INTRODUCTION

It is true that a declaration of fundamental rights is meaningless unless there is effective machinery
for the enforcement of the rights.
It is remedy which makes the right real if there is no remedy there is no right at all. It was, therefore
in the fitness of the things that our constitution makers having incorporated a long list of
fundamental rights have also provided for an effective remedy for the enforcement of these right
under Article 32 of the constitution. Article 32 is itself a fundamental right.
Article 226 also empowers all the High Courts to issue the writs for the enforcement of
fundamental rights.
Article 32 (1) guarantees the right to move the supreme court by appropriate proceedings for the
enforcement of the fundamental rights conferred by part III of the constitution.
Article 32 (2) confers power on the supreme court to 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.
Article 32 (3) under this clause parliament may by law empower any other court to exercise within
the local of its jurisdiction all or of the powers exercisable by the supreme court under clause (2)
Article 32 (4) says that the right guaranteed by Article 32 shall not be suspended except 1 as otherwise
provided for the constitution.
Article 32 thus provides for an expeditious and inexpensively remedy for the protection of
fundamental rights from legislative and executive interference.

Writ Jurisdiction of the Supreme Court and the High Courts

The most significant of the Human Rights is the exclusive right to Constitutional remedies under
Articles 32 and 226 of the Constitution of India. Those persons whose rights have been violated have
right to directly approach the High Courts and the Supreme Court for judicial rectification, redressal of
grievances and enforcement of Fundamental Rights. In such a case the courts are empowered to issue
appropriate directions, orders or writs including writs in the nature of Habeas Corpus, Mandamus,
Prohibition, Quo-warranto, and Certiorari. By virtue of Article 32, the Supreme Court of India has
expanded the ambit of Judicial Review to include review of all those state measures, which either
violate the Fundamental Rights or violative of the Basic Structure of the Constitution. The power of
Judicial Review exercised by the Supreme Court is intended to keep every organ of the state within its
limits laid down by the Constitution and the laws. It is in exercise of the power of Judicial Review that,

1 Daryao v. State of U.P., A.I.R. 1950, SC 1457

1
the Supreme Court has developed the strategy of Public Interest Litigation. The right to move to the
Supreme Court to enforce Fundamental Rights is itself a Fundamental Right under Article 32 of the
Constitution of India. This remedial Fundamental Right has been described as the Cornerstone of the
Democratic Edifice as the protector and guarantor of the Fundamentals Rights. It has been described as
an integral part of the Basic Structure of the Constitution. Whenever, the legislative or the executive
decision result in a breach of Fundamental Right, the jurisdiction of the Supreme Court can be invoked.
Hence the validity of a law can be challenged under Article 32 if it involves a question of enforcement of
any Fundamental Rights. The Right to Constitutional remedy under Article 32 can be suspended as
provided under Articles 32(4), 358 and 359 during the period of promulgation emergency. Accordingly,
in case of violation of Fundamental Rights, the petitioner under Article 32 for enforcement of such right
cannot be moved during the period of emergency. However, as soon as the order ceases to be operative,
the infringement of rights made either by the legislative enactment or by executive action can be
challenged by a citizen in a court of law and the same may have to be tried on merits, non the basis that
the rights alleged to have been infringed were in operation even 235 during the pendency of the
presidential proclamation of emergency. If, at the expiration of the presidential order, the parliament
passes any legislation to protect the executive action taken during the pendency of the presidential order
and afford indemnity to the execution in that behalf, the validity and effect of such legislation
may have to be carefully scrutinized.
Under Article 226 of the Constitution of India, the High Courts have concurrent jurisdiction
with the Supreme Court in the matter granting relief in cases of violation of the Fundamental Rights,
though the High Courts exercise jurisdiction in case of any other rights also. The Supreme Court
observed that where the High Court dismissed a writ petition under Article 226 after hearing the matter
on merits, a subsequent petition in the Supreme Court under Article 32 on the same facts and for the
same relief filed by the same parties will be barred by the rule of Resjudicata. The
binding character of the judgment of the court of competent jurisdiction is in essence, a part of the rule
of law on which, the administration of justice is founded
Thus the judgment of the High Court under Article 226 passed after hearing the parties on merits must
bind the parties till set aside in the appeal as provided by the Constitution and cannot be permitted to be
avoided by a petition under Article 32. Article 226 contemplates that notwithstanding anything in Article
32, every High Court shall have power, throughout the territorial limits in relation to which it exercises
jurisdiction to issue to any person or authority including the appropriate cases, any government, within
those territories, direction, orders or writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo-
warranto and Certiorari or any of them for the enforcement of Fundamental Rights conferred by part-III
and for any other purpose. Hence, the jurisdiction of a High Court is not limited to the protection of
the Fundamental Rights but also of the other legal rights as is clear from the words any other purpose.
2
The concurrent jurisdiction conferred on High Courts under Article 226 does not imply that a person
who alleges the violation of Fundamental Rights must first approach the High Court, and he can
approach the Supreme Court
directly. This was held in the very first case Ramesh Thapper vs. State of Madras2
.
But in P.N. Kumar vs. Municipal Corporation of Delhi 3 the Supreme Court expressed the view that a
citizen should first go to the High Court and if not satisfied, he should approach the Supreme Court.
Innumerable instances of Human Rights violation were brought before the Supreme Court as well as the
High Courts. Supreme Court as the Apex Court devised new tools and innovative methods to give
effectiveredresal

2 A.I.R. 1950

3 1988 SCR (1) 732, 1987 SCC (4) 609

3
WRIT JURISDICTION OF SUPREME COURT

Article 32 (2) confers power on the supreme court to issue appropriate directions or orders or writs,
including writs in the nature ofHabeas corpus, Mandamus, Prohibition, Quo-warranto and
Certiorari for the enforcement of any of the rights conferred by part III of the constitution

THERE ARE MAINLY FIVE TYPES OF WRITS

1) 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 order for his release.

CASE LAW: 1 Kanu Sanyal v The District Magistrate, Darjeeling4

FACT: Kanu Sanyal was a top Communist leader. He was arrested and detained by the
Visakhapatnam police. A Habeas Corpus petition was filed praying for production of Kanu Sanyal
before the court. The Public Prosecutor argued that Habeas Corpus would be applicable, where the
person was detained illegally, and in the case of Kanu Sanyal it could not apply, because he was
legally detained

JUDGMENT: The court did not accept the states argument and ordered for the production of Kanu
Sanyal

4 AIR 1974 SC 510

4
2) 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.

In India Article 32 and 226 of the Constitution gives power to the Supreme Court and High Court to
issue writs in case of breach of Fundamental rights of any citizen by the state. By such writs the
Judiciary can control the administrative actions and prevent any kind of arbitrary use of power and
discretion.

A writ of mandamus or mandamus (which means "we command" in Latin), or sometimes mandate, is
the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel
a lower court or a government officer to perform mandatory or purely ministerial duties correctly". The
word "mandamus" appeared in a number of orders issued by the sovereigns who ruled England in the
live centuries following the Norman Conquest. These orders however were not concerned with the
grievances of the citizens. The first instance of mandamus being used for enforcing the fight of a private
citizen was in 1615 when it was issued to a mayor and corporation to restore a burgess to his office
unless they could show cause to the contrary. As no cause was shown, a peremptory order to restore him
to the office was issued.1 By the early eighteenth century, it was used to compel performance of a
variety of public duties which had been wrongly refused.2 Mandamus lies to enforce a public duty in the
performance of which the petitioner has a sufficient legal interest, but he must show that he has
demanded performance which has been refused.3 It is discretionary and will not be granted if there is an
alternative remedy equally beneficial, convenient and effective.

The project covers the judicial control of the administrative actions by way of mandamus in India and
the landmark judgments given by the apex Court in relation to it. It also elaborates the position of the
Doctrine inU.K.

5
Definition of Mandamus
Mandamus according to Black's law dictionary, Ninth Edition

"A writ issued by a court to compel performance of a particular act by lower court or a governmental
officer or body, to correct a prior action or failure to act."

Mandamus according to Wharton's Law Lexicon, 15th Edition, 2009

"A high prerogative writ of a most extensive remedial nature. In form it is a command issuing in the
King's name from the King's Bench Division of the High Court only, and addressed to any person,
corporation, or inferior court of judicature requiring them to do something therein specified, which
appertains to their office, and which the court holds to be consonant to right and justice. It is used
principally for public purposes, and to enforce performance of public duties. It enforces, however, some
private rights when they are withheld by public officers."

The order of mandamus is of a most extensive remedial nature, and is in form, a command issuing from
the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them
to do some particular thing therein specified which appertains to his or their office and is in nature of a
public duty. Mandamus is not a writ of right, it is not consequently granted of course, but only at the
discretion of the court to whom the application for it is made; and this discretion is not exercised in
favour of the applicant, unless some just and useful purpose may be answered by the writ. A writ of
mandamus or remedy is pre -eminently a public law remedy and is not generally available against
private wrongs. It is used for enforcement of various rights of the public or to compel the public
statutory authorities to discharge their duties and to act within the bounds. It may be used to do justice
when there is wrongful exercise of power or a refusal to perform duties5.

Mandamus in Indian Law prior to the Constitution

Mandamus was introduced in India by the Letters Patent creating the Supreme Court in Calcutta in
1773. The Supreme Courts in the Presidency towns were empowered to issue the writ. In 1877, the
Specific Relief Act substituted an order in the nature of mandamus in the place of the writ of mandamus
for the purpose of "requiring any specific act to be done or forborne within the local limits of its
ordinary civil jurisdiction by any person holding a public office.6

Under the Specific Relief Act, 1963, which replaced the earlier Act, this provision has been omitted.
This omission must have been because such a provision under the Specific Relief Act became redundant
since the Constitution of India contains a similar and more efficacious provision for the enforcement of
6
public duties. The Constitution empowered all High Courts to issue directions, orders or writs including
writs in the nature of mandamus for the enforcement of any of the rights conferred by Part III and for
any other purpose.7 The Supreme Court can also issue mandamus for the enforcement of fundamental
rights.8

Framework of law in relation to mandamus

The Supreme Court has the power to issue writs under the Constitution of India, art. 329. The Supreme
Court has the power to issue directions or orders or writs, including writs in the nature of habeas corpus,
mandamus, certiorari, prohibition and quo warranto, whichever may be appropriate for the enforcement
of any right conferred by this part. It is an important part of the constitution. Art. 32 guarantee to every
person the right to move the Supreme Court directly for enforcement of fundamental rights. It provides
an inexpensive and expeditious remedy. In Ambedkar's memorable words: 'If I was asked to name any
particular Article in the Constitution as the most important - an Article without which
this Constitution would be a nullity- I could not refer to any other Article except this one. It is the very
soul of the Constitution and the very heart of it'13. This provision states that there must be a clear breach
of fundamental right not involving disputed questions of fact. It also states that government policy may
not be enforced by writ under the article. With regard to mandamus, art. 32 states that it may be issued
where a fundamental right is infringed by a statute. It may be a statutory order or an executive order.
However, according to some decisions it is discretionary10. The aforesaid provision also mentions
continuing mandamus where a mere issue of mandamus would be futile against a public agency guilty
of continuous inertia and thus continuing mandamus' may be issued. This continuous mandamus has
become the most commonly issued mandamus. Although the framework of law clearly states where a
mandamus may be issued, the courts have not found it easy in many cases whether to issue a mandamus
and it has become an important question of law.

Interpretation of Public right and mandamus

Mandamus lies against authorities whose duty is to perform certain acts and they have failed to do so.
Under following circumstances mandamus can be issued :

(i) The applicant must have a legal right to the performance of a legal duty11. It will not issue where to
do or not to do an act is left to the discretion of the authority12. It was refused where the legal duty
arose from an agreement which was in dispute13. The duty to be enforced by a writ mandamus could
arise by a provision of the Constitution14 or of a statute15 or of the common law16.

(ii) The legal duty must be of a public nature. In The Praga Tools Corporation v. C.V. Imanual, A.l.R.
7
1969 S.C. 1306 and Sohanlal v. Union of India, A.I.R. 1957 S.C. 529: (1957) S.C.R. 738 the Supreme
Court stated that mandamus might under certain circumstances lie against a private individual if it is
established that he has colluded with a public authority.

It will not issue against a private individual to enforce a private right such as a contract17.Even though
mandamus does not lie to enforce a contract inter partes, it will lie where the petitioner's contractual
right with a third party is interfered with by the State18. Mandamus will not issue to enforce
departmental manuals or instructions not having any statutory force which do not give rise to any legal
right in favour of the petitioner as in the cases of Raman & Ramanv. State of Madras 5& State of Assam
v. Ajit Kumar6.
However if the authority were under law obliged to exercise discretion, mandamus would lie to exercise
it in one way or the other. Mandamus can be issued to compel an income-tax officer to carry out the
instructions issued by income-tax appellate tribunal exercising its appellate power. Again it can be
issued to a municipality to discharge its statutory duty.
There are however exceptions to this rule. Where there is no statutory provision, executive instructions
fill in the gap and are capable of conferring rights on the citizen imposing obligations on the authorities.
In appropriate cases the courts may even compel the performance of such a duty. Mandamus is not
available where the order upon which the alleged right of the petitioner is founded is itself ultra vires.
Similarly it was held that the grant of dearness allowance at a particular rate is a matter of grace and not
a matter of right and hence mandamus cannot issue to compel the Government to pay dearness
allowance at a particular rate. Article 320 (3) of the Constitution which provides that before a
government servant is dismissed, the Union Public Service Commission should be consulted, does not
confer any right on a public servant and hence failure to consult the Public Service Commission does
not entitle the public servant to get mandamus for compelling the government to consult the
Commission.

Where provisions are merely directory, non-compliance with them does not render an act invalid and
hence no mandamus issues.
(iii) The right sought to be enforced must be subsisting on the date of the petition. If the interest of the
petitioner has been lawfully terminated before that date, he is not entitled to the writ.
(iv) As a general rule, mandamus is not issued in anticipation of injury. There are exceptions to this rule.
Anybody who is likely to be affected by the order of a public officer is entitled to bring an application
5 AIR 1959 SC 694

6 AIR 1965 SC1196

8
for mandamus if the officer acts in contravention of his statutory duty. Thus an intending bidder at an
auction is entitled to apply if the authority holding the auction acts contrary to the statute under which
the auction is held or fails to perform his statutory duties in connection with the auction. A person
against whom an illegal or unconstitutional order is made is entitled to apply to the court for redress
even before such order is actually enforced against him or even before something to his detriment is
done in pursuance of the order. For, the issue of such order constitutes an immediate encroachment on
his rights and he can refuse to comply with it only at his peril.
Against whom Mandamus will not issue
In England, mandamus does not lie upon the Crown. In India, it will not lie upon the President and the
Governor of a State in their personal capacities. However, the Constitution expressly provides that
appropriate proceedings may be brought against the Government of India and the Government of a
State. Further the Constitution empowers the courts "to issue to any person or authority, including in
appropriate cases any Government" any of the writs mentioned there in. Mandamus is therefore issued
against the government.
No mandamus will lie against an officer or member of parliament or an officer or member of the
legislature of a State In whom powers are vested by or under the Constitution for regulating procedure
or the conduct of business or for maintaining order in Parliament or the State legislature. Mandamus will
not issue to a legislature to forbid it from passing legislation repugnant to the fundamental rights.
Mandamus was issued to a municipality to forbid collection of a tax ultra vires the Municipalities Act,to
a University directing it to forbear from giving effect to an order made in violation of its own
rules. Article 329 of the Constitution precludes any law courts from entertaining electoral matters such
as the validity any law relating to the delimitation of constituencies or the allotment of seats to such
constituencies, made or purporting to beside under article 327 or article 328 and provides that no
election to either House of Parliament or to the House or either House of the legislature of a State shall
be questioned except by an election petition presented as provided by Parliament. Election includes
everything from the issue of the notification to the announcement of the result. It is not therefore
possible to obtain mandamus against officials conducting the various stages of an election, ft was
refused against a returning officer who rejected a nomination paper. This ban however applies only in
respect of elections to Parliament and State legislatures. Mandamus was issued upon the Deputy
Commissioner compelling him to hold municipal elections within a month and a half.
Mandamus lies to secure the performance of a public duty. If the petitioner has sufficient legal interest in
the performance it will issue even if the body against which it is claimed is not a statutory body. Thus it
was issued against the Sanskrit Council; which was constituted by a resolution of the state government
to. compel it to hold the examination and publish the results. However, it will not lie to secure
performance by a company of a duty towards its employees which is not of a public nature.
9
Alternative Remedy: A Bar to Mandamus
Mandamus is not refused on the ground that there is an adequate alternate remedy where the petitioner
complains that his fundamental right is infringed. The courts are duty bound to protect the fundamental
rights and therefore mandamus is issued. It is only when mandamus is issued "for any other purpose"
that the existence of an alternate remedy bars its issuance.Mandamus will not, however, be refused when
ordinary civil proceedings or administrative appeals or revision do not provide an equally effective and
convenient remedy. Thus if the alternative remedy imposes a heavy financial burden on the petitioner, it
will not be regarded as a ground for refusing mandamus.

Demand and refusal

For the issue of mandamus against an administrative authority the affected individual must demand
justice and only on refusal he has right to approach the Court. In S.I. Syndicate v. Union of India, the
Supreme Court has adopted the following statement of law in this regard. :

"As a general rule the orders would not be granted unless the party complained of has known what it
was he was required to do, so that he had the means of considering whether or not he should comply,
and it must be shown by evidence that there was a distinct demand of that which the party seeking the
mandamus desires to enforce, and that the demand was met by a refusal."

Thus, a party seeking mandamus must show that the demand justice from the authority concerned by
performing his duty and that the demand was refused. In S.I.Syndicate the court refused to grant
mandamus as there was no such demand or refusal. Where a civil servant approached the court for
mandamus against wrongful denial of promotion, he was denied the relief because of his failure to make
representation to the government against injustice. The demand for justice is not a matter of form but a
matter of substance and it is necessary that a "proper and sufficient matter has to be made". The demand
must be made to the proper authority and not to an authority which is not in a position to perform its
duty in manner demanded. It is suggested that the court should not fossilize this rule into something
rigid and inflexible but keep it as flexible. As Wade suggests, "these formalities are usually fulfilled by
the conduct of the parties prior to the application, and refusal to perform the duty is readily from
conduct". Demand may also not be necessary "where it is obvious that the respondent would not comply
with it and therefore it would be but an ideal formality."

5
CASE LAW: Sharif Ahmad v. H.T.A Meerut (AIR 1978 SC209)

10
FACT: In this case, the Respondent/public Authority did not oblige the orders of the Tribunal. The
petitioner approached the Supreme Court for the enforcement of the orders of the Tribunal. The
Supreme Court gave the writ of Mandamus ordering the Respondent/public Authority to obey the
orders of the Tribunal.
the writ of Mandamus can be issued against the public Authority, who neglected its public duty,
and did unconstitutional acts.

6
Sales Tax Officer v. Kanhaiyalal (AIR 1959 SC135)

7
FACT: Ii this case, the S.T.O had collected the tax illegally from the petitioner who approached the
Supreme Court. The Supreme Court issued the writ of Mandamus to the S.T.O to refund the tax
illegally collected to the petitioner.

5
(AIR 1978 SC
6
209 (AIR
1959 SC 135

11
3) THE WRIT OF QUO-WARRANTO: The word Quo warranto literally means BY WHAT
WARRANT? , BY WHAT AUTHORITY 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
10
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.

4) THE WRIT OF PROHIBITION: The writ of prohibition means to forbid or to stop and it is
popularly known as STAY ORDER. The writ of prohibition is based upon the principle:
prevention is better than cure. This writ is issued when a lower court or a body tries to transgress
the limit 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 proceeding 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, prohibition the latter to continue proceeding 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.

10
Constitutional law By Prof. M.P.JAIN & By Dr . J.N .PANDEY

Constitutional law I project

12
5) THE WRIT OF CERTIORARI: Literally, certiorari means to be certified. The writ of certiorari
is issued by the Supreme Court to some inferior court or tribunal to transfer the matter to it or to
some other superior authority for proper consideration. The writ of certiorari can be issued by the
Supreme Court or any High court for quashing the order already passed by an inferior court. In other
words, while the prohibition is available at the earlier stage, certiorari is available during the
tendency of proceedings before a sub-ordinate court; certiorari can resort to only after the order or
decision has been announced. There are several conditions necessary for the issue of writ of
certiorari, which are as under:

a) There should be court, tribunal or an officer having legal authority to determine the question of
deciding fundamental rights with a duty to act judicially.

b) Such a court, tribunal or officer must have passed order acting without jurisdiction or in excess of
the judicial authority vested by law in such court, tribunal or law. The order could also be against the
principle of natural justice or it could contain an error of judgment in appreciating the fact of the
11
case.
The Supreme Court in Surya Dev Rai v. Ram Chander Rai & Ors . has explained the meaning, scope and
ambit of the writ of Certiorari. The relevant extracts are reproduced here in below;

Writ of Certiorari

According to Corpus Juris Secundum (Vol.14, page 121) certiorari is a writ issued from a superior court
to an inferior court or tribunal commanding the latter to send up the record of a particular case.

H.W.R. Wade & C.F. Forsyth define certiorari in these words :- "Certiorari is used to bring up into
the High Court the decision of some inferior tribunal or authority in order that it may be investigated. If
the decision does not pass the test, it is quashed that is to say, it is declared completely invalid, so that no
one need respect it.

The underlying policy is that all inferior courts and authorities have only limited jurisdiction or powers
and must be kept within their legal bounds. This is the concern of the Crown, for the sake of
orderly administration of justice, but it is a private complaint which sets the Crown in motion."

13
The learned authors go on to add that problem arose on exercising control over justices of the peace,
both in their judicial and their administrative functions as also the problem of controlling the special
statutory body which was addressed to by the Court of King's Bench. "The most useful instruments
which the Court found ready to hand were the prerogative writs. But not unnaturally the control
exercised was strictly legal, and no longer political. Certiorari would issue to call up the records of
justices of the peace and commissioners for examination in the King's Bench and for quashing if any
legal defect was found. At first there was much quashing for defects of form on the record, i.e. for error
on the face. Later, as the doctrine of ultra vires developed, that became the dominant principle of
control".

The nature and scope of the writ of certiorari and when can it issue was beautifully set out in a concise
passage, quoted hereafter, by Lord Chancellor Viscount Simon in Ryots of Garabandho and other
villages Vs. Zamindar of Parlakimedi and Anr 7. "The ancient writ of certiorari in England is an original
writ which may issue out of a superior Court requiring that the record of the proceedings in some cause
or matter pending before an inferior Court should be transmitted into the superior Court to be there dealt
with. The writ is so named because, in its original Latin form, it required that the King should "be
certified" of the proceedings to be investigated, and the object is to secure by the exercise of the
authority of a superior Court, that the jurisdiction of the inferior tribunal should be properly exercised.
This writ does not issue to correct purely executive acts, but, on the other hand, its application is not
narrowly limited to inferior "Courts" in the strictest sense. Broadly speaking, it may be said that if the
act done by the inferior body is a judicial act, as distinguished from being a ministerial act, certiorari
will lie. The remedy, in point of principle, is derived from the superintending authority which the
Sovereign's Superior Courts, and in particular the Court of King's Bench, possess and exercise over
inferior jurisdictions. This principle has been transplanted to other parts of the King's dominions, and
operates, within certain limits, in British India."

Article 226 of the Constitution of India preserves to the High Court power to issue writ of certiorari
amongst others. The principles on which the writ of certiorari is issued are well-settled. It would suffice
for our purpose to quote from the 7-Judge Bench decision of this Court in Hari Vishnu Kamath Vs.
Ahmad Ishaque and Ors8. The four propositions laid down therein were summarized by the Constitution

7AIR 1943

8 AIR 1955 (1) SCR 1104

14
Bench in The Custodian of Evacuee Property Bangalore Vs. Khan Saheb Abdul Shukoor etc. 9 (1961) 3
SCR 855 as under :-

"the High Court was not justified in looking into the order of December 2, 1952, as an appellate court,
though it would be justified in scrutinizing that order as if it was brought before it under Article 226 of
the Constitution for issue of a writ of certiorari. The limit of the jurisdiction of the High Court in issuing
writs of certiorari was considered by this Court in Hari Vishnu Kamath Vs. Ahmad Ishaque10 and the
following four propositions were laid down :-

"(1) Certiorari will be issued for correcting errors of jurisdiction;

(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its
undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or
violates the principles of natural justice;

(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction.
One consequence of this is that the court will not review findings of fact reached by the inferior court
or tribunal, even if they be erroneous.

(4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a
manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance
or disregard of the provisions of law. In other words, it is a patent error which can be corrected by
certiorari but not a mere wrong decision."

In the initial years the Supreme Court was not inclined to depart from the traditional role of certiorari
jurisdiction and consistent with the historical background felt itself bound by such procedural
technicalities as were well-known to the English judges. In later years the Supreme Court has relaxed
the procedural and technical rigours, yet the broad and fundamental principles governing the exercise of
jurisdiction have not been given a go-by.

9 AIR 1961 (3) SCR 855

10 AIR 1955 SC 433

15
In the exercise of certiorari jurisdiction the High Court proceeds on an assumption that a Court which
has jurisdiction over a subject- matter has the jurisdiction to decide wrongly as well as rightly. The High
Court would not, therefore, for the purpose of certiorari assign to itself the role of an Appellate Court
and step into re-appreciating or evaluating the evidence and substitute its own findings in place of those
arrived at by the inferior court.

In Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors. 11, the
parameters for the exercise of jurisdiction, calling upon the issuance of writ of certiorari where so set
out by the Constitution Bench :

"The Common law writ, now called the order of certiorari, which has also been adopted by our
Constitution, is not meant to take the place of an appeal where the Statute does not confer a right of
appeal. Its purpose is only to determine, on an examination of the record, whether the inferior tribunal
has exceeded its jurisdiction or has not proceeded in accordance with the essential requirements of the
law which it was meant to administer. Mere formal or technical errors, even though of law, will not be
sufficient to attract this extra-ordinary jurisdiction. Where the errors cannot be said to be errors of law
apparent on the face of the record, but they are merely errors in appreciation of documentary evidence or
affidavits, errors in drawing inferences or omission to draw inference or in other words errors which a
court sitting as a court of appeal only, could have examined and, if necessary, corrected and the appellate
authority under a statute in question has unlimited jurisdiction to examine and appreciate the evidence in
the exercise of its appellate or revisional jurisdiction and it has not been shown that in exercising its
powers the appellate authority disregarded any mandatory provisions of the law but what can be said at
the most was that it had disregarded certain executive instructions not having the force of law, there is
not case for the exercise of the jurisdiction under Article 226."

The Constitution Bench in T.C. Basappa Vs. T. Nagappa & Anr.12, held that certiorari may be and is
generally granted when a court has acted (i) without jurisdiction, or (ii) in excess of its jurisdiction. The
want of jurisdiction may arise from the nature of the subject-matter of the proceedings or from the
absence of some preliminary proceedings or the court itself may not have been legally constituted or
suffering from certain disability by reason of extraneous circumstances. Certiorari may also issue if the
court or tribunal though competent has acted in flagrant disregard of the rules or procedure or in
violation of the principles of natural justice where no particular procedure is prescribed. An error in the

11 AIR 1958 SCR 1240

12 AIR 1955 (1) SCR 250

16
decision or determination itself may also be amenable to a writ of certiorari subject to the following
factors being available if the error is manifest and apparent on the face of the proceedings such as when
it is based on clear ignorance or disregard of the provisions of law but a mere wrong decision is not
amenable to a writ of certiorari.

Any authority or body of persons constituted by law or having legal authority to adjudicate upon
questions affecting the rights of a subject and enjoined with a duty to act judicially or quasi-judicially is
amenable to the certiorari jurisdiction of the High Court. The proceedings of judicial courts subordinate
to High Court can be subjected to certiorari.

While dealing with the question whether the orders and the proceedings of subordinate Court are
amenable to certiorari writ jurisdiction of the High Court, we would be failing in our duty if we do not
make a reference to a larger Bench and a Constitution Bench decisions of this Court and clear a
confusion lest it should arise at some point of time. Naresh Shridhar Mirajkar & Ors. Vs. State of
Maharashra and Anr13 is a nine-Judges Bench decision of this Court. A learned judge of Bombay High
Court sitting on the Original Side passed an oral order restraining the Press from publishing certain
court proceedings. This order was sought to be impugned by filing a writ petition under Article 226 of
the Constitution before a Division Bench of the High Court which dismissed the writ petition on the
ground that the impugned order was a judicial order of the High Court and hence not amenable to a writ
under Article 226. The petitioner then moved this Court under Article 32 of the Constitution for
enforcement of his fundamental rights under Article 19(1)(a) and (g) of the Constitution. During the
course of majority judgment Chief Justice Gajendragadkar quoted the following passage from Halsbury
Laws Of England (Vol.11 pages 129, 130) from the foot- note :

"(.in the case of judgments of inferior courts of civil jurisdiction) it has been suggested that certiorari
might be granted to quash them for want of jurisdiction [Kemp v. Balne (1844), 1 Dow. & L. 885, at
p.887], inasmuch as an error did not lie upon that ground. But there appears to be no reported case in
which the judgment of an inferior Court of civil jurisdiction has been quashed on certiorari, either for
want of jurisdiction or on any other ground".

His Lordship then said :

"The ultimate proposition is set out in terms: "Certiorari does not lie to quash the judgments of inferior
Courts of civil jurisdiction".* These observations would indicate that in England the judicial

13 AIR 1966 SCR 144

17
orders passed by civil Courts of plenary jurisdiction in or in relation to matters brought before them are
not held to be amenable to the jurisdiction to issue writs of certiorari."

A perusal of the judgment shows that the above passage has been quoted "incidentally" and that too for
the purpose of finding authority for the proposition that a judge sitting on the Original Side of the High
Court cannot be called a court 'inferior or subordinate to High Court' so as to make his orders amenable
to writ jurisdiction of the High Court. Secondly, the abovesaid passage has been quoted but nowhere the
Court has laid down as law by way its own holding that a writ of certiorari by High Court cannot be
directed to Court subordinate to it. And lastly, the passage from Halsbury quoted in Naresh Shridhar
Mirajkar's case (supra) is from third edition of Halsbury Laws of England (Simond's Edition, 1955). The
law has undergone a change in England itself and this changed legal position has been noted in a
Constitution Bench decision of this Court in Rupa Ashok Hurra Vs. Ashok Hurra and Anr. (2002) 4 SCC
388. Justice SSM Quadri speaking for the Constitution Bench has quoted the following passage from
Halsbury's Laws of England, 4th Edn.(Reissue) Vol.1 (1) : "103. Historically, prohibition was a
writ whereby the royal courts of common law prohibited other courts from entertaining matters falling
within the exclusive jurisdiction of the common law courts; certiorari was issued to bring the record
of an inferior court in the King's Bench for review or to remove indictments and to public officers and
bodies, to order the performance of a public duty. All three were called prerogative writs."

"109. Certiorari lies to bring decisions of an inferior court, tribunal, public authority or any other body
of persons before the High Court for review so that the court may determine whether they should be
quashed, or to quash such decisions. The order of prohibition is an order issuing out of the High Court
and directed to an inferior court or tribunal or public authority which forbids that court or tribunal or
authority to act in excess of its jurisdiction or contrary to law. Both certiorari and prohibition are
employed for the control of inferior courts, tribunals and public authorities."

Naresh Shridhar Mirajkar's case was cited before the Constitution Bench in Rupa Ashok Hurra's case
and considered. It has been clearly held : (i) that it is a well-settled principle that the technicalities
associated with the prerogative writs in English law have no role to play under our constitutional
scheme; (ii) that a writ of certiorari to call for records and examine the same for passing appropriate

18
orders, is issued by superior court to an inferior court which certifies its records for examination; and
(iii) that a High Court cannot issue a writ to another High Court, nor can one Bench of a High Court
issue a writ to a different Bench of the High Court; much less can writ jurisdiction of a High Court be
invoked to seek issuance of a writ of certiorari to the Supreme Court. The High Courts are not
constituted as inferior courts in our constitutional scheme.

Thus, there is no manner of doubt that the orders and proceedings of a judicial court subordinate to High
Court are amenable to writ jurisdiction of High Court under Article 226 of the Constitution.

Authority in abundance is available for the proposition that an error apparent on face of record can be
corrected by certiorari. The broad working rule for determining what is a patent error or an error
apparent on the face of the record was well set out in Satyanarayan Laxminarayan Hegde and Ors. Vs.
Mallikarjun Bhavanappa Tirumale, (1960) 1 SCR 890. It was held that the alleged error should be self-
evident. An error which needs to be established by lengthy and complicated arguments or an error in a
long-drawn process of reasoning on points where there may conceivably be two opinions cannot be
called a patent error. In a writ of certiorari the High Court may quash the proceedings of the tribunal,
authority or court but may not substitute its own findings or directions in lieu of one given in the
proceedings forming the subject-matter of certiorari.

Certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court
would be justified in refusing the writ of certiorari if no failure of justice has been occasioned. In
exercising the certiorari jurisdiction the procedure ordinarily followed by the High Court is to command
the inferior court or tribunal to certify its record or proceedings to the High Court for its inspection so as
to enable the High Court to determine whether on the face of the record the inferior court has committed
any of the preceding errors occasioning failure of justice14.

14 Constitutional law By Prof . M.P .JAIN & By M.P. JAIN

19
LOCUS STANDI

WHO CAN APPLY? :-LOCUS STANDI

- the traditional rule is that the right to move the Supreme Court is only available to those whose
fundamental rights are infringed. The power vested in the Supreme Court can only be exercised for
the enforcement of fundamental rights. The writ under which the remedy is asked under Article 32
must be correlated to one of the fundamental rights sought to be enforced. The remedy must be
sought through appropriate proceeding.

DYNAMIC APPROACH UNDER LOCUS STANDI:

The above traditional rule of locus standi that a petition under Article 32 can only be filed by a
person whose fundamental right is infringed has now been considerably relaxed by the Supreme
Court in its recent rulings.
The court now permits 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 person who because of their poverty or socially or economically disadvantaged position
are unable to approach the court for relief.

20
A) CASE LAW: IN A.B.S.K SANGH (FLY) V. UNION OF INDIA15

FACT: It was held that the Akhil Bhartiya Soshil karmachari snagh (Railway) ,though an
unregistered Association could maintain a writ petition under Article 32 for the redressal of a
common grievance Access interest litigation & representative proceeding is the present constitutional
jurisprudence.
As a result of this broad view of locus standi permitting public interest litigation or social action
litigation Supreme Court has considerably widened the scope of Article 32 of the constitution.
The Supreme Court will now be ready to interfere under Article 32 wherever and whenever any
injustice is caused or being caused by the state action to the poor and helpless persons who cannot
approach the court.
16
B) CASE:BIHAR LEGAL SUPPORT SOCIETY .V. CHIEF JUSTICE OF INDIA
((1986) 4 SCC 767)
FACT: The court made it clear that the strategy of public interest litigation has been evolved by this
court with a view to bringing justice within easy reach of the poor & the disadvantaged sections of
the community.

15
AIR 1981 SC
16
298 (1986) 4

15

21
SCC 767

22
 17
C) CASE: IN PEOPLES UNION FOR DEMOCRATIC RIGHTS .V. UNION OF INDIA

FACT : It was held that the peoples union for Democratic Rights and LOCUS STANDI
To file a petition for enforcement of various labour law under which certain benefits are conferred on
the workers. The union brought this fact to the notice of the court through a letter
The court rejected the argument that such public interest litigation would create arrears of cases and
therefore they should not be encouraged.

BHAGWATI. J Declared No state had the right to tell its citizens that because a large number of
cases of the rich are pending in our courts we will not help the poor to come to the courts for seeking
justice until the staggering load of cases of people who can afford rich lawyers is disposed of.

18
D) CASE: BANDHU MUKTI MORCHA .V. UNION OF INDIA

FACT : An organisation dedicated to the cause of release of bonded labours informed the
supreme court through a letter that they conducted a survey of the stone quarries situated in
Faridabad District of the state of Haryana and found that there were a large number of labours
working in these stone quarries under in human and intolerable conditions and many of them were
bonded labours.
The petitioners prayed that a writ be issued for proper implementation of the various provisions of
the constitution and statutes with a view to ending the misery, suffering and helplessness of these
19
labours and release of bonded labourers. The court treated the letter as writ- petition.

17
AIR 1983 SC
18
339 AIR 1984
SC 803
Constitutional law By ,Prof .M.P.JAIN & By Dr .J.N .PANDEY
Constitutional law I project

23
 21
E) CASE: HUSSAINARA KHATOON V STATE OF BIHAR
FACT: The supreme court has held that speedy trial is an essential and integral part of the
fundamental right to life and liberty enshrined in art .21 . were kept in various jails for several years
without trialIn Bihar a number of under trial
prisoners
The court ordered that all such prisoners
whose names were submitted to the court should be released forthwith.Since speedy trial was held
to be a fundamental right guaranteed by Art, 21. The Supreme Court considered its constitutional
duty to enforce this right of the accused persons.

22
F) CASE: BANDHU MUKTI MORCHA .V. UNION OF INDIA

FACT: It has been held that the provisions conferring on the Supreme Court the power to enforce
fundamental rights in the widest possible terms show the anxiety of the constitution makers not to
allow any procedural technicalities to stand in the way of enforcement of fundamental rights. It is
not at all obligatory that an adversary procedure must be followed in proceedings under Article 32.
For the enforcement of fundamental rights. There is no such compulsion in clause (2) of Article 32
or in any other part of the constitution. Public interest litigation for the enforcement of fundamental
rights is very much included in Article 32.

20
Judicial activism of the
21
supreme court AIR 1979 SC
1369
22
AIR 1984 SC 802

24
 KANUBHAI BRAHMBHATT V STATE OF GUJRAT AIR 1987 SC 1159

FACT : In 1987 in Kanubhais case when a two beanch of the supreme court ruled that a petitioner
complaining of infraction of his fundamental right should approach the High court first rather than
supreme court in the first instance . The reason given for this view was that there was a huge backlog
of cases pending before the Supreme Court.
But in practice, it seems that the Kanubhais pronouncement has had no effect on the existing
practice and the writ petition continue to be filed in the supreme court under Article 32 without first
going to the High court under Article 226.
 CO
NC
LU
SIO
N
Article 32 of the constitution itself is the fundamental right under which aggrieved person
can directly approach to the supreme court against the state for the enforcement of his
fundamental right and without a delay supreme court passes writs, orders or directions to the
authority with which aggrieved person is getting immediate relief whose fundamental right
has been infringed by this authorities without a further delay. It is the most valuable right
guaranteed to the citizen against state. It is one of the basic features of the constitution. It
safeguards the peoples dignity, honour and sovereignty. THAT IS WHY? Article 32 is called
as a very heart of the Indian Constitution.
BIBLIOGRAPHY
References:

K.D. Gaur, The Indian Penal Code. 3rd Edition 2013 Universal Law publishing
Company
Pandey J.N, Central Law Agency, Constitutional law of India.
Basu, Durga Das (1981), shorter constitution of India
Rahulrai, Durga Das (1984),introduction to the constitution of India 10 th edition, South
Asia Books publication

Websites:
www.servant.unibe.ch/icl/in00000_.html
www.ask.com
https://indconlawphilp.
www.prsindia.org
www.scconline.com