facts constituted a cause of action or not will depend upon the facts and circumstances of each case. VIII. Purpose for which Writs may be issued by the High Court The High Court may exercise the power vested in it under Article 226 of the Constitution of India for two purposes viz., (1) for enforcement of fundamental rights and (2) for any other purpose. The power of the High Court under Article 226 are much wider than the power conferred on the Supreme Court under article 32 of the Constitution of India. The right of a citizen to move the Supreme Court under Article 32 of the Constitution is for the issue of writs, directions or orders for the enforcement of the rights conferred on a citizen under Part III of the Constitution which deals with fundamental rights. The expression for any other purpose, contained in Article 226 of the Constitution contemplate the issue of writs, orders and directions for purposes other than enforcement of fundamental rights. The correct interpretation of the above words means for the enforcement of any legal right and the performance of any legal duty. IX. Disputed question of facts: The High Courts exercise of its extra- ordinary jurisdiction vested in it under Article 226 of the Constitution of India will not make a rowing enquiry into disputed question of fact. Since the proceedings under Article 226 of the Constitution are of a summary nature disputed questions of facts are not normally allowed to be agitated and High Court would not proceed to determine such questions. X. Suppression or concealment of material facts:
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It is a fundamental principle of law that a person invoking the extraordinary jurisdiction of the High Court under Article 226 of the Constitution of India must come with clean hands and should make full and candid disclosure of all material facts and should not suppress deliberately any material facts and circumstances from the Court. The person who seeks to invoke the extra-ordinary jurisdiction of the High Court under Article 226 of the Constitution of India should disclose all materials without any reservation even if those facts are against him. He cannot pick and choose facts which are in his favour and disclose them and to suppress other facts which may go against him. Material Facts though not defined under the Constitution would mean a fact which has some bearing or connection to the main points in the petition and which is material for granting the relief claimed. XI. Delay and Laches: The power conferred on the High Court under Article 226 of the Constitution is a discretionary remedy. Nobody can claim the relief under Article 226 of the Constitution as of a right. It is mandatory that a person who wants to get his grievances redressed by invoking the extraordinary jurisdiction of the High Court should come to the Court at the earliest possible opportunity. The inordinate delay in approaching the High Court with a grievance will entail the refusal of the extra ordinary jurisdiction in favour of a person. There is no period of limitation prescribed under Indian Limitation Act for filing a writ petition in the High Court for redressal of grievance. The measure of delay is left to the judicial discretion of the court. There is no hard and fast rule as to when the High Court should refuse to exercise its jurisdiction in favour of a party who moves the Court after considerable delay. If there is willful negligence and laches and there is unexplained delay and the matter has become stale the Court will refuse to exercise its extraordinary jurisdiction. XII. RES JUDICATA- The general principles of res judicata apply even to writ petitions filed under Article 226 of the Constitution of India. Once the petition filed under Article 226 of the Constitution is dismissed by the Court, a subsequent petition is barred. Similarly if a writ petition filed by a party under Article 226 is considered on 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 in appeal or in other appropriate
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proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgement and again move the High Court under Article 226 or the Supreme Court under Article 32 on the same facts and for obtaining the same or similar orders or writs. It is in the interest of the public at large that finality should be attached to the binding decisions pronounced by courts of competent jurisdiction, and it is also in public interest that individuals should not be vexed twice over the same kind of litigations. If these two principles form the foundation of the general rule of res judicata they cannot be treated as irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under Article 226 or 32. If a petition is dismissed by court in limine without admitting it for final hearing, a question may arise whether such a dismissal of a petition operates as res judicata. No hard and fast rule can be laid down, and whether or not such an order of dismissal would constitute a bar would depend upon the facts and circumstances of each case and upon the nature of the order. If the order is on the merits, it would be a bar, if the order shows that the dismissal was for the reason that the petitioner was guilty of laches or that he had an alternative remedy it would not. If the petition is dismissed in limine even without passing a speaking order in that behalf may strongly suggest that the court took the view that there was no substance in the petition at all, but in the absence of a speaking order it would not be easy to decide what factor weighed in the mind of the court and what makes it difficult and unsafe to hold that such a dismissal is a dismissal on merits and as such constitutes a bar of res judicata against a similar petition filed under Article 226 or 32. Principle of constructive res judicata also applies to writ petitions. This rule postulates that if a plea could have been taken by a party in a proceeding between him and his opponent, he would not be permitted to take that plea against the same cause of action, but basically even this view is founded on the same considerations of public policy, because if the doctrine of constructive res judicata is not applied to writ petitions, it would be open to the party to take one proceeding after another and urge new grounds every time, and that plainly is inconsistent with considerations of public policy. XIII. ULTRA VIRES DOCTRINE-Acting without jurisdiction and acting ultra vires have basically the same meaning that when we speak of vires, normally it is attributed to administrative action and jurisdiction refers to decisions having judicial flavour. A public authority may exceed his power while exercising it in an incorrect manner, or adopting an improper procedure or going wrong on a matter of substantial ultravires may relate to
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matters of law or fact or matters of discretion. Discretionary powers may be exercised for the purpose for which they were granted. Relevant considerations must be taken into account and irrelevant considerations disregarded. They must be exercised in good- faith and not arbitrarily and/or capriciously. An authority exercising his power without complying with those requirements is acting ultra vires. Court also may inquire into ulterior motives of the authority in order to ascertain the fact that he has acted outside the jurisdiction. Discretionary powers must be exercised by the person authorized by the statute in a fair manner and the person so authorized must not act under dictation. A person vested with that power must exercise it properly and not allowed to surrender their power to any authority. Courts have generally experienced some difficulty in distinguishing reviewable judicial jurisdictional matters and unreviewable errors committed within its jurisdiction. The error of judgement and usurpation of power being due to the fact that the error is reversible by an appellate court, and therefore not voidable, but the latter is an absolute nullity. Distinction between the above two errors is so cardinal that one renders the decision nullity and the other leaves the validity intact. XIV. RIGHT TO HEARING-Generally right to hearing is a statutory obligation, when the statute has provided so. But there will be occasions where right to hearing may be held to be an essential requirement, when ultimately the result of the decision making process may cause civil consequences. But there are occasions where the right to hearing may be denied depending upon the circumstances of each case and also the order to be passed by the authority concerned. Right to oral hearing does not in all cases confer a right to be personally present when his case is conducted by representative. Oral hearing in some cases involves right to oral representation untrammeled by rules of evidence or right to produce or cross- examine witnesses. Right to give reasons is also part of principles of natural justice. As a general proposition, law does not presently require a general duty to give reasons not only for administrator but also for the citizen. Courts have not developed a preference for using the term fairness to that of natural justice and invariably the requirement of fairness in the decision making process, in the absence of equality and contrary internment in relevant statute. In this connection it is pertinent to point out that as already stated judicial review is a part of constitutional duty of writ courts.
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XV. Alternative remedy: Since the power conferred on the High Court under Article 226 of the Constitution to issue writs, orders and directions is a discretionary remedy and since the High Court has always the discretion to refuse to grant such a relief in certain circumstances, availability of an alternative remedy is one of such considerations which the High Court will take into account to refuse to exercise its jurisdiction. If the alternative statutory remedy is equally efficacious and effective, the High Court may not invoke and would relegate the party to pursue his alternative remedy. If the person aggrieved has a right to file an appeal or revision against an order impugned under the provisions of any statute the High Court will decline its jurisdiction under Article 226 of the Constitution of India. If the person can obtain other adequate and proper reliefs by filing a civil suit the High Court may refuse to entertain a Writ Petition. XVI. Parties to petition: Persons who will be adversely affected by an order of the Court in a Writ Petition should be made parties to the petition. There is a distinction between a necessary party and a proper party. A necessary party is one whose presence is indispensable to the Constitution of the Writ, against whom the relief is sought and without whom no order can be passed. A proper party is one in whose absence an effective order can be passed but whose presence is necessary for a complete and final decision on the questions involved in the proceeding. The High Court will not hear and grant relief to a petitioner who has failed to implead the necessary parties in a writ petition. The Court can also suo motto direct the petitioner to implead any person as a party to the petition in order to adjudicate the points involved in the writ petition effectively and completely. The general principle is that all persons who are likely to be affected by the issue of a writ have been made parties to the writ petition. XVII. Pleadings:
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The whole object of pleadings is to bring the parties to definite issues and to avoid delay and to prevent surprise at the hearing. A party is entitled to know the case of the opponent so that he can meet it. In other words the sole object of pleadings is to ascertain the real disputes between the parties. A petition under Article 226 of the Constitution must be concise and to the point. For example, when malafides is alleged the pleadings should be specific and should give all the details of the malafides alleged and the person against whom the malafide is alleged should be added as a party to the petition. If the names and addresses of those persons who will be affected by the issue of a writ is not known to the petitioner and their number is numerous, the petitioner can implead one person in a representative capacity by the leave of the court and seek publication of the leave of the court and seek publication of the notice in a daily newspaper. XVIII. Relevant Documents should accompany the Writ Petition. The true copies of all the impugned orders sought to be challenged should be produced along with the writ petition. The true copies of the documents relied on by the petitioner in support of his case also should be produced along with the writ petition. When the copy of the impugned order is not produced in the writ petition the same is liable to be dismissed on that sole ground. XIX. Limitation The provisions of the Indian Limitation Act are not applicable to writ proceedings. But it is well settled that a person who is approaching the High Court invoking its extra ordinary jurisdiction under Article 226 of the Constitution is expected to approach the court as expeditiously as possible. Inordinate delay and laches in approaching the High Court will entail the dismissal of the writ petition by the High Court. XX. Applicability of C.P.C.: In view of the explanation added to Section 141 of the Code of Civil Procedure by the C.P.C. Amendment Act 1976 the proceeding under Article 226 of the Constitution of India are excluded from the procedure rules laid down in the C.P.C. in regard to suits. But however our High Court has held that even though Order 47 Rule (1) of the C.P.C. may not apply to writ
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proceedings, the High Court has inherent power to review its own orders under Article 226 of the Constitution of India.

CONCLUSION
Uncontrolled discretion by administrative authority may lead to illegal interference with the rights of citizens. However, discretion is not open to objection, when the circumstances and the grounds are stated or the decision lays down a policy of discretion or if there are adequate procedural safe guards against possible abuse of discretion. Uncontrolled and unguided discretion is liable to be struck down as infringing Article 19 or Article 14 of the Constitution of India. Power of Judicial Review is conferred on the High Courts under Article 226 of the Constitution of India and on the Supreme Court under Article 32 of the Constitution of India. Article 226 empowers the High Court to issue directions, orders or writs, in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them in enforcement of fundamental right or other statutory rights. The High Court may exercise the power vested in it under Article 226 of the Constitution of India for two purposes viz., (1) for enforcement of fundamental rights and (2) for any other purpose. The power of the High Court under Article 226 are much wider than the power conferred on the Supreme Court under article 32 of the Constitution of India. The right of a citizen to move the Supreme Court under Article 32 of the Constitution is for the issue of writs, directions or orders for the enforcement of the rights conferred on a citizen under Part III of the Constitution which deals with fundamental rights. The expression for any other purpose, contained in Article 226 of the Constitution contemplate the issue of writs, orders and directions for purposes other than enforcement of fundamental rights. The correct interpretation of the above words means for the enforcement of any legal right and the performance of any legal duty. The five writs specifically mentioned in article 226 are known in English law as prerogative writs, for they had originated in the kings prerogative power of superintendence over the due observance of law by his officers and tribunals. The prerogative writs are extraordinary remedies intended to be
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applied in exceptional cases in which ordinary legal remedies are not adequate. Although the prerogative writs have been borrowed from English law,in view of the expressed provisions in the constitution we need not now look back to early history. What is necessary is to keep the broad and the fundamental principles that regulate the exercise of jurisdiction. These writ provisions are of immense importance in view of the public law remedy and safeguarding the fundamental rights of the citizens.

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BIBLIOGRAPHY

1. Judicial Review and Fundamental Rights, S.N. Ray, 1974, Eastern Law House 2. Judicial Review: Legal Limits of Official Power, C.T. Emery, B.B. Smythe, 1986, Sweet and Maxwell. 3. Judicial Review in India, V.L. Dudeja, 1988, Radiant Publishers. 4. Limited Government and Judicial Review, D.D. Basu, 1972, Sarkar 5. http://indiankanoon.org/doc/237570/ 6. Writ remedies: with a special chapter on rights & public interest litigation By Bhagabati Prosad Banerjee

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INDEX 1. INTRODUCTION 2. ORIGIN OF WRIT 3. WRIT OF CERTIORI 4. WRIT OF PROHIBITION 5. WRIT OF MANDAMUS 6. WRIT OF QUO WARRANTO 7. WRIT OF HABEAS CORPUS 8. ARTICLE 32-AN INSIGHT 9. ARTICLE 226-AN INSIGHT 10. IMPLIED CONCEPTS IN WRIT JURISDICTION 11. CONCLUSION 12. BIBLIOGRAPHY

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CHANAKYA NATIONAL LAW UNIVERSITY,PATNA

WRIT JURISDICTION

Submitted to: Mr. Puspendra Pandey


(Faculty for Legal theory)

Submitted by:Girijapati Kaushal ROLL NO. 331 1st Semester CNLU,Patna

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ACKNOWLEDGEMENT First of all we want to thank GOD for successfully completing this project Then we want to give my sincere thanks to our respected contract faculty, Mr. Puspendra Pandey, who has guided us all the way in completing this project. Then we would like to give thanks to our librarians who have helped us all the way in searching through the source materials which help us lot in completing the project. The list couldnt be completed without thanking all our friends who have encouraged me all the way in completing the project.

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RESEARCH METHODOLOGY
Aims and Objectives:
The aim of the project is to present a detailed study of writ jurisdiction through decisions, statutes, amendments, suggestions and different writings and articles.

Scope and Limitations:


Though this is an immense project and pages can be written over the topic but because of certain restrictions and limitations I was not able to deal with the topic in great detail.

Sources of Data:
The following secondary sources of data have been used in the project1. Articles 2. Books 3. Websites

Method of Writing:
The method of writing followed in the course of this research paper is primarily analytical.

Mode of Citation:The researcher has followed a uniform mode of citation throughout


the course of this research paper.

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