Writ Jurisdiction of High Courts (Article 226) and Supreme Court (Article 32)

The power of the higher judiciary to issue writs is the most significant and potent tool for exercising judicial control over administrative action in India. Writs are formal written orders issued by a court, commanding a public authority to perform a specific act or to cease from performing an act. This power is derived directly from the Constitution of India and serves as the bedrock for enforcing the Rule of Law and protecting the fundamental rights of citizens.

The Constitution confers this extraordinary power on both the Supreme Court and the High Courts.

The Supreme Court has described Article 32 as the "heart and soul" of the Constitution. The power of judicial review exercised through the writ jurisdiction is part of the basic structure of the Constitution and cannot be taken away.

Types of Writs

The Constitution empowers the Supreme Court and High Courts to issue five specific types of writs, which are derived from English law. Each writ serves a different purpose and provides a specific remedy against a particular type of administrative excess.

Habeas Corpus

• Literal Meaning: "To have the body."

• Purpose: This is a writ used to secure the release of a person who has been unlawfully detained or imprisoned. It is a powerful safeguard against arbitrary detention and is considered a bulwark of individual liberty.

• How it works: The court issues the writ to the authority who is holding the person in custody (e.g., the police or prison authorities). It commands the authority to produce the detained person before the court and to explain the legal reason for their detention. If the court finds that the detention is illegal, it will order the immediate release of the person.

• Who can apply: The petition can be filed by the detained person themselves or by any other person on their behalf.

Mandamus

• Literal Meaning: "We command."

• Purpose: It is a judicial command issued to any public authority, corporation, or lower court, compelling it to perform a public or statutory duty that it has refused to perform.

• When it lies: It is issued when an authority has a mandatory legal duty to perform and has wrongfully refused to do so. It cannot be issued to compel the performance of a discretionary duty, but it can be issued to compel an authority to exercise its discretion when it has refused to do so at all.

• When it does not lie: It cannot be issued against a private individual or body, the President or a Governor, or to enforce a private contractual obligation.

Prohibition

• Nature: It is a preventive writ.

• Purpose: It is issued by a higher court to a lower court or a quasi-judicial tribunal to prevent it from exceeding its jurisdiction or from acting contrary to the principles of natural justice.

• When it is issued: It is issued while the proceedings are still pending before the lower court or tribunal. Its purpose is to stop the proceedings before an illegal order is passed. The famous maxim is that Prohibition "prohibits," while Certiorari "cures."

Certiorari

• Literal Meaning: "To be certified" or "to be informed."

• Nature: It is a curative writ.

• Purpose: It is issued by a higher court to a lower court or a quasi-judicial tribunal to quash (cancel) an order that has already been passed by it. It is used to correct jurisdictional errors and errors of law apparent on the face of the record.

• Grounds for issue: It can be issued when a subordinate body has:

  • Acted without jurisdiction or in excess of its jurisdiction.
  • Violated the principles of natural justice.
  • Committed an error of law apparent on the face of the record.

Quo Warranto

• Literal Meaning: "By what authority?" or "by what warrant?"

• Purpose: It is a writ used to challenge the legality of a person's claim to hold a substantive public office. The court inquires into the legality of the appointment and can oust the person from the office if their claim is found to be invalid.

• Conditions for issue:

  • The office must be a public office of a substantive character.
  • The office must be created by the Constitution or by a statute.
  • The person holding the office must not be legally qualified to hold it.

• Who can apply: Unlike other writs, this can be sought by any interested person, even if they are not personally aggrieved.

Habeas Corpus

The writ of Habeas Corpus is the most celebrated writ, revered as the ultimate protector of individual liberty against unlawful detention. Its primary object is not to punish the detainer but to secure the immediate release of the detainee.

Against illegal detention

The writ can be issued against both state authorities (like the police) and private individuals who are holding someone in custody. The court's inquiry is focused on one question: is the detention lawful?

Grounds for Issuance:

• Detention without Legal Authority: When a person is detained without any valid law authorizing their detention.

• Violation of Constitutional/Statutory Procedure: When the procedure for detention, as laid down in the law, has not been followed. For example, if a person is not produced before a magistrate within 24 hours of arrest as required by Article 22 of the Constitution.

• Detention under an Unconstitutional Law: If the law under which the person is detained is itself declared unconstitutional by the courts.

• Detention outside the jurisdiction of the detaining authority.

Grounds for Refusal:

• Lawful Detention: The writ will be refused if the court finds that the detention is in accordance with a valid law and procedure.

• Detention by a Competent Court: The writ will not be issued against the order of a court of competent jurisdiction. If a person has been imprisoned following a conviction in a criminal trial, the remedy is to appeal the conviction, not to file a habeas corpus petition.

• During an Emergency: The right to move the court for the enforcement of certain fundamental rights, including personal liberty, can be suspended during the proclamation of a National Emergency (though the scope for this has been severely restricted by the 44th Amendment Act, which protects Articles 20 and 21 even during an emergency).

Mandamus

The writ of Mandamus is a powerful command used to compel a public authority to do its duty. It is a tool to remedy administrative inaction and to ensure that public officials do not neglect their legal obligations.

Compelling performance of public duty

For a writ of Mandamus to be issued, several conditions must be met.

Grounds for Issuance:

1. Existence of a Public Duty: The duty to be enforced must be a mandatory public duty imposed on the authority by the Constitution, a statute, or some rule of common law. It cannot be a purely discretionary power.

2. Legal Right of the Petitioner: The person applying for the writ must have a clear legal right to the performance of that public duty.

3. Demand and Refusal: The petitioner must have demanded the performance of the duty from the authority, and the authority must have refused to perform it, either expressly or by its conduct.

4. Absence of an Alternative Remedy: Generally, the court will not issue Mandamus if there is another adequate and effective legal remedy available to the petitioner. However, this is a rule of discretion, not a rule of law, especially when a fundamental right is violated.

Grounds for Refusal:

• Against Private Individuals: It does not lie against a private person or a private company unless they are entrusted with a public duty.

• To Enforce Contractual Obligations: It cannot be used to enforce a purely contractual right against the government.

• Against the President or Governor: In the exercise of their official duties.

• Against a Legislature: It cannot be issued to compel a legislature to pass a law.

Prohibition

The writ of Prohibition is a preventive writ issued by a superior court to a subordinate judicial or quasi-judicial body. Its sole purpose is to keep inferior tribunals within the limits of their jurisdiction.

Preventing excess of jurisdiction by inferior courts/tribunals

Prohibition is issued to stop an ongoing proceeding before a final decision has been made.

Grounds for Issuance:

• Absence or Excess of Jurisdiction: When a tribunal is hearing a matter that is outside its statutory jurisdiction.

• Violation of Principles of Natural Justice: If the tribunal is acting in a biased manner or has denied a party a fair hearing.

• Acting under an Unconstitutional Law: If the law that grants jurisdiction to the tribunal is itself unconstitutional.

• Violation of a Fundamental Right.

The key thing to remember is that Prohibition is available only when the proceeding is pending. Once the tribunal has given its final decision, the writ of Prohibition cannot be issued. The proper remedy at that stage would be a writ of Certiorari.

Certiorari

The writ of Certiorari is a curative writ that allows a superior court to call for the records of a proceeding from a subordinate judicial or quasi-judicial body and, if it finds a legal flaw, to quash the decision.

Quashing of illegal administrative decisions

Initially, Certiorari was only available against judicial and quasi-judicial bodies. However, the Supreme Court has expanded its scope, and it is now available even against administrative authorities whose decisions affect the rights of individuals.

Grounds: Error apparent on face of record, violation of natural justice, jurisdictional error

The grounds for issuing a writ of Certiorari are well-established:

1. Jurisdictional Error: This is the most common ground. It includes:

   • Want of Jurisdiction: The authority had no power to hear the case at all.
   • Excess of Jurisdiction: The authority had jurisdiction to begin the inquiry but exceeded it during the course of the proceedings.
   • Abuse of Jurisdiction: The authority exercised its power for an improper purpose or in bad faith.

2. Violation of Principles of Natural Justice: If the authority did not give a fair hearing to the party affected or if the decision-maker was biased.

3. Error of Law Apparent on the Face of the Record: This is a more technical ground. It refers to a situation where there is a clear and manifest legal mistake in the order itself, which can be identified without a lengthy examination of the evidence. An error of fact, no matter how grave, is generally not a ground for Certiorari.

4. Fraud: If the order was obtained by fraud or collusion.

Quo Warranto

The writ of Quo Warranto is a unique remedy used to test the legal validity of a person's appointment to a public office.

Challenging the legality of holding a public office

This writ asks the holder of a public office to show the court "by what authority" they are holding that office. If the court finds the appointment to be contrary to law, it can declare the office to be vacant.

Grounds for Issuance:

For the writ to be issued, the following conditions must be satisfied:

1. The office must be a Public Office. It does not apply to private offices.

2. The office must be Substantive in character. It cannot be a temporary or terminable post.

3. The office must be created by Statute or by the Constitution.

4. The person holding the office (the respondent) must have violated a mandatory provision of the Constitution or a statute in their appointment. For example, they did not possess the minimum qualifications required for the post, or the appointing authority was not competent to make the appointment.

An important feature of this writ is that any member of the public can file the petition, regardless of whether their personal rights have been infringed. This is because the public has an interest in ensuring that public offices are not usurped by unqualified individuals.