This article is written by Trisha Prasad. The article discusses the concept of Prerogative writs, its legal history, the existing laws in India and the application of the writs in the current Indian legal system. This article will also provide a global perspective on the application of writs through a comparative analysis of prerogative writs in two prominent jurisdictions, India and the United States of America.

Introduction

The Constitution of India guarantees certain fundamental rights and legal rights to citizens of India as well as other individuals. The Indian judiciary plays the important role of safeguarding these rights as guaranteed by the Constitution.

The Supreme Court serves as the Apex Court is entrusted with the duty of upholding the basic features of the Constitution. Along with providing individuals with fundamental rights, it is also important to give provisions for aggrieved individuals whose rights have been violated or infringed upon to seek remedies and reinstate their rights. The power entrusted with the Supreme Court and the High Courts to issue writs and orders to safeguard the rights of an individual is a part of the basic structure of the Constitution. The writ jurisdiction, as enshrined in the Indian Constitution also plays an important role in a democracy as it helps in the maintenance of balance of powers, rule of law and principles of natural justice.

What are prerogative writs

Writs are a cornerstone of common law legal systems, offering powerful remedies for upholding justice and protecting the rights of individuals. Under common law, writs are formal written orders of any authorised judicial body that generally directs the one receiving the order to act or refrain from acting in a certain manner. The English common law includes, among others, writs in the form of warrants, subpoenas and prerogative writs. The term “prerogative” refers to an exclusive right or privilege that is available to a certain class of individuals. In English law, prerogative or prerogative powers refer to the powers that were exclusively vested in the hands of the crown or delegated by the crown. Originally, prerogative writs were issued as written royal orders by the king or under the king’s seal by the king’s bench in England. The most important and commonly issued writs in the modern world, including Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo Warranto, fall under the category of prerogative writs. Each type of prerogative writ is distinct and is used for various purposes, from compelling public officials to fulfil their duties to stopping a judicial authority from overstepping their jurisdiction. The Indian legal system adopted the prerogative writs from the English common law, and the same are embodied in the Indian Constitution under Article 32, Article 139 and Article 226.

Legal history of prerogative writs

English Law

The issuing of writs by the King’s court in England was an exercise of its extra-judicial powers. Prerogative writs developed in mediaeval England due to the non-recognition of certain rights under common law, which strictly limited its recognition to rights that were expressly provided under English statutes that were in force, thereby limiting the ability of common law courts to give reliefs that were beyond the purview of well-known and prominent statutes that existed during that period of time. The writ of Habeas Corpus is the oldest writ and can be traced back to the Magna Carta.

While the writs were initially only restricted to serving the interest of the crown, after the 12th century, they became available to the public on the purchase or the payment of certain fees, thereby preserving royal supremacy while catering to certain needs of the public. This led to the usage of the term “prerogative writs”. Some of these writs were available to the public, and some were restricted to the crown alone.

English courts witnessed a decline in the application of prerogative writs during and after the Second World War. There was a steady decline in the application and development of general administrative law. This decline in administrative law was a threat that eventually resulted in the decline in application of prerogative writs with the looming threat of the writs being completely extinguished.This stagnation in the application of prerogative writs was said to be due to the inherent inability of most prerogative writs to cope up with the newer needs, sentiments and developments in society and law.

The application of prerogative writs transformed and developed in England after the concept of Judicial Review was introduced in 1977.

Indian Law

In the Indian context, despite being derived from the traditional English Law, prerogative writs or simply writs developed in a more progressive manner, with the judiciary playing an active role in its interpretation and development.

The introduction of writs in India can be traced back to the Regulating Act of 1773 as a result of which the Supreme Court was set up in Calcutta. The Supreme Court in Calcutta and, subsequently, the Courts that were set up in Bombay and Madras came to enjoy the same powers as the King’s Court in England. The Supreme Court was replaced by the High Courts in the three Presidency towns, which continued to exercise the powers to issue writs. Initially, the power to issue writs was not extended to any High Court other than the Presidency High Courts. The Presidency High Courts were conferred with the power to issue the writ of Mandamus in their respective jurisdictions under Section 45 of the Specific Relief Act, 1877 and Habeas Corpus under Section 491 of the Code of Criminal Procedure, 1898. The power to issue the writ of Habeas Corpus was later extended to other High Courts.

The evolution of prerogative writs to what we know today is a result of post-colonial or post-independence actions of incorporating writs in the Constitution and defining the scope of the said writs by way of judicial decisions.

Nature and scope of prerogative writs

Prerogative writs, by nature, are extraordinary legal remedies that are available for the purpose of both enforcing rights and holding public authorities and judicial bodies accountable for their actions or lack of action. Writs play a crucial role in ensuring that the rule of law is upheld and that the rights of individuals are secured. The general nature and scope of prerogative writs that form a part of most common law jurisdictions include the following:

• Extraordinary Remedies: These writs are considered extraordinary legal remedies as they are invoked only in specific cases and are not generally a part of all legal proceedings. Further, in the Indian scenario, especially under Article 226 of the Constitution, the court may consider whether other alternative remedies have been exhausted before issuing a writ.
• Judicial Review: Certain prerogative writs involve the exercise of the judiciary’s power of judicial review. Courts can use this as a means of reviewing certain actions of the government, administrative bodies or quasi-judicial bodies and ensure that they comply with the basic features of the Constitution.
• Limited Application: The issues that writs cover are limited to the board categories of jurisdictional issues, legality of power exercised or error in records and exercise of power by public authorities and judicial bodies.
• Protective Rights: Writs are in the nature of protective rights as they play the crucial role of protecting the fundamental rights and other legal rights of individuals who approach the court to redress the infringement or violation of their rights. It is, hence, an important power vested upon the Indian judiciary, the watchdogs of the Indian Constitution.
• Promotes Good Governance: Writs ensure transparency, accountability and adherence to legal principles as well as the protection of rights. This makes the judiciary an important contributor towards the promotion of good governance.
• Immediate relief: Unlike civil remedies that may require time to execute or may even require the initiation of execution proceedings, writs provide immediate relief. The courts that issue the writs can order the respondent party to immediately cease doing some activity or compel them to do some activity, as the case may be. Writs often require swift action from the respondent party.
• Flexibility and evolution: One distinct feature of prerogative writs, especially in India, is the fact that it is always evolving on the basis of judicial decisions, and there is a wide scope for interpretation on a case-to-case basis without disturbing the basic nature of the writs. This feature makes it easy for courts to adopt remedies that are sufficient to meet the changing needs of society.

Constitutional provisions surrounding prerogative writs

Article 32 of the Indian Constitution

Article 32 is a significant provision of the Constitution of India, guaranteeing the “right to Constitutional Remedies”. As emphasised by Dr B.R Ambedkar, Article 32 is the “heart and soul” of the Indian Constitution. This Article provides the Supreme Court with the power to enforce the fundamental rights that are available to both citizens as well as any other person under Part III of the Constitution titled, Fundamental Rights. Anyone who believes that their rights have been unduly violated or infringed upon can approach the Supreme Court with their grievances under this Article. The Supreme Court shall, in turn, pass any order, writ or direction as deems fit. The Article specifically lists out the 5 types of writs, ie. Habeas Corpus, Certiorari, Quo Warranto, Prohibition and Mandamus.

Additionally, the Article also provides the parliament with the power to permit any other court to exercise the same powers as the Supreme Court under this Article within its own local jurisdiction.

The Apex court in Skill Lotto Solutions Pvt. Ltd. v. Union of India (2020) observed that Article 32 is an integral part of the basic structure of the constitution and is the most potent weapon for the enforcement of fundamental rights. Article 32 is necessary to ensure the application of rule of law.

The Court also observed in Rashid Ahmad v. Municipal Board (1950) that the existence of alternative remedies will be considered while deciding a petition under Article 32 of the constitution. The powers of the court under Article 32, however, are not limited to issuing prerogative writs but also extends to making any other order or direction that is required for the protection of Fundamental Rights.

Article 226 of the Indian Constitution

Similar to the powers of the Supreme Court under Article 32, Article 226 of the Constitution provides the High Courts with the power to issue directions and writs to enforce the rights of any person. According to Clause 1 of Article 226, the Article can be used to enforce both fundamental rights as well as legal rights, making the scope of this Article wider than Article 32. This was specifically observed in the case of Bandhau Mukti Morcha v. Union of India (1983). The powers vested with the High Courts under Article 226 do not give the court appellate powers in those cases. In cases where a petition under Article 226 is filed, the High Courts only exercise its original jurisdiction. 

Further explaining the scope and application of Article 226, it was observed in the case of Bumrah Constructions Co. v. The State of Orissa (1961) that the High Court’s power under Article 226 cannot generally be invoked for civil remedies or liabilities arising out of torts or breach of contract. However, in cases where payment of money or enforcement of a contract is necessary in order to execute statutory duties, Article 226 can be invoked.

Which writs come under prerogative writs 

Habeas Corpus 

Meaning

The writ of Habeas Corpus can be literally translated to mean “to have a body”. Any person who is arrested or detained illegally or without following the due process of law can seek this relief. The competent court issues the writ of Habeas Corpus against the detaining authority, ordering them to present the arrested person before the court with the aim of examining whether the arrest was lawful or illegal. If it is proved before the court that the arrest was illegal, the detained person will be released. This writ is the most powerfully developed writ and is more prominent in application in India when compared to the other writs. Habeas Corpus is a writ that is essential for the protection of the personal liberty of an individual as well as to prevent unlawful detention. Article 22 of the Indian Constitution provides for the fundamental right of protection against arrest and detention in certain cases. Any violation of the provisions under this Article can be a ground for filing a Habeas Corpus petition. Some of the important rights and conditions provided under the Article includes:

• The right to be informed of grounds and circumstances of arrest;
• The right to consult and be defended by a lawyer;
• The right to be produced before the nearest magistrate within 24 hours of arrest. Any detention beyond the period of 24 hours must be authorised by the Magistrate.

Applicability

The petition for Habeas Corpus can be filed by the detained person or by a relative, friend or representative on their behalf, provided that the person filing the case on behalf of the detained person is not a total stranger to the issue of the detention. Additionally, the petition for Habeas Corpus can only be filed after a person has been arrested and not in case of anticipation of detention or any other situation before the concerned person is actually detained. An warrant under Section 97 of the Code of Criminal Procedure,1973 is based on a concept similar to the writ of Habeas Corpus. As per Section 97, if any magistrate of the level of a sub-divisional magistrate, district magistrate or magistrate of first class believes that some person is illegally or unlawfully confined, they may issue a search warrant, authorising the person to whom the warrant is issued (police) to search for the detained person and bring them before the concerned magistrate.

Case law

Kanu Sanyal v. District Magistrate (1973)

In this case, the appellant along with a few of his companions were arrested and brought before the sub-divisional magistrate in Siliaguri who ruled that the appellant must be detained in Darjeeling’s district jail. The detention in the district jail, Darjeeling was challenged by the Appellant as being unlawful.The appellant was then subsequently held in the central jail of Visakhapatnam on the orders of the Special Magistrate of Visakhapatnam. The Court however, did not issue the writ of Habeas Corpus as it found the subsequent detention to be valid in law. Additionally, the writ could not be determined in terms of the initial detention as it was filed after the initial detention period was over.In relation to the writ of Habeas Corpus, the Supreme Court observed that the writ is a procedural writ that deals with the machinery of justice. The purpose is to release any person who is illegally detained and restore their liberty. The production of the person’s body, as the meaning of the writ suggests, is ancillary to the release of the person who is illegally detained and is only a manner to help meet the purpose of Habeas Corpus. It was held that it is not necessary for the person to be presented before the court while the court determines whether the detention was illegal or not and orders the release.

ADM Jabalpur v. Shivkant Shukla (1976)

The case of ADM Jabalpur v. Shivkant Shukla (1976) was overruled in 2017 by a 9-judge Supreme Court bench in the case of K.S Puttaswamy v. Union of India (2017). However, the ADM Jabalpur case is an extremely important case in order to understand the legal evolution and application of Habeas Corpus in India.

The ADM Jabalpur case was referred to as the “Habeas Corpus case” and was decided by a 5-judge bench in relation to the Emergency of 1975. The wife of Shivkant Shukla filed the petition of Habeas Corpus in an attempt to have the latter released from detention as he was arrested and detained during the Emergency without trial. The Apex court, in this case, passed a controversial judgement stating that the right to life and personal liberty under Article 21 of the Constitution is also suspended along with other rights during the Emergency and can hence not be enforced. This judgement was heavily criticised and later overruled on the grounds of it being violative of the basic concept of fundamental rights and liberties. It is also cited as an example of the negative consequences of executive overreach.

Sunil Batra(II) v. Delhi Administration (1979)

The nature, locus standi and scope of a Habeas Corpus petition were expanded in this case. The petitioner was a convict under death sentence. He wrote a letter to the Supreme Court alleging that another prisoner was subject to torture by a jail warden with the aim of extracting money. This letter was converted into a Habeas Corpus petition.The court held that the writ of Habeas Corpus under both Article 32 and Article 226 is available to any prisoner against the actions of jail authorities that are not in accordance with the prisoner’s sentence or are violative of fundamental rights that are available to prisoners. The court also observed that one prisoner can file a Habeas Corpus petition on behalf of a co-prisoner and that a letter addressed to the court is sufficient to be regarded as a petition or application of habeas corpus.

Rudul Shah v. State of Bihar (1983)

The case of Rudul Shah is an important case that played a prominent role in determining the writ jurisdiction of the judiciary in India, and the concept of provision of monetary compensation on account of violation of fundamental rights was firmly established. The petitioner, in this case, was arrested and detained for a period longer than his actual sentence. After serving his sentence, he was acquitted by the court in 1968 but was released from prison only 14 years later in 1982. Rudul Shah filed a Habeas Corpus petition under Article 32 and also demanded compensation for his wrongful detention. While the petition was only presented after the petitioner was released from prison, the court awarded him the additional compensation and reliefs which he had sought while observing the detention to be illegal.

Certiorari

Meaning

The writ of Certiorari literally means “to be certified” and is a writ issued by a superior court, commanding the inferior court or any authority exercising quasi-judicial functions to transfer or make available records before itself. This writ is used to review the decision of a lower court and quash decisions of the lower court.

Applicability

Certiorari can only be issued against a lower court or any other authority that is exercising quasi-judicial functions. The writ cannot be issued against private individuals, companies, or authorities not exercising judicial or quasi-judicial functions or any private authority.

The writ of Certiorari can be issued in the following cases or conditions:

• Want or excess of jurisdiction: This condition comes into the picture when the concerned judicial or quasi-judicial authority acts beyond the jurisdiction or authority vested with it (excess of jurisdiction) or when the concerned authority completely lacks the jurisdiction or authority to act (want of jurisdiction).
• Violation of Principles of Natural Justice: The principles of Natural Justice are basic legal principles that are crucial in ensuring fairness and justice. A violation of the principles of natural justice during judicial proceedings will lead to a gross miscarriage of justice. In simple terms, the principles of natural justice include:
  • The hearing rule states that it is necessary for both parties to be given sufficient opportunity to be heard before a decision is made in relation to the dispute.
  • The bias rule which emphasises the impartiality of the judge or the expert who is making the decision in relation to the dispute.
  • The reasoned decision rule which emphasises on the necessity for the decision or judgement to be given on fair and reasonable grounds only.
• Violation of due process of law and procedure: Due process of law and the procedure established by law must be followed throughout a legal proceeding. It is essential for the procedural law to be followed in order to ensure that the rights of all involved parties are respected and not unduly violated. Violation of due process of law and procedure of law can also lead to a gross miscarriage of justice and prolonged legal battles.
• Error apparent on the face of the record: This condition refers to a situation when errors in a decision or judgement are apparent from a brief review of the official records of the case alone. These errors are generally very obvious and can be identified without the need to extensively review the merits of the case.

Case Law

Nagendra Nath Bora v. Commissioner of Hills (1958)

The Apex court had, in this case, observed that the writ of Certiorari issued by the Supreme Court or the High Courts is not in the court’s appellate jurisdiction but on account of the court’s supervisory jurisdiction. A petition for Certiorari cannot be filed instead of an appeal when the statute does not confer the right to appeal on the matter. While hearing an application for the writ of Certiorari, the court will only examine the jurisdictional aspect or any errors in the record rather than the merits of the case or the essential requirements of the law that is being applied.

Syed Yakoob v. K S Radhakrishnan (1963)

In this case, the scope of the writ of Certiorari was further interpreted and explained. The Supreme Court observed that Certiorari can be issued by a superior court for correcting errors of jurisdiction of an inferior court. Errors of jurisdiction can mean three things:

• Orders passed in excess of jurisdiction;
• Failure to exercise jurisdiction that is actually vested in the concerned inferior court or improper or illegal exercise of jurisdiction by the court;
• Orders passed by a court or tribunal in complete absence of jurisdiction.

The Apex court also observed that certiorari can be issued when the inferior court conducts the proceedings without adhering to the principles of natural justice. 

Radhey Shyam and Anr v. Chhabi Nath and Ors (2015)

In this more recent case, the Supreme Court held that the writ of Certiorari under Article 226 cannot be issued against judicial orders of civil courts. The court observed that the term “inferior court” in terms of Article 226 does not include judicial courts. In other words, it was explained that the High Courts have the power to issue Certiorari against any tribunal or authorities exercising judicial or quasi-judicial functions as long as it is not a judicial court.

Mandamus

Meaning

The writ of Mandamus literally means “we command”. This writ is issued by a superior court to a lower court or public authority, ordering them to fulfil their duty or do an act that is a part of their official duty. It is essentially a writ issued to public authorities in order to ensure the performance of public duties and secure private rights that have been withheld by the public authorities on account of failure to perform their duties.

Applicability

A petition for Mandamus can be filed by any person or group of persons against any public authority, court or authority discharging public functions. However, for the writ to be issued, it is essential to prove that the party had made a demand to the authority to fulfil a specific public duty and that the authority refused or failed to do so. The duty in question must be a mandatory statutory duty. The writ cannot be used to enforce a private duty or any duty that is not mandatory or statutorily imposed on the public authority. It is also important to note that Mandamus cannot be filed against any person for the enforcement of any private contractual liability. The following conditions must be fulfilled for a writ of mandamus to be issued:

• There must be a mandatory public duty.
• The person against whom the petition is being filed must have refused to or failed to perform the public duty.
• The person filing the petition must have the right to compel the other party to perform the concerned public duty or function.
• The person filing the petition must have made a demand for the performance of the public dirty which was refused.

Case Law

Sohanlal v. Union of India (1957)

The Supreme Court, in this case, reiterated that the writ of Mandamus, by nature, cannot be issued against a private party. The appellant in this case was a displaced person from Pakistan who was allotted a plot under the scheme’s devices by the government, provided that they met certain criteria. However, he was evicted from the allotted plot without notice. The purpose of Mandamus is to direct a public authority to do something that is in consonance with their public duty and in pertinence with the public office they hold.However, the Apex Court also stated that in cases where a private individual has merged with or acted in complete connection with a public authority, mandamus can be issued against them. There was no evidence to prove such collusion in this case and so, the writ of mandamus was not issued.

SP Gupta v. Union of India (1981)

This case, popularly referred to as the “first judges case”, dealt with various aspects in relation to the transfer and appointment of judges to the High courts. Among the various dimensions and provisions dealt with by the Apex Court in this matter, the court observed, by a majority, that the writ of Mandamus cannot be issued, directing the President to increase the number of permanent judges appointed to the High Court pursuant to the President’s powers under Article 216 of the Indian Constitution. The number of permanent judges required is a decision that must be taken by the president and cannot be determined by the judiciary.

CG Govindan v. State of Gujarat (1998)

This case was specifically in relation to the applicability of the writ of Mandamus against the Governor in relation to Article 229 of the Indian Constitution, which deals with the expenses of High Courts, including fixing the salaries of officers and judges of the court. Clause 2 of the Article provides powers to the Chief Justice of the High Courts to fix the salaries. However, this power is not absolute and is subject to the approval or rules laid down by the Governor. The Governor may either grant or withhold the approval while keeping the public interest in mind. It was observed that this procedure cannot be judicially circumvented or bypassed by issuing a writ of Mandamus directing the approval. Mandamus, in this case, can only be issued if there is a situation of constitutional breakdown which results in substantial public injury. An honest difference in opinion cannot be a ground for issuing Mandamus.

Quo Warranto

Meaning

The writ of Quo Warrant literally means “by what authority”. This writ questions the authority of a public official to hold an office. The court, by issuing this writ, orders any public official to vacate the office or post that they are not entitled to hold.

Applicability

This writ cannot be issued against any private office. The purpose of the writ is to prevent the usurpation or illegal occupation of public offices. Any individual who can prove the following can make an application for the writ of Quo Warranto:

• The office in question is a public office and is not in any manner private in nature.
• The person holding the office is not legally entitled to do so.

Case Law

Amarendra Chandra v.Narendra Kumar Basu (1952)

The petitioner in this case filed a petition for Quo Warranto before the Calcutta High Court, questioning the authority by which the respondents were holding the position of and acting as members of a school in Calcutta. The petition was, however, dismissed with costs as the court observed that the school in question was not a public authority or body and that the writ of Quo Warranto can only be used to question the authority under which a public office or position is held.

University of Mysore v. CD Govinda Rao (1963)

The nature of the writ of Quo Warranto and conditions precedent to issuing the writ were discussed in this case, which was an appeal filed against the decision of the Karnataka High Court. The Apex Court observed that Quo Warranto proceedings are simply a judicial enquiry conducted by the court where the concerned person holding a public office has to show the court the right or authority by which they are holding such public office. If the court is satisfied that the said person does not have the right to hold that public office, the writ of Quo Warranto will be issued, and the person will be removed from the office. The applicant or petitioner must prove that the office in question is a public office and that the person holding the office is doing so without any legal authority.

Purushottam Lal Sharma v. State of Rajasthan (1978)

The petitioner had filed a petition for the issue of the writ of Quo Warranto against the then Chief Minister, claiming that the respondent was not a member of the legislative assembly when he was elected and failed to become a member within 6 months of being instated as the Chief Minister. In the context of Quo Warranto, the Rajasthan High Court observed that the writ can be issued in the public interest if the petitioner further proves substantial injury or failure of justice caused due to the unauthorised holding of a public office or post. In the given case, the writ of Quo Warranto may be issued as the court was satisfied that the Chief Minister holding his office without being a member of the legislative assembly had caused substantial injury to the public as well as other members of the assembly. However, considering the fact that the petition was filed challenging the election, Quo Warranto cannot be invoked. In matters where elections are challenged, the procedure followed must be in accordance with the Representation of People’s Act, 1951, and a writ of Quo Warranto is not applicable.

Prohibition

Meaning

As suggested by the name, the writ of Prohibition means “to forbid or prohibit”. This writ, also referred to as a “stay order”, is issued by a superior court to stop a lower court from exercising jurisdiction or powers beyond the limits vested on the concerned lower court. As an effect of this writ, the ongoing proceedings before the lower court will stop. The underlying principle in this writ is “prevention is better than cure”, as it stops the court from continuing any proceedings that are beyond its jurisdiction.

Applicability

The writ of Prohibition can only be issued against any authority or body exercising judicial or quasi-judicial functions during the pendency of proceedings. In cases where the proceedings are completed, a writ of Certiorari will be issued and not a writ of Prohibition. Prohibition can be issued on the following grounds:

1. When the lower court does not exercise its jurisdiction correctly or exercises excess jurisdiction. This is referred to as “jurisdictional error”.
2. When the actions of the lower court are invalid in law or when, the lower court acts beyond the powers vested in it.
3. When the actions of the lower court and the procedure adopted by the court during the proceedings violate the principles of natural justice.
4. When the lower court acts in a manner that is unconstitutional.

Difference between Certiorari and Prohibition

S.no	Basis	CERTIORARI	PROHIBITION
1.	Stage when issued	Certiorari is issued after the lower court has pronounced or given its judgement.	Prohibition is issued during the pendency of any suit before a lower court.
2.	Objective	The writ of certiorari is issued with the intention of reviewing the decision of a lower court and quashing the decision.	The writ of prohibition is like a preventive measure adopted to prevent or prohibit a lower court from acting in a manner that is beyond its jurisdiction
3.	Type of measure	The writ of certiorari is a curative measure or corrective remedy.	The writ of prohibition is a preventive measure.
4.	Consequence	The writ, once issued, quashes any judgement rendered by the lower court.	The writ, once issued, prevents the lower court from rendering a judgement.

Case Law

S. Govind Menon v. Union of India (1967)

The Supreme Court further interpreted the scope of the writ of Prohibition in this case. It was held that the applicability of Prohibition is not only valid when there is excess of jurisdiction or no jurisdiction involved. It can also be issued in cases where there is a departure from the principles of natural justice. Prohibition cannot, however, be used to correct the procedure or decision of an inferior court on the merits of the case. An error of law that is within the jurisdiction of the inferior court cannot be corrected by way of this writ.

Brij Khandelwal v. Union of India (1974)

The Delhi High Court observed in this case that the writ of Prohibition is issued against actions of any tribunal to prevent it from exceeding its jurisdiction. It is an order issued to prevent an inferior court or tribunal from acting in excess of jurisdiction or when it does not have any jurisdiction. The writ cannot be issued against executive actions. This means that it cannot be issued against any public authority that is acting in a purely executive or administrative capacity.

Recent judicial pronouncements surrounding prerogative writs

Nimananda Biswal v. State of Odisha (2023)

In this case, a Habeas Corpus petition was brought before a division bench of the Odisha High Court to produce the petitioner’s missing daughter. The daughter of the petitioner was missing for a long period of time, subsequent to which the petitioner filed an FIR for the same. However, no effective steps were taken to find the missing girl.The court however dismissed the petition by stating that a Habeas Corpus petition cannot be filed to seek out a missing person. The High Court observed that there was no evidence of the young girl being illegally detained by anyone. The court emphasised that illegal detention is a prerequisite for Habeas Corpus. “Missing person” cases were held to be outside the ambit or scope of a Habeas Corpus petition.

Central Council for Research in Ayurvedic Sciences v. Bikartan Das (2023)

This case was a result of an appeal filed before the Supreme Court against a judgement passed by the Orissa High Court which allowed for and held that the respondent was entitled to the benefits of an extended superannuation age which was only available to AYUSH doctors working under the ministry of AYUSH. Such extension of the age of superannuation for only one set of professionals as against others who also performed similar duties. The High Court by way of an interim order also allowed the respondent to continue working for a period of 3 years after the date on which the respondent had to retire.The Apex Court deemed the High Court’s approach to be completely incorrect. The Supreme Court in this case, discussed the principles and essentials of the writ of Certiorari as issued by the High Courts. The court listed two cardinal principles of the writ:

• While issuing the writ, the High Court does not exercise its appellate power.
• The issue of this writ by the High Court under Article 226 is discretionary in nature.

The court additionally also pointed out three essentials that must be fulfilled for issuing the writ of Certiorari:

• The applicant must make out a clear case where the writ of Certiorari can be issued;
• The writ can be issued to correct the errors of jurisdiction;
• The writ can only be issued to correct errors that are manifest on the face of the proceedings. This means that it can only be issued to correct a patent error and not a wrong decision on the basis of facts or merits of the case.

Radha Krishnan Industries v. The State of Himachal Pradesh (2021)

The Supreme Court in this case, summarised the established position of law related to the applicability of Article 226 when alternate remedies exist. The following points were discussed:

• The power to issue writs by the High Court can be used for both the enforcement of fundamental rights as well as other legal rights.
• The power vested with the High Courts under Article 226 is discretionary in nature. The High Courts can refuse to entertain a writ petition on grounds like the existence of alternate remedies. In cases where the relevant statutes provide for a legal remedy, that statutory remedy must be exhausted before filing a writ petition. However, there are exceptions to the rule of alternate remedies:
  • When the petition is specifically for the enforcement of fundamental rights,
  • When principles of natural justice have been violated,
  • The proceedings were or are being carried out without any jurisdiction;
  • When legislation is being challenged as ultra vires.

Magadh Sugar & Energy Ltd. v. State of Bihar (2021)

The Supreme Court, in this case, crystalised the position of law in relation to the existence of alternate remedies as upheld in earlier cases. The Appellant in this case had invoked the writ jurisdiction of the High Court under Article 226, challenging the electricity duty that was imposed on the electricity that his Sugar Mill was supplying to the Bihar State Electricity Board. The High Court however, dismissed the petition on the grounds that the appellant had statutory remedies that could be invoked to address his grievances before filing a writ petition. The Apex Court however, remanded the case back to the High Court while also deciding that the issue was amenable to writ jurisdiction due to the presence of issues of law and not mere facts. The court also observed that the mere existence of an alternate remedy does not automatically bar the High Court from exercising its writ jurisdiction. The power is discretionary and subject to exceptions.

Global perspective on prerogative writs : India v. USA

Unlike the Constitutional provision in India, the power to issue writs is specifically provided to the Supreme Court and other courts in the US by the All Writs Act, 1789. This Federal Statute vests the courts with the power to issue all writs that are necessary and appropriate in relation to their respective jurisdictions, provided that it is in consonance with the principles of law and justice. Specific procedures and writs are governed under the Federal Rules of Civil Procedure 1938, applicable to district courts. Similar to the exercise of writ jurisdiction by the High Courts in India under Article 226, the courts in the US only issue writs in cases where other available remedies are exhausted or if there is no other alternative remedy. The prerogative writs available in the US are the same as in India but differ in applicability in certain cases.

• Habeas Corpus: The writ of habeas corpus in the US is specifically used to determine whether the state’s action of detaining a person (usually a defendant, accused or convicted person) is lawful or not. Unlike the flexibility provided in India, the writ of Habeas Corpus cannot be issued against a private person in the US. This writ often precedes a civil suit against a state agent like a jail warden who is responsible for detaining defendants.
• Quo Warranto: The writ of Quo Warranto in the US has a broader scope than in India. Along with removing from office any person who is holding such office without the authority to do so, the writ of Quo Warranto in the US is also used to challenge any unauthorised act of a public authority. 
• Certiorari: In the US, the writ of Certiorari can be understood as an alternative to an appeal. In some cases, the party may have the right to appeal. However, in cases where the right to appeal is not available, any party aggrieved by the decision of a lower court can file a petition for the writ of certiorari. If the court grants the writ, the case will be heard and reviewed. This writ is generally associated with the Supreme Court.
• Prohibition: Similar to the application of the writ of prohibition in India, a superior court, which is an appellate court in the case of the US, directs a lower court to cease a proposed action. The writ of prohibition is the counterpart of the writ of mandamus.
• Mandamus: The writ of Mandamus is issued by a court to an inferior government official, directing them to either fulfil their official duties or to correct any action that was a result of the abuse of any discretionary powers vested with them. The US Department of Justice has specified that the writ of mandamus is an extraordinary remedy that must only be issued in cases of emergency or public importance.

• Procedendo: The writ of procedendo, which is not expressly available in India, is an important writ in the US. The appellate or superior courts issue this writ, directing the lower court to proceed with the judgement of any ongoing proceedings.This writ merely directs the Court to arrive at a decision and to give its judgement. The appellate court that issues the writ of procedendo cannot instruct or direct the lower court on how it must decide the matter. Procedendo is usually issued in case of delays in rendering judgements or a refusal to deliver a judgement. 

Conclusion 

In conclusion, prerogative writs or simply writs, are one of the most important pillars of justice in common law countries. Originating from the English legal system, writs of the nature of Habeas Corpus, Mandamus, Certiorari, Quo Warranto and Prohibition have become integral parts of the Indian judicial system. These extraordinary remedies, incorporated under Article 32 and Article 226 of the Indian Constitution, are ever-evolving through judicial decisions to meet the changing requirements of justice in the country. Prerogative writs are indispensable in the process of defending the principles of the Indian Constitution.

Frequently Asked Questions (FAQs) 

Can a writ be issued against a private person?

A writ is generally considered a public remedy and is generally deemed to be applicable only against a public entity or authority discharging public functions. However, the writ of habeas corpus is a direct exception to this condition. Habeas corpus can be issued against a private person who has illegally or unlawfully detained another person. The writ petitions, especially those of Mandamus, have also been entertained against private entities that were discharging public functions despite being a private authority and not being conferred authority or duty by way of any statute or law. In general, writs cannot be issued to enforce any private liability arising out of contractual obligations or tortious actions.

What is the difference between the writ jurisdiction conferred by Article 32 and Article 226?

The primary difference between the power to issue writs by the Supreme Court under Article 32 and the High Courts under Article 226 is that under Article 32, writs and directions can be given for the enforcement of fundamental rights only, while Article 226 allows the High Courts to enforce both fundamental rights as well as other legal rights usually when there is no other alternative available to the aggrieved person. The territorial jurisdiction, however, is narrower under Article 226 when compared to Article 32.

Is it necessary to exhaust all alternative remedies before filing a writ petition under Article 226?

Generally, a writ petition is not expected to be entertained when the law provides alternative remedies to the aggrieved person. However,it is pertinent to note that it is not always necessary for alternate remedies to be exhausted by the petitioner before a petition under Article 226 is filed. The High Court is not barred from addressing a writ petition merely on the grounds of existence of alternate remedies.The High Courts have the discretion to decide whether the writ petition has to be entertained or not. As a general practice, High Courts usually entertain writ petitions irrespective of the existence of alternate remedies in the following four circumstances:

• When Fundamental Rights are violated;
• When principles of natural justice are violated;
• When the proceedings is wholly without jurisdiction;
• When the proceedings or resultant order is ultra vires the Constitution or relevant statute.

Is there a prescribed time limit for filing a writ petition?

There is no prescribed time limit for filing a writ petition. However, the courts have, on various occasions, highlighted the necessity to file the petition within a reasonable time after the cause of action has arisen. Undue delay in filing the petition without sufficient reason to justify the unnecessary delay may lead to the court dismissing the petition.

Can any court other than the Supreme Court and High Courts issue writs?

The Constitution confers the power to issue writs only on the Supreme Court and High Court. No other court, tribunal, judicial or quasi-judicial body can issue writs. However, the parliament has the power under Article 32(3) to empower a lower court to issue writs within its jurisdiction if deemed to be crucially necessary.

References 

1. https://primelegal.in/2022/10/23/writs/
2. https://www.intolegalworld.com/article?title=writs-in-indian-constitution 
3. https://blog.ipleaders.in/all-you-need-to-know-about-article-226-of-the-indian-constitution/
4. https://blog.ipleaders.in/article-32-constitution-india/