In this article, Neitseizonuo Solo pursuing B.A. LL.B. (Hons.) from Hidayatullah National Law University, Raipur discusses the Different types of writs and writ jurisdiction of High Courts.

Introduction

A writ is an order by a court, directing lower courts to either do something or not do something. The concept of a writ was first developed by the Anglo-Saxons in England. The Monarch would issue letters which held orders and directions. Since then, writs have been incorporated by various countries into their legal systems. India has also done so, empowering the Supreme Court and the High Courts to issue such writs.

Prerogative writs under Indian law

Writs under Indian law are prerogative writs, a subset of writs, which are issued as an extraordinary remedy for aggrieved persons. The power to issue prerogative writs has been granted by the Constitution under Article 266 to the High Courts and to the Supreme Court under Article 32. It is a discretionary power which means that the High Court may or may not issue a writ.

Exhaustion of Alternative remedies before moving to High Court

A prerogative writ is also known as an extraordinary writ because it is only issued when alternative remedies have been exhausted. Although this restriction does not extend to the enforcement of Fundamental Rights. The court has laid down a precedent for the same.

This is known as the rule of exhaustion of remedies. The court has justified the same in the case of Union of India v. T.R. Varma AIR 1957 SC 882 and held that the rule of exhaustion exists so that a person is not allowed to circumvent existing statutory proceedings by approaching the High Court under Article 226

Further, the Supreme Court has provided in the cases of U.P. Jal Nigam v. Nareshwar Sahai Mathur 1 SCC 21 and Tigahur Paper Mills Co. Ltd v. State of Orissa 142 ITR 663, certain grounds on which the court may issue writs even if there are other remedies available. They are as follows:

1. When the remedies provided are not well suited to the situation at hand.
2. When the alternative remedy is inadequate to meet the needs of the case.
3. When there is an unreasonable amount of delay.
4. When there is complete lack of jurisdiction to try the case.

Jurisdiction of the High Court

The jurisdiction of the High Courts have also been provided in Article 226 of the Constitution, and they can be divided into two part:

Territorial

The High Courts have the right to issue writs within the territory of the state which the High Court is concerned with. Under Article 226(2) the court has been granted a certain degree of extra-territorial jurisdiction as well. High Courts are allowed to issue writs to any government, authority or person outside their territorial jurisdiction if the whole or part of the cause of action arises in their concerned state.

Subject matter

High Courts have been granted a large ambit to exercise this power. A High Court can issue writs not only for the enforcement of Fundamental Rights given in Part III of the Constitution but also non-Fundamental Rights for which the Constitution of India has used the words “for any other purpose” to widen the scope of High Court’s Jurisdiction.

Types of Writs

There are five types of writs which can be issued by the High Courts, but Article 226 has also given the power to issue other writs if they are of like nature to the five types of writs expressly spelled out in the Constitution. The types of writs are as follows:

Habeas Corpus

Habeas corpus is a Latin term which translate to “you have the body.” This type of writ is used in cases of illegal detainment and imprisonment. This writ allows the court to direct the detainer to appear before the court and give a valid reason for the imprisonment or detention. They must provide proof that it is legal, thus the onus of proof is on the detainer, and he must show proof of authority to do the same. If the court finds that the person has been illegally detained, it can order the detainee or prisoner to be set free.

Scope and Grounds

The court has greatly expanded the scope of this writ as it protects the right to life and liberty. In the case of Sheela Bharse v. State of Maharashtra AIR 1983 SC 378, the court expanded the scope of this writ by adjudging that it is not necessary that the detainee should be the petitioner. An interested party who has some connection with the case may also do so.

In the case of Kanu Sanyal v. District Magistrate AIR 1973, SC 2684 the court held that it is not necessary to produce before the court the detainee.

Prohibition

The writ of prohibition is issued by the High Court to judicial and quasi-judicial bodies, refraining the said bodies from continuing with any proceeding which is in excess of their jurisdictions. The writ of prohibition can be issued only when the case is continuing.

Scope and Grounds

In the case of Calcutta Discount Co. Ltd. v. ITO AIR 1961 SC372, the Supreme Court held that when a subordinate court or tribunal is shown decisively that they have acted in excess of their jurisdiction, the court will issue a writ of prohibition regardless of whether there exists an alternative remedy or not.

Mandamus

Mandamus is a Latin term meaning “to command,” and it is a writ which is issued to any person or authority who has been prescribed a duty by the law. Mandamus cannot be issued to a private person or company with private obligations. It also cannot be issued to enforce a private contract. This writ compels the authority to do this duty. Mandamus does not create a new duty instead it compels the performance of an already existing duty.

Scope and Grounds

Like the other prerogative writs, the court has taken on the burden of setting the parameters for the application of the writ of Mandamus.

In the case of, State of West Bengal v. Nuruddin(1998) 8 SCC 143, the Supreme Court held the writ of mandamus is a personal action where the respondent has not done the duty they were prescribed to do by law. The performance of the duty is the right of the applicant.

In Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V. R. R Udani and Ors. AIR 1989 SC 1607, the court held that it is not necessary that the duty is imposed by statute, mandamus may apply even in cases where the duty is imposed by common law or custom. The ambit of mandamus is very wide, and it must be available when an injustice has occurred. It should not be bogged down with too many technicalities.

Quo Warranto

Quo warranto is the Medieval Latin term for “by what warrant” and it is the writ which is issued directing subordinate authorities to show under what authority they are holding the office. The writ cannot be issued to a person working in a private field. This writ is issued to a person in an office, the legality of which is being questioned.

Scope and Grounds

In the case of Anand Bihari v. Ram Sahay AIR 1952 MB 31, the court held that the office in question must necessarily be one which is public.

In G. Venkateshwara Rao v. Government of Andhra Pradesh AIR 1966, SC 828, the court held that a private person may file an application for a writ of Quo Warranto. It is not required that this person is personally affected or interested in the case.

Certiorari

Certiorari means “to certify,” and it is a writ which is issued by the High Court to subordinate judicial or quasi-judicial bodies directing them to transfer the records of a particular case in order to ascertain whether the court has the jurisdiction to give the order or whether it is against the principles of natural justice. A writ of certiorari is corrective in nature.

Scope and Grounds

The scope of the writ of certiorari has been given in the case of Hari Vishnu Kamath v. Ahmad Ishaque AIR 1955 SC 233 as follows:

1. When there is an error of jurisdiction.
2. When the court has not given the proper time for both parties to be heard or has violated principles of natural justice.
3. This writ is supervisory in nature, and thus the High court cannot review the findings of the lower courts.
4. If the error is evident.

What are the different situations when writs can be issued?

Habeas Corpus

The writ of habeas corpus can be filed in the High Court when a person has been illegally detained by any public authority. For example, if a person has been detained for an unreasonable amount of time and without just cause, he may file a writ of habeas corpus.

Prohibition

A writ of prohibition can be filed when a court acts not within the limits of their jurisdiction but beyond its prescribed limitations. For example, if a trial is being heard without the court having the jurisdiction to do so, a writ of prohibition may be filed.

Mandamus

The writ of Mandamus can be filed in when a person does not do the duty that they are prescribed to do by a statute, common law or custom. For example, when police refuse to take any action against a criminal, for no reason, a writ of mandamus may be filed.

Quo Warranto

Writ of Quo Warranto can be applied for in situations where a person who has acquired a public office does not have the right to do so. For example, the writ can be filed if the person holding the post of Advocate General does not have a legitimate right to it.

Certiorari

Writ of certiorari can be applied in situations where a court, on passing an order, has gone beyond their jurisdiction in doing so. For example, when the court passes an order for a case which they had no power to do so, the aggrieved can apply for the writ of certiorari.

Difference between Certiorari and Prohibition

Both in case of certiorari and prohibition, the High Court passes an order directing judicial and quasi-judicial authorities when in excess of jurisdiction. The difference between the two is given below:

1. A writ of prohibition can only be issued when the case is pending before the court or tribunal.
2. A writ of certiorari is issued after the final order has been passed by the court or tribunal.

How to File a Writ in the Supreme Court?

For the purpose of filing a writ petition in the Supreme Court under Article 32, a format for the writ petition is provided by the Supreme Court which must be followed. The following documents need to be attached along with the writ petition:

1. An affidavit by the petitioner.
2. 1+5 copies of the writ petition.
3. It will also include a prescribed cover page, an index, annexures as may be required as well as a memo of appearance for which fees are to be paid.

The same procedure can be used to file a case in the High Court, the format for writ petition will be available on the concerned High Court’s website. For example, The format is available on the official website of M.P. High Court here.

Difference between Writ Jurisdiction of the High Court and the Supreme Court

The Constitution of India has given the power to issue writs to the Supreme Court in Article 32. This power is wider in case of High Courts as the Supreme Court has restricted powers when it comes to issuing writs. The difference is given below:

1. The Supreme Court can issue writs only in case there is a violation of Fundamental Rights.
2. The High Court has a wider scope to exercise this power. They can issue writs not only when there is a violation of Fundamental Rights but also in other cases.

Conclusion

The power to grant writs is one of the most important powers granted to the High Courts and the Supreme court. Writs protect the rights of the citizens by providing a faster remedy, thereby upholding the principles of democracy by providing quick justice. The importance of writs cannot be underestimated, and the courts must necessarily use this power judiciously as they have been given a very wide ambit to practice this power.

 

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