This article is written by Pratibha Bansal, a student of Banasthali Vidhyapith, Rajasthan, she has tried to explain the whole concept of writ under Indian Constitution in her article, along with some landmark judgment and decided case laws and procedure of filing writs in High Courts and Supreme Court.
Table of Contents
I would like to begin my article by quoting some lines of King Martin Luther as “Injustice anywhere is a threat to justice everywhere”.
Which means that, if anywhere in this world, any wrongful act is committed or injustice has been done to anybody then it will spread like a virus and can’t be tolerated anywhere. Therefore, all the justice done will be spoiled and everyone else has to wonder, what it would take for that same injustice to be done with them. Moreover, there arises a need to provide justice to all and remove the bias from the system. Hence the concept of writ were introduced in Common Law for keeping a judicial eye on the work of administration.
In ancient times, this unique development of writ were done by Anglo-Saxon monarchy that consist of brief administrative order, basically for land revenue purposes. During that time writs were the documents issued by the King’s Chancellor against the landowner whose villeins(feudal tenant) complained to the king about an injustice done with them. This document was only issued after the summons from the sheriff to comply deemed fruitful.
Later William took the concept of writs by making just two differences
- Writ were issued in latin instead of Anglo-Saxon, and
- Writs will be covering more command other than only land related commands
By 5 March 1133 writs became available to private individuals for seeking justice.there were two main forms of writs-
- Open- available for all to read.
- Letters close- available for one or more specific individuals only.
What is a writ
A writ is a written official order issued by the court. The formal order may be in form of warrant, direction, command, order etc. Writs can only be issued by the High Court Under Article 226 of Indian Constitution,1950 and by The Supreme Court under Article 32 of Indian Constitution,1950. Indian constitution has adopted the concept of prerogative writs from English common law. Writs was first used to describe a written command of the King. Whereas, these writs are now available to a person aggrieved by the decision of the inferior courts or administrative body in England.
Differentiating between writs and order it can be said that writs can be issued to provide extraordinary remedy i.e in cases where the aggrieved person is seeking for an extraordinary remedy usually against an administrative action, whereas, order can in passes in any matter. There are 5 different types of writ provided under law, whereas, no such classification for orders has been made.
Hence, all the writs can be called as order but all order can’t be called writs, because the ambit of order is larger than writs.
Types of Writ
There are 5 types of writes specified under Indian constitution law.
Writ of habeas corpus can be issued for preserving the liberty of a person, who is being illegally detained. It can be invoked against the state as well as against the person within whose custody the aggrieved person is. It came into the picture for preserving the rights and liabilities of
Writ of habeas corpus is a powerful weapon available before a common man who has been wrongfully detained by the person or state. This writ provides a fast and powerful remedy against illegal detention.
This writ is an order calling the person who was arrested or jailed the alleged person for producing the aggrieved before the court, for knowing the grounds of his detention and if not found any legal ground for his detention then let the aggrieved be free from arrest and let him enjoy his freedom.
The main focus of habeas corpus writ is preserving the right of the appellant’s freedom by a quick judicial review for pleaded wrongful detention.
This writ came before the existence of a statute, therefore, deep-rooted into the history of our common law.
This case is known as habeas corpus case, here it is explained, what is a writ of habeas corpus mean? Quoting Justice Khanna “writ of habeas corpus is a process of securing the liberty of an aggrieved person by providing an adequate method for immediate relief from wrongful or illegal detention. Whether the person kept in wrongful custody is in prison or under private custody of an individual.” and after the enquiry regarding the cause of his imprisonment by the High Court and the judges of that court, if it is found that there is no legal jurisdiction for that incarceration, the aggrieved person is ordered to be released from custody.
There will be a total of 15 features of this writ of habeas corpus that will be making its whole concept more clear.
- Writ of habeas corpus is a process by which any person who has been wrongfully arrested or detained may be set free from such illegal internment.
It is in the form of an order delivered by the High Court or Supreme Court for calling upon the person who made the arrest of the aggrieved person. Commanding to produce such person before the court, for hearing the grounds on which his arrest was made.and if there is no legal ground observed by the court in making his arrest the person making such arrest is ordered to release the aggrieved immediately.
Justice Bhagwati held that the main aim of this writ is preserving the liberty and freedom of the person subjected to illegal detention and allow him to enjoy his liberty at the fullest. In extension to this aim, his(person alleged to be illegally apprehended) production before the court is ancillary.
Whereas, under English law production of an alleged person body, for determining the legality of his detention, is not required. And under before US Courts also the same principle is followed.
- Who may file an application
Application for habeas corpus can be filed by the person himself whose detention was alleged wrongful and can also be filed any other person ( can be a mother, father, wife, brother, sister or even friends) on his behalf, subject to the rules constructed by different High Court in this respect.
Supreme Court declares that an application for the writ of habeas corpus can be filed by the person illegally jailed or can also be filed by any other person on his behalf provided that such any person must not be totally a stranger to the person wrongfully detained.
- Duty of Applicant
Application for writ of habeas corpus must be filed along with
- An affidavit
- Declaring the grounds of his detention,
- Circumstances in which his arrest has been made, and
- Nature of his detention.
Therefore, it became the duty of the person making an application to disclose all the facts of the case in that application/petition to the best of his knowledge.
Under English law, it is stated that it becomes the duty of the state to place before the Court all the relevant and material facts relating to such an impugned action truly and fairly, whenever any arrest or detention is challenged before the court.
On receipt of the application, if the court is satisfied that there arises a prima facie case for granting the prayer then, the court will issue a show cause notice(rule nisi) calling the opposite party who detained the applicant on the specified day for presenting their side of the case.
On the specified day court after analysing all the point made by both the applicant as well as by the opposite party will look into the merits and pass an appropriate order. If it is viewed by the court that the detention is unjustified, it will order the authority who detained the applicant for immediate release of the convicted person. Whereas, if the detention is justified according to the court, the show cause notice must be discharged.
In the above-stated case, it was held by the Supreme Court of India that the court before which the case is pending for disposal has the power to grant interim bail. But in the usual course of working grant of interim bail by the court is not preferred.
This a recent judgment of 2008 by the Supreme Court of India disclosing that as per general principle writ of habeas corpus can be issued only once the person has been arrested whereas, there are exceptional circumstances in which a petition for writ of habeas corpus is maintainable even if the person is not actually detained. Such an exercise is undertaken by writ- court with extreme care and caution.
- If certain conditions are satisfied then it will become absolutely clear that detention can’t be prima facie illegal:-
- Article 21 of the Indian Constitution declares that “every detention must be according to the procedure provided under the law”. Meaning that there a given valid law allowing the authorities to convict the person accused of some offence and the procedure prescribed must be strictly followed by the person making such arrest. The following procedure must be fair, reasonable and just.
- The conviction must not be followed by infringement of any of the conditions provided under Article 22 of The Indian Constitution. Hence any person not produced before a Magistrate within 24 hours from his arrest (excluding travelling time) shall be entitled to be released on a writ of habeas corpus.
This is a landmark judgment in which Justice T.S.Thakur has laid down 11 which are supposed to be followed by the person making an arrest of an accused person. These guidelines include production of the person before any magistrate within 24 hours from the time of his arrest and held that in case if these guidelines are not being followed by the court then person detained must be entitled to be released on the same grounds on a writ of habeas corpus.
- The legislature which is making law in regards to a man, depriving him from his personal liberty must also be empowered to make laws under Article 246 making knots with the distribution of legislative power.
- Writ of habeas corpus can only be issued if there is illegal restrain and the person is entitled to be released on a petition of habeas corpus. Question asked by the court on a petition of habeas corpus is whether the detention is lawful or not and if it is answered positively then such a writ will not be issued and if answered negatively then the writ must be issued.
In the given case application for a writ of habeas corpus was filed for the discharge of Robert Soblen, as here before the court, the question was, whether the detention of Mr Robert is lawful or not? As he is not in a condition to be held in prison, medically. His surgeon at the hospital also didn’t allow any legal documents to be served to him until july 3.
Therefore, considering the facts of the case writ of habeas corpus was granted.
- In case it is visible that detaining authority has acted mala fidely or with the intention to deceive the arrested person or there are any personal grudges involved then a writ of habeas corpus will lie.
The petition was filed under article 32 before the Supreme Court of India.writ of habeas corpus was filed against his detention in Madras jail mentioning all the dates since December 1947, under ordinary criminal law. His detention was made under preventive detention act IV of 1950.
Petitioner challenges the legality of the given act ass it contravenes the provisions of article 13,19 and 21 and provision of preventive detention act are not in consonance of article 22 of Indian Constitution also. And challenged the validity of the order stating that the order passed against him is mala fide.
Held- Court will not interfere on the question of malafide unless it is proved by the petitioner that the authorities have used their power in a mala fide manner or the grounds of his detention are not justified. It is also declared by the court that though the provisions of the act are harsh or rigid, but those do not take away the rights provided under chapter III, Article 21 and 22 of Indian, therefore provision of preventive detention act can’t be held illegal or ultra vires and impugned order was upheld by the court.
- According to the general principle of law, writ of habeas corpus will not lie if the person is undergoing imprisonment on a sentence passed by a court in any criminal trial on the ground of wrongfulness of his detention. That implies writ can’t be issued when the person is not convicted or is clearly visible that his detention is done for the execution of a sentence on any criminal charge. While the conviction is taking place an application of issuance of the writ can’t be filed along with it.
In the given case it was held by the supreme court that whenever a person is convicted of a criminal charge and sentence of his conviction is passes by the criminal trial court then such detention can’t be challenged on the ground of the erroneousness of the conviction.
There is no right to file a successive application for grant of habeas corpus writ to different judges of the same court.
Whereas, till many years in England an unsuccessful applicant is allowed to approach one or more Judges of the same court or any other court successively. An applicant can also get his application renewed on the earlier pieces of evidence and on the same grounds for issuance of this writ.
It was held by Lord Atkin, justice of the Supreme Court of Nigeria, that issuance of a writ of habeas corpus must be followed by proper procedure. The subject has the right to question the validity of his detention again and again by moving an application before different judges for the same facts and it became the duty of the court to guard the freedom of the subject.
Hence an applicant can move from one judge to another until his application is satisfied. But in Hastings (No.2) re, in 1959this principle of English Law was overruled.
Currently, the applicant has no right of successive application.
Under this case, the Supreme Court has given a ruling relating to the successive application of habeas corpus and held that an applicant has no right to file a successive application of habeas corpus on the same grounds and on the same evidence. Whereas, if there arise fresh or new grounds then an application for the same can be filled and will not be barred under this rule.
- In India appeal may lie against an order relating to grant or dismissal of the application for issuance of the writ of habeas corpus before the Supreme Court under Article 132, 133, 134 or 136. On the other hand under English Law once an order for the discharge of a person on the writ of habeas corpus is passed then there lies no appeal against such order.
In this case, the applicant has entered the premises of the state illegally and he was from India. Therefore, he got arrested there only and detained in prison. His deportation was pending and he requested the authority to release him for some time as he has to get married before departing for India. And authorities did him to get married and there stated that his discharge is allowed on the application made by him and such discharge is not appealable.
- One of the effective ways to get an immediate release from unlawful detention is via a writ of habeas corpus, irrespective of whether the person is detained in prison or in private custody of an individual. Detention does not make physical confinement mandatory. It just means that the person is restricted from performing some task and is in control of some authority i.e custody and control are sufficient for lodging an application for the writ of habeas corpus.
If a child is forcibly kept away from his parents or any other person is forcefully deprived of his liberty, the court will always issue the writ of habeas corpus to the person who has custody of the aggrieved person and order the person to bring the aggrieved person before the court on the application of habeas corpus order the person in and if found that the alleged person is deprived of his personal liberty without any lawful ground then, or for immediate release of the person is passed by the court and the aggrieved must be set free.
For example- if a child is taken away from the lawful custody of her mother by the father and he is not allowing the child to move out or meet her mother then for the release of the child from the custody of his father writ of habeas corpus can be issued.
Whereas, no writ of habeas corpus can be issued if it is sought against a parent for the custody of the child.
- Article 226 of Indian constitution states that in case any application is issued before the high court for issuance of a writ of habeas corpus, then house of legislature does not possess any power for questioning or objecting on the jurisdiction of the high court to entertain such applications just because the detention in question is made on the order of the legislature.
It was held by the supreme court of India that thought the speaking or general warrant has been issued by the house directing the detention of the party in contempt but, the High Court has jurisdiction to entertain a Writ Petition for habeas corpus under Art. 226, Thus, the dispute really centers around the jurisdiction of the High Court to entertain a habeas corpus petition and it also has the power to pass an order of interim bail.
Ordinarily, a writ court will not award compensation while exercising their power under Article 32 or Article 226 of the Constitution. While in certain cases the court may award monetary compensation to the person who has been illegally detained.
Whenever an order for release of a person from illegal detention is passed by the court under Article 32 (Supreme Court) or Article 226 (High Court) and detaining authority claim that the person has also been released, but the fact of such release are not found and the person detained is not traceable the court may order the payment of compensation by the detaining authority.
Lastly, it is claimed the writ of habeas corpus can only be issued after the person is detained and not to prevent a person from getting arrested.
In the given case the whole concept of writs were explained by Justice C.K. Thakker and Altamas Kabir. It was said by the judges that writ of habeas corpus is the first security of civil liberty and has a great constitutional privilege. While explaining the whole principle of writ of Habeas corpus in this case it was held by the court that thought this writ is issued to secure an individual from illegal detention but, but once the detention is made then only such writs can be issued only on an order of detention writ of habeas corpus can’t be enforced.
History of this writ say that it is a command, issued in the name of the crown by the court of king’s bench to the subordinate court, inferior tribunal, board or to any person requiring it for him to perform a public duty imposed by law. Therefore, a writ of mandamus is a command given by any high court or supreme court to the lower court or any tribunal or board or to any other public authority to perform their public duty imposed upon them by law. It’s primary objective is to supply defects of justice and prevent rights of the citizen.
In the given case high court has issued a writ of mandamus directing the public service commission to include the names of the six petitioners in the list prepared by the Commission under Rule 9(2) of the Rules for appointment to the cadre of Munsiffs. In the view of the High Court the appointment of ten candidates whose names were included in the list under R. 9(2) as fit for promotion could not be disturbed, yet the six applicants should be added to the list and appointments should be made out of that list.
Such direction as given by the high court to public service commision can also be issued against any person or body corporate also to perform their public duty.
Writ of mandamus have several highlighting features, as explained below:-
- Writ of mandamus is a judicial remedy in the form of an order from a superior court to any government body, court, corporation or public authority to do or not to do some specific act that the government body, court, corporation or public authority are bound to perform or not to perform under law, as the case may be. These acts must be performed as a part of their public duty or statutory duty.
Writ of mandamus cannot be issued by the higher authority to force their lower departments to act or do something which is against the law.
So, basically this writ is a command to do and also command not to do a particular act against the law, as the case may be.
Writ of mandamus can only be issued when there exists a legal right without a legal right it can’t be issued. A person be called aggrieved person only when he is denied a legal right by any person, court or board who has a legal duty to do something and abstains from doing it.
In the given case Justice Ray A.N.given a definition of an aggrieved person” a person is said to be an aggrieved only when his legal rights has been denied by someone who has a legal duty to do something or denied from doing something. The denied legal right must be a legally enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus.
- Existence of Legal Right
Any person seeking for writ of mandamus must show that he has a legal right to overpower the opponent against whom writ will be issued, to do or not to do some specific act. Legal right of the petitioner is a condition precedent. Legal right must be a legally enforceable right as well as a legally protected right before claiming for mandamus. Existence of legal right is the foundation of jurisdiction of a writ court to issue mandamus.
In the given case Dr. saran has challenged the order of the High Court by a special leave of appeal before the Supreme Court of India.
From the facts of the case it was observed by the court that Dr. saran was not eligible for appointment at the time the decision was taken by the High Court i.e. on March 31, 1965. Whereas, respondents 5 and 6 were so eligible and therefore, Dr. Saran, had no right to ask for a writ of mandamus. It was pointed out by the court that the purpose of mandamus is to force the authorities to do something, it must be shown that the statute imposes a legal duty and the aggrieved person had a legal right under the Statute to enforce its performance. Therefore, the appeal was dismissed by the court and writ of mandamus was not issued.
Supreme court held that the applicant must have a legal right to compel the performance of some duty cast on the opponent by The Constitution or any other statute. And the duty must possess three qualities
- Duty must be of Public Nature
- Must not be a discretionary one
- And duty if discretionary then the power must have been conferred by the authority and statutory provisions are made for it.
Case- CGA v K.S. Jagannathan
Supreme Court held that high court has the power to issue writs of mandamus in case the authority or government body has failed to exercise their discretionary duty or has wrongly exercised the discretionary conferred on them by the statue.
- Against whom writ of mandamus does not lie
- Will not lie against the president or governor of a state for the performance of their duty or exercise of their power- Article 361
- Will not lie against the state legislature for preventing them from considering laws pleaded to be violative of constitutional provision.
In the above stated case the Sale Tax Deputy Commissioner has told one of a bidder in an auction of Indian made foreign liquor that such liquor will be exempted from tax whereas, such exemption was not granted by the States Government and here, the Supreme Court held that court can’t issue writ to the State Government for performing their legislative powers and neither ask legislature to make change in any law and ask execution for not performing the imposed laws.
- Will not lie against an inferior or ministerial officer who has to obey the order of his superior according to law.
- Neither to be issued against inferior or ministerial officer bound to obey the order of a competent authority, and even can’t compel him to do something which is a part of his duty in that capacity.
- Will not lie against a private individual or any private company
Justice Shelat held that an application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character, nor can such an application be maintained to secure performance of an obligation owed by a company registered under the Companies Act, 1956 towards its workmen or to resolve any private dispute.
Court held that if a writ of mandamus could not lie against a company which is neither a statutory company nor one having public duties or responsibilities imposed upon it by a statute, no relief could also be given by granting a declaration on the court of the agreement between the company and its workman being illegal.
- Special remedy available before any person whose rights are being infringed under article 223 and 32 does not intended to overrule the modes of obtaining relief by an action in civil court or by any other court. Issuance of writ under these articles is discretionary power of the court and especially in the case of issuance of writ of mandamus.
As a general principle it is stated that if there is any unreasonable delay in seeking for this extraordinary remedy then, remedy of mandamus may not be made available.
On the other hand, even if there is no such delay, and a prima facie triable issue as regards the availability of such relief on the merits of grounds like limitation is raised before the Court, should ordinarily refuse to issue the writ of mandamus.
- For issuance of writ of mandamus, one of the essential requirements is that there must be a demand by the person seeking relief and the same demand must have been refused by the concerned authority.
In “Halsbury’s Law of England” it is stated that:-
As a general rule party seeking a writ of mandamus must know that what was the actual requirement, for considering whether or not he should comply, and it must be proved by evidence that the demand was distinct by the part and that demand is met with a refusal therefore, prerequisite for mandamus is the acknowledgment of the person seeking mandamus is must, about what he was required to do.
In the given case petitioner kamini kumar was charged with an act of interdisciplinary by disobeying the orders of D.C.E and also for being disloyal to state government of West Bengal and for not making perfunctionay search and not collecting other information and received a suspension from the department.
Petitioner filed an appeal but the same was dismissed by the commissioner of police as he felt himself competitive enough to deal with it.
The main point raised by the petitioner are two:-
- He was and always will be a member of west bengal police and not calcutta police.
- Deputy commissioner of police was a lower authority in rank than authority of petitioner and there was a violation of article 311(1)
Writ of mandamus is not a writ of right and a person invoking the special jurisdiction of the court, for the extraordinary remedy by way of a writ was required to be diligent. Therefore, lastly it was held that the writ of mandamus is a discretionary writ. And the charges against the petitioner was such that even if he shows any technical flaw then also one would refuse to interfere.
Petitioner in the above mentioned case is seeking for writ of mandamus claiming that let him be the poojari of Sri Chelliamman cum Ayyanar temple, situated in Koonancherry Village, LPulla Boothangudi (PO), Papanasam Taluk, Thanjavur District. As his ancestors are serving as poojari in that temple since last 300 years.
Madras High Court held that writ of mandamus can’t be issued in this case as the temple is under the authority of Tamil Nadu Hindu Religious and Charitable Endowment and there is no demand made by the petitioner to the appropriate authority. Therefore, petitioner is ordered to move an appropriate application before an appropriate authority.
- The court to which application is made for issue of writ of mandamus must not consider itself as a court of appeal for deciding the matters of administrative authority. The court should not examine the correctness or any other considerable point of the case on merits.
Court can’t even question the discretion of the administrative authorities whereas, when such discretion is illegal or given in case of excess jurisdiction or with malafide intent or the authority making such decisions are influenced by external contents or materials, then the court may do so.
In this case emphasis has been laid down on Article 19(1)(g) on the right to practice any profession, or to carry on any occupation, trade or business, subject, of course, as laid down in Article 19(6), to any reasonable restrictions in the interests of the general public as may be placed on it. Here the district court has refused the grant of licence to the applicant on the ground other than licensing authority can legitimately take into consideration.
Therefore, a misuse of the power by licencing authority by not renewing the licence on illegal grounds and misusing their discretionary power can frustrate the very purpose of the welfare State established by the Constitution of this Country.
Though on the discretion of administrative authorities court can’t raise any question but where it is seen that such discretion is illegal then a writ of mandamus can be issued against the inferior authority.
Hence, it was held by the Allahabad High Court that order of the District Magistrate, Kanpur of refusing to renew the petitioner’s licence will be quashed, and a writ in the nature of mandamus will be issued to the District Magistrate, Kanpur, directing him to consider the application of the petitioner for the renewal of his licence on its merits.
Bombay High Court has given its observation on the main and principal object of a writ of mandamus and held that writ of mandamus is issued to compel Government or its officers to carry out their statutory obligation and before issuing this writ court has to check that, Government or its officers do not overstep the limits and the bounds that the statute has prescribed for the exercise of their power.
Wherever there are certain conditions attached by the legislature with the power, without which such powers can’t be exercised and the officer possessed with the power even without satisfying the condition there also court can intervene and prevent officer from acting contrary to law.
- Ultra vires act of Administrative Authorities
Mainly the writ of mandamus is issued whenever an administrative authorities acted ultra vires and also for preventing the government or any law making body from enforcing any unconstitutional act or notification. That is to say that whenever any administrative authority perform any work beyond their power or any government /legislative authority enforcing any law or notification which is unconstitutional then the writ of mandamus may be issued to stop the authorities from doing so.
Facts- Respondent no.1 is an education society of bombay running as a recognised Anglo- Indian School named Barnes High School at Deolali. This education society receives aid from State of Bombay. The state of Bombay issued an order dated 6th jan 1954. Mainly the operative part of the order states that no primary or secondary school shall from the date of issue of this order take admission to the class where enlgish is used as a language of delivering instruction to any pupil other than pupil belonging to a section of citizens whose language is english only like Anglo-Indians and citizens of non-Asiatic descent.
So, one citizen of indian of chritian community let say A claiming that English is the mother tongue of his daughter and on the other side there was another Indian citizen lets say Z claiming that gujrati is the mother tongue of his son, both of them were denied admission on the grounds of aforesaid order of their respective wards.
Therefore, two faculty from the society filed a writ petition under Article 226 before the High Court of Bombay for the issue of writ of mandamus praying that state of Bombay and its officers must be restrained from enforcing the aforesaid order and alloying the society to take admission of non anglo Indian citizens or citizens from asiatic descent and educate them all through the medium of english and the similar application was made by A&Z for allowing the admission of their wards. Both the applications were heard together and accepted by the High Court and ordered in favour of the petitioner as prayed.
State of Bombay moved to Supreme Court on appeal.
There were two important questions raised on the aforesaid order-
- Rights of the students of non anglo Indian or asiatic descent community to get admission in Respondent society.
- Right of the education society to admit non-Anglo- Indian students and students of Asiatic descent.
Held- Supreme Court held that –
- Impugned order issued by the state government of Bombay is void, as it violates the Fundamental right of non anglo-Indian students and students of non-Asiatic descent guaranteed to all the citizens under Article 29(2) of the Indian Constitution,1950. Article states the right of every citizen to get admission in educational institutions aided or maintained by the state.
- As the provisions of the said article is applicable to all the citizens whether they belong to a majority or minority community and protection given under said article extent against state or anybody who violate the right conferred.
- Clause 2 of Article 337 of Indian Constitution impose obligations on the Anglo-Indian schools to make 40% reservation in annual admission for non Anglo-Indian students. Hence, there is an obligation imposed on the Barnes High School to take admission of at least 40% non Anglo- Indian students and with the impugned order this can’t be possible and also for receiving grants from the government 40% admission of non Anglo- indian is condition precedent. Therefore, the impugned order is unconstitutional as violative of Article 337 and Article 29. The said impugned order is preventing the Anglo-Indian schools from performing their constitutional duties and exposes them to the risk of for-feiting their constitutional right to the special grant.
From this decision of the High Court and Supreme Court it was made clear that writ of mandamus was issued against State of bombay and its authority for preventing them from issuing an unconstitutional order which is violative of Article 29 and Article 337 of Indian Constitution which imposes right to education to all the students in government aided or maintained institution and imposes a legal obligation on the Anglo-Indian educational institution to take admission of non Anglo-Indian students as requirement for seeking grant respectively.
Facts– in 1954 government of Bihar notify an industrial dispute between the management of Bata shoes co. Patna and their 31 workmen under the powers conferred in said Government by section 7 read with section 10 of Industrial Disputes Act, 1947. Subject-matter of dispute was regarding the dismissal of the workmen in question was justified or not and if such dismissal was not justified then whether they will be entitled to some reinstatement or any other relief?an industrial tribunal was constituted with a single member.
Then in january 1955, also another similar case was referred by the government of Same Bata shoes co. Ltd. and its 29 other workers to the same tribunal which was previously constituted.
While the proceedings of these two references were pending before the tribunal, the government of Bihar issued third notification on september,1955. By this third notification government proposed to supplant the two earlier notifications, by which it combined the two disputes together, ad bata mazdoor union to the dispute and refer it for adjudication before the tribunal. Question involved in the referred dispute was regarding justification of dismissal of 60 workmen, and for what relief they are entitled to? No receipt of third notification tribunal cancelled the hearing of prior two references and direct that files for said references should be closed.
After that Bata co. and its workmen filed two separate application before the High Court under Article 226 and 227 for quashing the third notification claiming it be illegal and “ultra vires”. Patna High Court on 4 April 1956 held that government has no power to supplant the earlier notifications in lieu of which quashed the third notification and issued a writ of certiorari also issued a writ in the nature of mandamus directing the industrial tribunal to proceed in the first two references made to it and provide a conclusion in according to law.
Two appeals were filled by State of Bihar before the Supreme Court urging that the order of the High Court was erroneous.
Supreme Court confirm the findings of the High Court of Patan, that cancellation of first two notification by the government is illegal and ultra vires. It was held that in making a reference under section 10(1) by appropriate government is an administrative act and the preliminary step to their function under this section is to form an opinion in regard to the actual existence of industrial dispute. Therefore court find more appropriate to issue a writ of mandamus against the ultra vires act of the appellant in respect of third impugned notification. And appeals were dismissed by the court.
- Special Judicial Remedy
Writ of mandamus is a special judicial remedy and issuance of this writ requires attention to the claim asserted and no delay. Thought the law of limitation does not apply on writ proceeding but doctrine of delay and laches applies to such proceedings.
- Continuing Mandamus
Primary object of writ of mandamus is to issue a command for directing the authority to do some work or abstain from doing some act. Whereas, in cases where it is shown to the court that mere issuance of order will not fulfill the purpose unless there is any monitoring of court, then in such cases instead of issuing any final order or direction and disposing the case, court may issue an interim direction from time-to-time and the authorities to whom such directions are issued, have to follow them. This whole process of issuing interim order/direction is known as “continuing Mandamus”.
Mostly issued in environmental cases, particularly in public interest litigation.
Allegations raised in this writ petition filed in public interest under Article 32 were that
- Government agencies like the CBI and the revenue authorities had failed to perform their legal duties similarly as they had failed to investigate matters arising out of the seizure of the “Jan diaries”;
- That the prosecution of terrorists had led to the discovery that there is financial support to them through politician via illegal means using tainted funds obtained through `hawala’ transactions
- This investigation had also disclosed a connection between politicians, bureaucrats and criminals, the politicians who after getting into the power forget all the promises they made to the public for seeking vote after receiving the seat and money they wrongfully use their power to receive money from unlawful sources and given the same money for unlawful consideration
- The CBI and other Government agencies had failed to investigate the matter i.e. they failed to perform their duties well, take it to its logical conclusion and prosecute all persons who were found to have committed and offence as just because of their leniency such alleged offences are being committed by Higher officers
- That this leniency by CBI and other authorities, was done with a view to protect the persons involved, who were very influential and powerful so that these authorities are protected from bad effects of their unlawful use of power.
- That the matter discloses the connectivity between crime and corruption at high places in public life and it posed a serious threat to the integrity, security and economy of the nation corruption and crime go hand in hand
- That probity in public life, the rule of law, in the interest of justice and for the preservation of democracy required that the Government agencies must be compelled to duly perform their legal obligations and to proceed in accordance with law against.
Prayed reliefs were that
- That alleged offences must be investigated in accordance with law.
- An appropriate officer must be appointed to make required inquiry.
The procedure adopted by the court to investigate the matter properly and deliver justice was of “Continuing Mandamus” and issued directions to the CBI regarding investigation and order not to report the progress of the investigation to officers holding high post in politics, such a direction is given just to maintain fairness in investigation and also to maintain credibility. During the proceedings of the case were pending before the court, continues investigation is going on and Attorney General is directed to report the progress of the investigation from time to time in order to have faith in agencies making investigation and ensuring that those agencies were not continuing to drag their feet. With the issuing of the writ of “continuing mandamus” agencies perform their statutory duties.
In this case only path of writ of continuing mandamus was a new tool found because of the requirements of the case.
Court held that there are ample number powers covered under Article 32 read with Article 142. Issuing a formal order does not satisfy the purpose of the Article. Every court must issue such direction under Article 32 which satisfy its purpose. Therefore, court issued guidelines and directions. Laid guidelines require rigid compliance, till legislature step into the matter and substitute those guidelines with proper laws.
To achieve the object of the writ a fair, honest and expeditious investigation was demanded, Investigation into every person’s accusation or person reasonably be suspected of crime. Duty of the court was to make sure that the CBI and other government agencies perform their duties in accordance with law. Court did not require to go into the merits of the case in continuing mandamus proceedings.
In the view of the proceedings of this case there is an urgent need for state government to set up rigid and credible mechanism for selection of police chief and other officers because the problem raised in this case is increasing and getting more serious day by day.
Most Popular Writ
This writ is the most popular writ amongst all in India. Mandamus is a supplementary means of substantial justice, when there is no specific legal remedy available before any person for protection of their rights given by law and the court is satisfied that the administrative authorities have not acted according to the law then the writ may be issued.
And lastly it can be said that the application for writ of mandamus must have been made in good faith and not with ambiguous motive and ulterior purposes. Purpose of application should be grant of justice and not to harass the respondent. And it may not be refused only on the ground of availability of alternative remedy.
Appellant in this case represent a company named- C. Parakh and company India Ltd. which is a registered company under the provisions of the Indian Companies Act, 1913. Its head office is situated in bombat, and several other branches in the state of M.P. business of appellant company was that of cotton. Appellant co. sells cotton bales to several mills and individuals in many places of M.P. and Bombay, under the system regulated by textile commissioner at Bombay. These cotton bales are sent by rail under insurance.
Under the Central Provinces and Berar Sales Tax Act, 1947 (Act I XXI of 1947), cotton was declared liable to sales tax on the 11th of April, 1949, and since that date the appellant commenced paying the tax in respect of the purchases made by it til december 1950. Further he declined to pay tax, because he realised that payment of tax could not be made liable in state of Madhya Pradesh because the transaction done in State of M.P. are not the transaction within state and for transactions done outside the state, State Government does not possess the power to make laws in respect of such transactions.
In this writ petition it was alleged by the appellant before the hon’ble court was that an unjust and illegal imposition acts an an illegal restriction on trade and violates Fundamental Rights. It was alleged that section 2(g)(presently this provision is repealed) of the Central Provinces and Berar Sales Tax Act, 1947 was illegal and ultra vires. This contention was explained with certain valid points in the arguments stating that under Constitutional law sales tax could only be collected in the state where the goods whose sales were being done, were delivered for consumption.
High Court in spite of all these findings refused to issue the writ of mandamus under Article 226 on the ground explaining that writ of mandamus can only be issued to compel an authority to do or abstain from doing some act, in cases where the action of authority is dependent upon some action of petitioner as in this case. The petitioner had not even made his return and no demand for the tax could be made from him.
Then, in the petitioner before the hon’ble court contention raised were that set out the provision 2(g) from the act was declared ultra vires.
It was held by the court that his infringement of fundamental right under Article 19(1)(g) was entitled to relief under Article 226 of the Constitution. It was also held by the court with reference to a judgment of State of Bombay v The United Motors (India) Ltd. that the principle that court will not issue writ when adequate alternative remedy was available could not apply in this case because when any person comes before the court with an allegation to infringement of fundamental right, the remedy provided by the Act is of an onerous and burdensome character and therefore, could not be denied in such cases.
Writ of prohibition is as old as common law. Initially it was used to limit the jurisdiction of ecclesiastial by restraining them from acting without or in excess of their jurisdiction and later it is used by common law courts.
Before the enactment of the Constitution of India, there were three charters under which court use to exercise their power and after the enforcement of the constitution High Court and Supreme Court exercise the power to issue this writ.
It is an extraordinary writ of preventive nature. It prevents courts, tribunal, quasi judicial bodies and other officers from exercising their power beyond their jurisdiction or exercising those powers which are not vested on them.
Following features must be noted for this writ:-
Writ of prohibition is issued to the court or any tribunal to bar them from doing something what they are about to do. This bar is applied whenever a subordinate court or tribunal hears the matter beyond their jurisdiction or on matters on which they have no jurisdiction.
In the given case an observation is given by the Supreme Court that writ of prohibition is an order directing inferior courts and tribunals to stop from proceeding therein on the ground that the proceeding are taking place with excess jurisdiction or lack of jurisdiction.
In this case the Supreme Court has explained the jurisdiction of the court for grant of a writ of prohibition. It says that power to issue writ of prohibition is primarily supervisory and the main object for behind the writ of prohibition is to restrain inferior courts or tribunals from exceeding their jurisdictional limits. It is well settled law derived from decided cases that writ of prohibition lies not only in case of excess of jurisdiction or for abuse of judicial power but writ lies also in cases of where the actions are taken in contravention to the rules of Natural Justice.
But the writ does not lie to correct the course, practice or procedure of inferior courts or tribunal, also to correct the wrong decision of inferior court on the merits because issue can be issued only when the subject matter of the plea is a question of law.
Writ of prohibition can’t be issued when there is an error of law unless such error makes it go outside its jurisdiction. Therefore it is clear from this case that if there is want of jurisdiction then the matter is coram non judice and a writ of prohibition is lie otherwise on any other ground other than on point of jurisdiction writ of prohibition can’t be issued.
Grounds for issuing writ of prohibition
- Absence or excess of jurisdiction– where there is an absence of jurisdiction or total lack of lack of jurisdiction.
- Violation of natural justice– In case where the principle of natural justice have not been observed or if observed there is a violation of those principles. For example, if the opposite party have not been served with the notice and not been heard. Then the writ of prohibition can be issued.
- Unconstitutionality of Statute– whenever any tribunal or court proceed to act under law which is ultra vires or unconstitutional, a writ of prohibition can be issued against the proceedings.
- Infringement of Fundamental Right– where the impugned action is infringing any fundamental right of the petitioner then the writ of prohibition can be issued.
- Error of law Apparent on the face of Record
Prohibition is writ of right not a writ of course and is of preventive nature rather than corrective. The main object of this writ is to prevent unlawful assumption of jurisdiction. Therefore, writ does not lie in case of irregularity in exercise of jurisdiction or jurisdiction has been exercised improperly or erroneously. Availability of an alternate remedy does not create an absolute bar on issuance of a writ of prohibition.
This writ can be issued during the proceedings are pending before a judicial and quasi-judicial body and if the proceedings have been terminated and authority became functus officio then in such cases writ of prohibition can’t be issued. In such cases writ of certiorari may be issued.
In this case appellant and respondent 1 to 5 were nominated for Lok Sabha election from some constituency in Madhya Pradesh. After that respondent 4 &5 withdrawn from election. Election result declared stating that respondent 1 secured highest no. of seats followed by appellant.
Writ of prohibition is much in common with certiorari in its scope as well as in the rules of its governance. Therefore both these writs lies against a judicial and quasi- judicial body and not against any executive authorities. Both these writs are concerned mainly with Public Law.
- Distinction between Certiorari and Prohibition
These two writs are that both these are issued at different stages of proceedings. One is issued to the inferior court when such court acted without any jurisdiction then the person against the proceedings are taking place can move to the superior court for a writ of prohibition, whereas on the other hand for a writ of certiorari court have to hear the matter and gives decision on that and the aggrieved party can move to the superior court of issuance of writ.further the order may be passed for quashing the decision on the ground of want of jurisdiction.
In cases where inferior court might have passed the order but the same does not completely dispose of the case so it might be necessary to apply both the writs- certiorari for quashing the decided issues and prohibition for barring further proceedings for continuing the case and deciding left issues. Like in cases where interim orders had been passed.
In the above case supreme court held that in cases where there is a requirement for prayer of certiorari as well as prohibition and the in the application not prayer of certiorari has been made then it would be open to the court to issue the writ and stop further proceedings which are affecting the decision.
But in case the proceedings have ended then seeking for prohibition will be too late and writ of certiorari must be a proper remedy for quashing. Clearing on the point it was also held that writ of prohibition will lie when the proceeding are pending to a large extent and writ of certiorari will be issued when then case has been terminated in a final decision.
Where the proceedings of inferior courts are partly within the jurisdiction and partly without it, then the writ of prohibition will lie to the extent of excess of jurisdiction.
It was held that the Central Government may, from time to time, by notification in the Official Gazette, prohibit or restrict the bringing or taking by sea or by land goods of any specified description into or out of India across any customs frontier as defined by the Central Government.” and the High Court may issue writ of prohibition for prohibiting the customs authorities from enforcing the invalin conditions without the consult of the Central Government.
- In case of Bengal Immunity Co. v State of Bihar it was observed by the Supreme Court that the existence of an alternative remedy that is adequate and equally effective remedy may be a matter that can be taken into consideration by the High Court in granting the writ. It is a writ of right not a discretionary writ and nature of writ of prohibition is much of corrective one rather than preventive.
Presence of an alternate remedy does not impose an absolute bar on issuing writ of prohibition.But presence of an alternate remedy will be more relevant in context of certiorari.
Writ of certiorari has been defined as one of the most effective and efficient remedies taken from common law. Certiorari means “to certify”. It is an order issued by the High Court to an inferior court or any authority exercising judicial or quasi-judicial functions.
The main object of this writ is to keep the inferior courts, judicial and quasi-judicial authorities within their limits of jurisdiction and if the act in access of their jurisdiction their decision will be quashed by the High Court and Supreme Court by issuing a writ of certiorari.
Lord Atkin stated that writ of certiorari may be issued “wherever any body of person having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority.” This statement has been approved by the Supreme Court in many cases like in Province of Bombay v Khushaldas and held the four components of this writ that are-
- Body of persons
- Such body is having some legal authority
- Legal duty for determining the question affecting the rights of the subjects
- Duty to act judicially
It is a great corrective writ by which superior court may exercise supervisory power on inferior courts and judicial or quasi-judicial tribunals. By exercising such power their records and proceedings are brought under review and the sole object become to prevent abuse of law.
Earlier writ of certiorari was used as a writ of error. It was invoked only in criminal matters and later on was also used in civil cases.
Writ of certiorari may not be issued against
- an individual
- Private authority
- An association or tribunals having no judicial or quasi-judicial powers.
- Also can’t be issued for making declaration that an act or statute is ultra virus or unconstitutional.
A writ of certiorari may be issued on the following grounds:-
- Want or Excess of Jurisdiction
When an inferior court or tribunal act in excess of jurisdiction or act without jurisdiction or fails to act then, Writ of Certiorari come into the picture for correcting the errors of jurisdiction.
Wherever there is a defect in jurisdiction or power writ of certiorari must be issued. In case of Rafiq Khan v State of U.P.
Facts of the case- section 85 of Uttar Pradesh Panchayat Raj Act, 1947 a sub-divisional Magistrate does not have power to modify the order or sentence of Panchayati Adalat. Whereas, he can either quash the order or cancel the jurisdiction panchayati Adalat. In this case sub- Division Magistrate has modified the order by maintaining the conviction of the accused in one of the offences and quashed his conviction in respect of the other offences, in this manner the order passed by the Panchayati Adalat has been modified by sub- Division Magistrate.
Held- Allahabad High Court held that order of sub- Divisional Magistrate is contrary with the provision of section 85 and quased the same order by issuing a writ of certiorari.
Therefore, by reviewing this case it is clear that want of jurisdiction may arise from the nature of the subject matter of the proceeding and court can’t decide some of its parts and let the other be untouched. Enquiry of the whole case should be conducted together.
Similarly in cases where the inferior courts have wrongfully denied to exercise jurisdiction vested in it, writ of certiorari may be issued to quash the decision of inferior court and decide the case falling within their jurisdiction.
In cases of conditional powers i.e there are certain powers vested in the court that can be exercised only when certain jurisdictional facts exist otherwise if court or tribunal exercised those powers without availability of those jurisdictional facts, even the assumption of jurisdiction by the court that such facts exists would not be supported and can be removed by a writ of certiorari.
In this case the question on which the jurisdiction industrial tribunal decided was whether the dispute is an industrial dispute or an non- industrial one? The Supreme Court held that if the industrial tribunal assumes to have jurisdiction over a non- industrial dispute then it can be challenged before the High Court and the High Court has the power to issue a writ of certiorari for the same question.power to issued an appropriate writ of High Court is not subject to any question.
- Violation of Procedure or Disregard of principle of Natural Justice
To set aside any decision given in violation of the principle of natural justice, writ of certiorari will be issued.
There are two principles of natural justice recognised by law:-
Audi alteram partem( hear the other side)– means that both sides must be given equal opportunity of hearing i.e both the side should be given full and fair chance to present their side of the case. Every judicial or quasi- judicial body must give equal and reasonable opportunity to the parties to make their representation. In other words it can be said that the party whose civil rights are affected in any proceeding before the court must have reasonable notice of the case he has to meet with and an opportunity of stating his case. This rule commands the authority deciding the case to give both the parties to the case an equal opportunity for presenting their case and to correct and contradict any relevant statement.
The collector of customs in this case passed an order of confiscation of goods without any notice and enquiry, The Madras High Court held that order passed by the collector was without hearing and knowing all the key points of the case and held that the same is contrary to the principles of natural justice and hence, Under Article 226 High court issue a writ of certiorari to quash the order of customs collector.
Supreme Court held that fundamental principle of natural justice states that both the parties to the case be given equal opportunity to make their representation but where it is expressly provided in the act a right to a personal hearing then the authority deciding the case must hear the case personally.
The procedure followed in the instant case whereby the Home Secretary, in charge of Transport, himself a party to the dispute, heard the objections and the Chief Minister decided them, violated those principles, and the order of the State Government approving the scheme, therefore,must be quashed.
Right of hearing does not include right of cross-examination statement was given in the case of State of J&K v Bakshi Gulam Mohammad.
Further a sub- rule to this principle states that every decision of tribunal must be accompanied with a reason for giving such decision whereas this rule does not apply in English Common- Law. and in India also this rule is not a universally established rule though in certain cases in rigidly followed. Where a rule or any provision is laid down in the for giving reasons then the judicial or quasi-judicial authority must obviously provide the same and give reasoned decisions in all the cases.
Usually reasoned decisions or duty to give reasons arises where the statute provides an appeal, review or revision against the order passed. But those reasons given by the tribunal or inferior court, would become easier for the court to make further decision and the reason will make give a clear picture of the authority given the decision.
Bias and interest– the second principle of Natural Justice states that no one should be a judge in its own case. Elaborating the statement means that the judges deciding the case does not have any interest in the case in which he providing his decision because it is a human tendency that a person can be wrong in his own eyes therefore biasness will emanate and aim for fair justice to all could not be reached.
So, there are two principles for governing this doctrine of bias and interest
- No one shall be judge in its own case.
- Just should be manifestly and undoubtedly seem to be done.
Any judicial entity as “subject to bias” when he is in favour or against any party to the dispute or where it can be assumed that bias exist then he should not take part in the decision. Also where there exists any pecuniary interest(or any other interest) of the person sitting to provide justice to all will become reason for his disqualification in giving decision in that case.
Reason given for this principle in the case of A.P. SRTC v Satyanarayana Transport by The Supreme Court is that while delivering judgement and providing justice to the parties, the person delivering the judgment must give his adjudication with a free and independent mind without any indication of bias towards either side of the case. Neither there should be any pressure on his that will divert him from delivering justice and mislead him while fulfilling the purpose of his seat.
In this case appellant was an advocate, who was alleged of misconduct for which bar council tribunal was appointed to make an enquiry, tribunal consist of 3 members, one of them was chairman who has given his Vakalatnama on behalf of the opposite party in proceeding under section 145 of CrPC and argued the case on the same date on behalf the the opposite party only and appellant act as a pleader to the proceedings.
The appellant raised the point that the tribunal was not properly constituted as the chairman of the tribunal conducting the inquiry of his case is arguing the matter on behalf of the opposite party and will clearly be assumed and believed that there must be some bias. The tribunal given its judgment on which appellant was convicted and therefore he filed an appeal before the supreme court for issuing a writ of certiorari to quash the judgment of tribunal.
Therefore after going through the facts of the case supreme court issue a writ of certiorari for quashing the decision of tribunal on the ground of violation of the principle of Natural Justice.
- Error of law apparent on the face of the record
It means that there is either a clear ignorance of law or the provisions of law are wrongly interpreted. An error of fact though may be grave but can’t be corrected by writ of certiorari. Power of high court to issue a writ of certiorari is a supervisory jurisdiction and while exercising such jurisdiction court is not entitled to act as an appellate court.
Error of law can’t be established if it was not self-evident and the same is demanding an argument or examination for establishing. In the other words error of law must be seen with open eyes and for establishing such an error there should be no need of any examination or further enquiry or argument in the case.
Error of law usually occur when there are two possible interpretations of the provision and the subordinate court has chosen one among them, the error occurred may be cross or patent. Whereas, this test afford satisfaction in majority of cases but not infallible. An error that might be considered by one judge as self-evident might not be considered by another due to which a clear and exhaustive definition of error can’t be put forth, each case has different facts and upon those facts only its determination must be done.
Facts- Respondent and appellant are business rivals. The transport appellate tribunal, mainly focused its decision on believe that the appellant had a workshop at one terminus of the route in question, and the respondent only has its business and workshop at intermediate station of the route, and issued permit to the appellant. Respondent moved an application to the High Court for a writ of certiorari on the ground that tribunal while making the decision failed to consider material evidence adduced by him as believing that he does not workshop at the terminus and on the same ground High Court quashed the decision of tribunal.
Whereas, on application to the Supreme Court it is found that the question raised in the case before the high court was a pure question of facts and The High Court has no jurisdiction to interfere in the matters decided on facts by the tribunal. If there is a failure in considering the material evidence by the tribunal then that will become eroor on the face of record.
It was held by Justice Gajenderagadkar that by a writ of certiorari error on the face of record can be correct but not an error of fact.
Cases where error of fact might be impugned on the ground of error of law:-
- Mistakenly refuse to admit material evidence, those can be admitted.
- Admitted evidences that are not admissible and the same influenced the findings of the case.
- There was a finding of facts without any evidence.
Judicial order passed by The High Court in respect of the proceedings pending before it can’t be corrected by a writ of certiorari. The supreme court also is not competent to issue a writ of certiorari for protection a person’s fundamental right. In other words a plea stating that the order passed by the court is affecting his or any person’s fundamental rights can’t be entertained by the supreme court in a petition under Article 32.
- A writ of certiorari can also be issued for declaring any act or ordinance unconstitutional. And therefore those acts or ordinance will be quashed and declared invalid.
- Case- S. Govindrao Menon v Union of India
Supreme Court held that Certiorari can only be issued by the High Court for quashing the decisions of subordinate court. But by this writ High Court can’t quash decision of other high court or of its own bench.
This case in respect of the judgment given in Surya Dev Rai v Ram Chander Rai. “order given in that case was that an order of a civil court can be amended in a writ jurisdiction under Article 226”. And in the present case court has expressed his disagreement in regard to this view.
insofar as correction of or any interference with judicial orders of civil court by a writ of certiorari is concerned. Under Article 227 of the Constitution, the High Court can not issue a writ of certiorari. Article 227 of the Constitution imposes power in the High Courts of superintendence which is to be very rarely exercised, only to keep tribunals and courts within the bounds of their authority.
Under this Article only, orders of both civil and criminal courts can be examined only in exceptional cases when their is continues miscarriage of justice has been occasioned. Such power, can not be exercised to correct a mistake of fact and of law.
In this case the distinction between the exercise of powers of Article 226 and 227 is made.
The alleged statement of surya case in the present case is that the judicial order passed by civil courts can be reversed or amended by the writ under Article 226 via exercising the power under a writ of certiorari. Therefore with this view appellant moved before the hon’ble court with a special leave petition contending that writ petition under Article 226 against a civil court order is not maintainable.
So with all the contentions of surya case and the arguments of the petitioner by referring other case like rupa ashok case( landmark case of curative petition)it was observed by the court that
- A well settled principle states that technicalities of prerogative writ in english law has no role to play in our constitutional law.
- Writ of certiorari can be issued by the superior court to an inferior court to certify its record for examination.
- A High Court can’t issue a writ to another High Court.neither from one bench of the High Court to another bench of the same court.
- As high courts are constituted as inferior courts in our constitution framework.
And with all the arguments and evidences it was held by the hon’ble court that-
- Judicial orders of civil court can’t be amended or reversed by a writ issued under Article 226 of the constitution.
- Also it was made clear that jurisdiction under Article 226 is different from Jurisdiction under Article 227
And the decision given in the present case by the court is contrary to the decision of Surya Dev Rai case hence the views made in that case was overruled by this case.
Writ of quo warranto have following features:-
- Object– prevent the person from wrongfully or forcefully holding any office or from continuing the office. By writ of quo warranto court has the authority to ask the holder of the office that by what authority he is holding the office.
Earlier in England this writ was issued by the king or on his behalf against any person who claim or take any office, or privileges of The Crown. And later this writ was misused by the authorities that led to substitution in proceedings by way of information.
Writ can be issued only if the office in question is a public office and any person claiming a writ must establish this fact first. Also it needs to be proved that the office in question is usurped without legal authority. Therefore that lead to an enquiry that the person claimed to be usurped the office is appointed legally or not.
Facts- respondent claim that appointment of appellant no. 2 is illegal as he does not fulfill the first condition mentioned in the advertised inviting application. In respect of which High Court issued the writ of quo warranto and held the appoint of respondent no. 2 (Anniah Gowda) illegal. Appellant raise an appeal before the Supreme Court. The decision of the High Court was held incorrect by the court, as High Court didn’t take into consideration the Degree of Master of Arts of the Durham University obtained by Anniah Gowda.
It was held that the High Court is correct in finding that Anniah did not possess a high second class degree of an Indian University but he did possess the alternative qualification of Master of Arts of a foreign University.
The writ of quo warranto acts as a weapon for judiciary to control the execution from making appointments to public office against law. It also protects a citizen from being deprived of public office to which he has a right.
- Public Office- any office in which there is some interest of public is known as public offices.
In this case the office of speaker of a legislative assembly is held a public office and writ of quo warranto can be issued for inquiring the appointment made.
It can also lie to question the appointment of a High Court judge.
In the given case writ petition was filed under article 226 before the Punjab and Haryana High Court by municipality requesting an order in the nature of quo warranto, enquiring the elected member of municipality, and on the inquiry it was found that 10 elected members of Municipality Board were appointed wrongfully and their seats were declared vacant.
Question of delay does not arises in presenting a petition for this writ in which person to function in certain capacity is challenged. Cause of action for a writ of quo warranto is continuing as if the appointment of an officer is made illegally then every day of his office will lead to a new cause of action therefore due to which petitions can’t be rejected on the ground of delay.
- Nature- Issuing a writ of quo warranto is discretionary in nature and it is not necessary in all cases the writ can be issued by the court. In case where the person is holding the office from a long time and there was no complain against him in the past and the writ of quo warranto is causing annoyance then High Court or Supreme Court in its discretion may refuse to issue the writ of quo warranto.
- Nature of office for which writ is claimed- Office in respect of which writ of quo warranto is claimed must be of substantive character and should not be of Private nature.
Writ petition was moved to the High Court by the petitioner against the members of the working committee of Bihar Raj Aryan Pratinidhi i.e is a private religion association. Court dismissed the petition on the ground that a writ of quo warranto can’t be issued against a private association.
- Who can apply
An application for writ of quo warranto can be made by a private person challenging the legality of appointment in public office even though the person may not have any personal interest in that or may not be aggrieved by such appointment directly.
Application for writ of quo warranto is not regarding any non- performance of duty by the authority appoint neither it seek to enforce any right. What is in question is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from that office. In other words the question dealt by this writ is whether the appointment made for the questioned public office is legal or not.
As any citizens apply for a writ of quo warranto, may not be having any personal interest in the matter, there he possesses the position of a relater.
- Conditions- Before issuing the writ of quo warranto certain conditions needs to be fulfilled:-
- Office in question must be of public nature
- It must be of a substantive character
- Office must be of Statutory Nature
- Actual occupancy- the person holding the public office must have been in the actual occupancy of the office and assert his right to claim it.
- Alternative Remedy
If there is an availability of any alternative and effective remedy to the applicant, the court may not issue writ of quo warranto and assign her to seek for that remedy. Therefore it can be concluded that a writ of quo warranto can be refused on availability of an alternative remedy by making an election petition available to the petitioner/applicant. But in case the objection raised by the petitioner falls outside the statutory remedy then alternate remedy can’t become a ground for rejection for a writ of quo warranto.
Prerogative means an extra privilege. In English Law, prerogative means a discretionary power that exceeds and is unaffected by any other power; the special prominence that the monarch has over and above all others, as a consequence of his or her sovereignty.these writs are especially associated with the king.
All the five writs we have discussed above are known as prerogative writs. Earlier these writs are known as prerogative writs whereas, nowadays they are known as extraordinary remedies.usually these writs are issued on the strength of inner power of the court and to grant justice to all. These writs have been issued as a remedy in case of any violation of fundamental rights of the citizens.
When the prerogative writs originated it was said that writs are peculiar to the king himself and this theory is valid in certain obsolete and obsolescent writs-
Writ de non procedendo rege inconsulto, as “not to proceed to judgement if the King has not been consulted.” The purpose of this writ is to quashes any order which was passed without the consultation of king
- Scire facias a latin maxim meaning make known this writ was issued for the purpose of cancelling the royal grants, charter and franchises. Now this writ has almost become obsolete and was abolished by the crown proceedings act, 1947.
- Ne exeat regno literal meaning of this latin maxim is that “let him not leave the kingdom”. This writ is issued by the king to restrain a person from leaving the kingdom. Lord Eldon in case of Tomlinson v Harrison (1802) 8 Ves. 32 at 33 called it a ‘high prerogative writ’ which was applied on the cases of private rights always with great caution and jealousy. Nowadays this writ is issued only under the provisions of section 6 of the debtors act, 1869.
In history there were only four prerogative writs of habeas corpus was not be treated separately. So, before going into the details of each writ there were certain characteristics of the writs as follows:-
- Those writs were not writ of course
- Court has discretion in giving award of the writs.
- These writs were awarded prominently out of the court of the king’s bench.
- In common law these prerogative writs would go to exempt jurisdictions, to which the king’s writ normally does not lie.
Certiorari was a royal demand for information by the king demand necessary information that is to be provided to him. As the king wishes to be more informed of allegations or extortion made by his subjects. It is one of the king’s own writs which was used by him for general governmental purposes.
From the late 14th century till the end of the 17th century following purposes were being served by the writ of certiorari-
- Supervised the proceedings of inferior courts of specialised jurisdiction.
- Writ is issued for obtaining the information for any administrative purpose
- To bring before the court of common-law, judicial records and any other formal documents. Judgments of inferior courts were obtained through this writ
- Writ was also issued for removing the indictments of particular interest.
After 1660’s writ of certiorari acquired a new importance by creating new administrative duties on justices and ad hoc authorities.
In the Leading case of Groenevelt v burwell(1700) 1 Ld. Raym. 454 at 459 it was held that the writ of certiorari would lie to review disciplinary decisions by censors of college and C.J. Holt said that all the proceedings can be returned by writ of certiorari and same to be examined before the supreme court or higher court.
Prohibition is one of the oldest writs whose primary function was to limit the jurisdiction of inferior courts. Later under common law courts it was used as a weapon in their conflicts of court of chancery(court of equity) and admiralty(maritime courts). Disobedience of writ of prohibition was conceived as contempt of crown.
This was a modern case on prerogative writs and in that case it was said that grounds for grant of prohibition is not that the individual applying for the same has suffered the damage or not but whether the royal power infringe upon by reason of the prescribed order of the administration of justice having been disobeyed. That implies that a complete stranger could also have the writ.
Writ of Mandamus that appeared in earlier law books was not concerned about private grievances at all. Till 1578 there was no case found that was reported, and serving a purpose similar to the modern writ. History of mandamus begam with Bagg’s case (1615) 11 Co.Rep. 93b it was held in this case Bagg, a capital burges of plymouth, was unjustly removed from his office by the head of the town (Mayor) and commonalty, and they were ordered by the court to restore his remove until they showed the court a good reason for their conduct. Both of them failed to satisfy the court for their conduct and therefore, writ of mandamus was issued to restore Bagg.
In Montagu’s words, prerogative writs were the one which concerns about the king’s justice to be administered to his subjects and the king must have an account of all his subjects those were imprisoned. Habeas corpus was considered as the most beneficent remedy it value was enhanced during the 17th century as during that time struggle for the constitution was going on. Writ of habeas corpus provide a beneficial remedy.
In 1759 all four writs were collectively designated as prerogative writs for the first time on record.
Before manfield no one has tried to classify writs as a group but the relationship between the writs exists at least a century before.
In India only the Supreme and High Courts have writ jurisdiction and judicial review of all the government activities by these courts are known as writ jurisdiction. Writ jurisdiction is exercised to control the vast discretionary power of administrative authorities as those powers become subjects in the absence of guidelines for exercising those powers. To ensure that “rule of law” exists in all the government action, there arises a need to control the discretionary powers of administrative authorities. Judicial review of administrative actions is important to ensure that all the actions taken by the administrative authorities are legal, rational, fair, just and as per the provisions of law.
Article 32 and 226 of Indian Constitution provides power to Supreme Court and High Court simultaneously of judicial review of administrative actions and also designed for the enforcement of fundamental rights, in the form of writs.
High Court (Article 226)
Article 226 of Indian Constitution empowers The State High Courts to issue a direction, order or writ for enforcement of fundamental rights, or for reviewing administrative actions. This power can be used by the High Court not only for enforcement of fundamental right but also lie for non- fundamental rights. The power conferred to every High Court under Article 226 to issue writ shall not be in derogation to the power conferred under clause (2) of article 32 on the Supreme Court.
In this recent case of March 2019, Supreme Court has tried to define the scope of Article 226 of the Indian Constitution.
It was held that-
- Administrative actions are subject to judicial review under Article 226 on the ground of illegality, rationality, want of power or irregularity in the procedure.
- The decision of the administrative authorities may also be quashed on the of illegality or there is an error of law on the face of the decision by the High Court under Article 226.
- Judicial review under Article 226 of Indian Constitution, 1950 not only directed against any order or decision but also directed against a decision making process.
- A further appeal does not lie before the court exercising the power under article 226 neither does it passionately adjudicate disputed question of facts.
- The remedy under Article 226 of Indian Constitution,1950 is available only when there is a violation of some statutory duty on the part of the statutory authority.
- While exercising its power under Article 226 High Court can only either annul the order/decision or quash the same whereas, under Article 227 High Court apart from annulling the proceedings, can also substitute the impugned decision by the decision which the inferior court should have passed.
- Exercise of Article 227 Of Indian Constitution,1950 is restricted to only those cases where there is a grave failure in fulfilling the duty and there was immoral abuse of fundamental principles of law.
- In the case of purely contractual rights writs under Article 226 can’t be invoked.
- While exercising its power under Article 226 High Court can’t proceed adjudication upon affidavit or on questions of facts.
- Lastly its is said that power of Judicial Review Conferred upon High Court under Article 226 is a basic essential feature of Indian Constitution and legislature including Armed Forces Act,2007 also can’t overrides the jurisdiction of the High Court under this section.
Supreme Court (Article 32)
Under Article 32 of Indian constitution, 1950 any person can move to the Supreme Court of India for enforcement of his Fundamental Rights conferred under part III of the Indian Constitution.
Article 32 empowers Supreme court to issue a direction, order or writ of any of its five types for enforcement of fundamental right.
Writ can also be issued on any application if such application include violation of social welfare laws. As it was held in Bandua mukti morcha case by the Supreme Court.
Though supreme court jurisdiction to issue a writ under Article 32 is less wider than that of High Court conferred under Article 226 because Supreme court can only issue writ for protection of fundamental rights of the person seeking protection whereas, High Court can also issue writ for protection of any legal right but for that High Court has Discretionary power.
Writ Jurisdiction of High Court
Public Law Remedy of Immense Scope
The power conferred under article 226 of the constitution empowers the High Courts to issue to any person or authority any order or writs in form of habeas corpus, certiorari, mandamus, prohibition and quo warranto for enforcement of rights conferred under part III of Indian Constitution and also for enforcement of any other legal right. These five writs in English Law are known as Prerogative Writs, as they are originated from the king’s prerogative power of superintendence over his subjects.This power can also be exercised against the legislature in appropriate cases.
In India before the commencement of the constitution, only three chartered were competent to issue the writs were High Court of Bombay, Calcutta and Madras and that too within some specified limits and the other high courts could not exercise this power at all. But now all the high court has the same power to grant the remedy via issuing prerogative writs.
Language used in article 226 and in article 32 is very broad and does even provides for any rigid procedure. The power not only extent to issuing of writs but also extends to issuing of direction, orders and writ also. The scope of prerogative writs is wider in India than England.
In this case, petitioner was an organisation addressed the issue by a letter stating that there are bonded labour practices being followed in the country before justice Bhagwati. Treating the letter as a writ petition and appointed a commission for making an enquiry into the allegations made. After the enquiry commission pointed out certain points in its report such as-
- Dusty atmosphere, very difficult to breathe in it.
- Forced labour, workmen were not allowed to leave work
- No pure drinking water is provided to workmen therefore, they are forced to drink dirty water.
- No proper shelters were provided to workers
- Many of them were suffering from chronic disease
- Whenever any labour got injured during work no compensation is paid to him
- No medical facilities for workers and their families neither there were any schooling facilities for children of workers.
These were the certain points highlighted by the commission in its report of inquiry. Whereas, respondent took the defence that article 32 can’t be applied in this case as there was no violation of fundamental rights of referred petitioner neither the letter which was addressed to the court be treated as a writ petition. In the proceedings of article 32 court does not have power to appoint commission and many other contentions which were raised by the respondent.
Court rejected all the contentions of respondent and held that if any citizen of the country brings an application on behalf of the large number of people subjected to any cause the same complaint or application can be treated as a writ petition. Moreover, it was held that when the petition contain such crucial points then it can’t be rejected on the ground that it is not violative of fundamental right of workmen.
Interpretation of Article 21 given in Mullen’s case state that every individual of this country has the right to live with dignity and free from exploitation. And this article has its roots in Directive Principles of State Policies Article 39 clause (e) and (f) and article 41 and article 42. According to these articles, state is obligated to ensure that there is no violation of fundamental rights of any person, especially when it comes to weaker section of the society.
It was also held that jurisdiction under Article 226 exercised by High Courts is also a new constitutional jurisdiction and conferred in similarly wide manner as the jurisdiction under article 32 over Supreme Court is conferred.in facts jurisdiction of the High Court is much wider under article 226 as high court are required to exercise jurisdiction for enforcement of fundamental as well as legal rights. Also for the protection of any right created by statute conferred on poor and disadvantaged people of contrary that require protection vigorously as fundamental rights.
In case of Babubhai Jamnadas Patel v State of Gujarat it was held that the High Court cannot order police investigation merely on the basis of suspicion but in combination with article 227, High Court can order for an investigation to be done for its smooth working and for getting a conclusion on time without any delay.
Territorial Extent of Writ Jurisdiction
Clause (1) of article 226 provides a two folded territorial limitation on the power of a High Court to issue writs.
- Writs issued by the high court must lie in its territorial limits i.e a High Court of Andhra Pradesh can’t issue a writ for protection of a right of person permanent resident. And the power to issue writ by the High Court must be exercised throughout the territory to which it exercise jurisdiction.
- Writ can only be issued by High Court against the authority or person within the territorial limits of the High Court i.e. High Court of Punjab and Haryana can’t issue a writ against the chief minister of Uttar Pradesh.
These two contentions on territorial limits of High Court makes it clear that the jurisdiction to issue a writ can either be decided by residence or location within those territories.
In this case respondent filed an application to issue a writ under Article 226 before the Madras High Court for restraining the election commission from inquiring into his alleged disqualification for membership of the assembly. Permanent office of election commission is situated in New Delhi.
It was held by the Supreme Court on appeal before it that High Court of Madras has no power to issue Writ against Election Commision as its permanent office is located in New Delhi. It was observed by the court that mere functioning of a tribunal or authority, having permanent office located elsewhere is not sufficient to create High Court jurisdiction under Article 226 to issue writ. Neither the cause of action arose in jurisdiction limits will be enough to create jurisdiction on High Court regarding the matter to issue writ under Article 226.
Whereas, after the 15th amendment of Indian Constitution in 1963 it was permitted that cause of action can become a ground for arising jurisdiction to issue writ under Article 226 by the high court in whose jurisdiction cause of action has partly or completely has taken place or arises. Mere declaration on the ground that issue may be more effectively dealt by other High Court can’t be justified.
Power conferred under article 226 confer discretion on High Court. High court will only exercise jurisdiction in accordance with judicial considerations and well established principle of laws. Exercise of jurisdiction on any irrelevant consideration will make such an order or writ invalid.
In this case of 1993 High Court had earlier quashed the FIR even though the said F.I.R discloses the offence committed by the accused, on the assumption that it has the power to quash the F.I.R under Article 226.whereas, it was contended by the Additional Solicitor General that the F.I.R cannot be quashed if the allegations made in it do make a prima facie case. Therefore it was held that high court has the power to quash a F.I.R only in cases where the F.I.R prima facie does not disclose any offence being committed and also there are certain other points mentioned in Bhajan lal case.
While exercising its discretionary power High court can pass an order in public interest and in terms of equity and the court can also refuse to provide remedy if it was found that petitioner seeks to invoke jurisdiction with wrongful or fraudulent intention for any unjust gain or for securing any dishonest perpetrator.
Discretionary Remedy provided under this article is for doing justice and correcting injustice and not for any other purpose.while exercise its discretionary power High Court must follow the well recognised principle of law.
In case of public interest Litigation court can even go beyond the case and can also grant remedies beyond what is prayed by the parties.as in the case of Padma v Hiralal Motilal Desarda writ petition appearing to the one in public interest, challenging the procedure adopted by the respondent for disposal of the land. High Court has extended its jurisdiction under Article 226 via order of enquiry on certain questions of facts by scrutinizing governmental files and coming to a conclusion that there is a huge irregularity in the matter of allotment of land and found that the policy formed was erroneous and cause injustice to public interest.
Power conferred under Article 226 is supervisory in nature as the High Court does not act as a court of appeal while exercising its power under Article 226. The only work of the High Court is to examine whether the challenged action is lawful or not. In respect of lawfulness also law is more clear on the point of actions affecting and exceeding the jurisdiction and clear on supervisory power of High Court under Article 226. While exercising its supervisory power court can’t go into the merits of the controversy as an appellate court can.
In case of TISCO Ltd. v Union of India, 1996
In the given case it was held by the Supreme Court that while exercising the power under this Article court can not interfere in the policy decisions of the government unless their decisions or clearly opposing the constitutional laws.
Principles for Exercise of Jurisdiction
There are eight principles which regulate the exercise of jurisdiction under Article 226:-
As we have discussed above that Article 226 provides for a discretionary remedy and high court has the power to refuse the grant of any writ if its is satisfied that the aggrieved party have adequate alternative remedy. Remedies provided under this article can’t be used as a substitute for other remedies. So, therefore it can be said that a writ under Article 226 can’t be issued by the High Court in the case where there exists an equal, efficient and adequate alternative remedy unless there is any exceptional reason for dealing the matter under Article 226.
Where there is a right to appeal available before the person seeking writ jurisdiction then in such cases High Court can refuse to exercise its writ jurisdiction the ground of availability of efficient alternative remedy
In several cases different High Courts refused to issue writ where the person seeking for writ has remedy available, like in the case of Firm Hari pd v STO AIR 1959 All 246 Allahabad High Court has refused to issue a writ where the aggrieved assessee had a remedy against assessment made by sales tax officer by way of appeal to the appellate authority.
Moreover in case, where an alternate remedy which is available before the applicant is not adequate then, the High Court can’t refuse to issue writ because it is clear from the various judgments of Supreme court that High Court can only exercise its discretionary jurisdiction and refuse to exercise its writ jurisdiction only when there is availability of equal, adequate and efficient alternative remedy.
In this case petitioner was a member of the Municipal Board and he was removed from his position on Objectionable grounds under section 40(3)of Uttar Pradesh Municipalities Act, 1916 elections for fresh appoint were likely to be conducted within a few months and the petitioner though has an alternative remedy available as to file a suit in civil court but the final decision in civil case could not be obtained before election due to large number of cases listed in those courts and that will debar him from contesting elections.
Therefore, Allahabad High Court held that the alternate remedy available before the petitioner is not an adequate one hence, writ jurisdiction can’t be refused and he can seek relief by way of writ petition under Article 226.
Provision of Limitation Act does not apply to a petition under Article 226 neither there is any specified limitation period for filing a writ petition in Indian Constitution also or in any other law. Whereas, exorbitant delay in filing the petition can be an appropriate ground for refusing to grant relief by The High Court. And if the delay is explained properly to satisfy the court then it can’t be refused by the court on that ground.
It was a well established principle that a writ of certiorari can’t be issued in case there is negligence on the part of the applicant to assert his right.
Suppression of facts
If the applicant while filing a writ under Article 226 is aggrieved of the suppression of material facts in his application are tried to mislead the court, then the court should thereby reject his application and such refusal be considered as a refusal on merits.
The petitioner in this case has deliberately given misstatement of facts in his petition application with an intention to mislead the court and on the same misstatement obtained a rules of nisi prohibiting the state from taking certain actions. Misstatement by the petitioner is itself a sufficient ground for refusing the writ petition.whereas, a mere mistake in the name of the parties by the person filing the petition does not affect its maintainability.
If the applied writ is not serving any fruitful purpose then High Court in its discretion reject the application of the person seeking the writ on the same ground.
In this case, the applicant applied for a writ of certiorari against the order of Revenue Minister of State. The impugned order was directing the collector to make references under section 8 of the Land Acquisition Act, 1894.
It was held by the Rajasthan High Court that the Revenue Minister had no jurisdiction to make such impugned order. In this case the actual order was not inferred with, if the party had come before the high court then it would only be given the relief which was already given to him by the Revenue Minister.
In this case the Supreme Court has refused to issue the writ on the ground of futility and held that during the pendency of the proceedings validity period of contract has expired.
Disputed question of facts
Proceeding of Article 226 is of Summary nature as it is seen in the above referred case “purushottam chandra ” that there is an availability of alternate remedy but the case needs to be decided early and fast therefore, petitioner seek remedy under Article 226. Therefore, proceeding under this Article are not suitable for making any arguments on questions of facts.
Petition under Article 226 is filed by Ramani Kanta in his petition he pleaded that he was the Founder-Secretary of the Governing Body of Bholanath college at Dhubri. And his two wards were also the students of the same college. This college was governed by this governing body only and its principle is also the ex- member of this body and at present, he is also the joint secretary. Members were elected from the teaching staff and from the guardian for the students.
The Executive council of Gauhati university in the meeting held on july 1950, held that governing body of all non-law colleges in the State of Assam must be re-organized. And by an order directed all the principles of non-government colleges to re-organize their government body.whereas, governing body of Bholanath college could continue to function till 1952.
It is urged that direction given by Executive Council to re-organisation of governing bodies of non-governmental colleges constitutes infringement of the fundamental rights of the governing body of Bholanath college on Linguistic minorities under article 30 clause(1) of Indian Constitution, 1950. Also it was argued that the scheme introduced by the Executive Council is ultra vires of the university.
So, the main question which was raised in this case was that, whether the petitioner, who was discharged from the service, was made permanent or not is totally a question of fact and therefore on that ground by exercising its discretionary power, High Court refused to interfere in the case via a writ under Article 226. In this case no question of jurisdiction of the High Court was raised it was just a matter of discretion of High Court to exercise its power given under Article 226.
Perpetuation of illegality
In case of A.M. Mani v Kerala SEB, AIR 1968 Ker 76 it was held that writ under Article 226 will not be issued if its effect is leading to a continuation of some illegal order.
Dismissal of limine
If it is found by the High Court that the claims made in the petition are frivolous, vexatious, reckless or Prima facie unjust, then the court may refuse to entertain such claims on the ground of its being unlawful.whereas, dismissal in limine without a speaking order will not be considered as a proper dismissal. High Court must have to pass a reasoned orders.
Joinder of parties
Writ under Article 226 ought not to be heard by the High Court if the person getting affected by the decision of the High Court is not made a party to the case. It was stated by the Supreme Court in case of Prabodh Verma v State of U.P that In cases where the number of people affected by the decision is too big then those should be represented by any such person who has the capacity to represent them all.
Res judicata means the matter already decided.
So, there are certain essential conditions which are required to be fulfilled for applying this principle of Res judicata according to section 11 of civil procedure code
- The matter in which this principle is applied must be similar to the previous matter.
- Between the same parties
- Parties must be adjudicating under the same title in both the case
- Court decided the earlier case was competent to try it.
- The matter in issue was heard in earlier case.
In the case of Daryao v state of U.P. it was held by the Supreme Court of Indian that once the matter has been “heard and decided” the High Court under Article 226 further the writ under Article 32 is barred by the principle of Res Judicata and therefore could not be entertained.
Object of this doctrine
- No man shall be held before the court twice for the same cause(nemo debet bis vexari pro una et eadem causa)
- To put an end to a litigation, in the interest of state (interest reipublicae ut sit finis litium)
- Judicial decision once delivered must be accepted as correct (res judicata pro veritate occipitur)
Therefore, these general principles of the doctrine of res judicata applies to writ petitions under Article 226 and 32.
It says that when the same question has been decided by the High Court under Article 226 and conclude the matter with an order that no relief is granted to the petitioner then such decision of the High Court act as res judicata in subsequent petitions for similar relief.
In this case it was held by the Supreme Court of India that even a wrongful decision of the High Court on question of law relating to the facts in issue will operate as res judicata. Only condition requisite for applying the principle of res judicata is that the matter adjudicated must be decided on the merits of the case. If the matter was dismissed in limine then the principle of res judicata will not bar filing of fresh petition. For example, a non- speaking order of dismissal will not operate res judicata.
Principle of res judicata will not apply on the writ petition of Habeas corpus under Article 32. Therefore, a writ petition of habeas corpus once dismissed by the High Court under Article 226 can also be filed under Article 32 Before the Supreme Court on the same facts but in the same High Court as a successive application is allowed.
It was held by the Supreme Court that power of Special Leave to appeal before the Supreme Court under Article 136 does not operate as res judicata for a writ application under Article 226. It was also observed in this case that refusal of special leave does not come stand in a way of petitioner a principle of res judicata file filing a writ petition under Article 226 before the High Court.
Relief cannot be barred by the statute
Earlier it was believed that Power conferred under Article 226 can’t be taken away from the High Court by any way other than amendment of the constitution. But the power of judicial review can’t be taken away even by amendment because judicial review is the basic feature of our constitution and basic feature of the constitution not subject to any amendments.
In this case, exclusion of High Court jurisdiction in cases of Article 323-A and Article 323-B was invalidated by the Supreme Court, and in Surya Dev Rai v Ram Chander Rai case it was held that section 115 of civil procedure code can not impose any limitation on the powers of High Court conferred under Article 226 and 227.
Writs against the legislature
Writ of mandamus, certiorari and prohibition can’t be issued against legislature. Whereas, writ of habeas corpus can be issued against a legislative body. Under Article 226 if any person is detained by the order of legislature in any case then the aggrieved person may move to High Court for a writ of habeas corpus in case if he can prove that his detention is wrongful and the order given by legislative body was mala fide. In India no legislative body can claim immunity by a writ jurisdiction of High Court by issuing an unreasonable warrant.
This matter is entirely of executive branch of the government in regards to the introduction of particular legislature. And in this case, it was held that a writ under Article 226 can be issued against any legislative body for enforcing any legislature in this case only it was also declared that it is a settled point that court under Article 32 and Article 226 can treat a letter containing any public issue as a writ petition .
Who may apply
Ordinarily, a person whose legal rights or any other legally protected interest are affected may approach to the court under Article 226 for seeking remedy. Although this article does not specify any person who can approach the court under it but, as the article provides a public remedy therefore,the provision locus standi as applied in Article 32 will be applied. It is not required that the person should wait till the actual infraction of his right; door will open for a person to seek remedy under Article 226 as in when there arises an imminent threat to such infraction.
Existence of right would be a sufficient condition for exercising jurisdiction under this section, subject to certain conditions:-
- For a writ of habeas corpus under certain circumstances an application for writ can be filed by a friend or relative of the person whose arrest has been made.
- An application for writ of quo warranto it is not necessarily required that the person seeking for remedy have suffered some personal injury .
For example- i. a university professor can seek remedy under Article 226 for any illegality even though he is not affected by that.
- A student of some college completed his course can also apply for writ petition for the illegalities followed by that college or any person known about those illegalities can file a petition before the court for seeking redressal.
To whom writs may be issued
Writs can be issued against any person or authority included in each case by the High Court under Article 226 and Article 32 by Supreme Court. The required condition for issuing writ under Article 226 is that the case must fall within the territorial limits of the court. Writs can only be issued against any person or authority engaged with some public work that is to say a writ under Article 226 can’t be issued against a private individual excluding certain exceptions in respect of issuing habeas corpus or mandamus.
Difference between Certiorari and Prohibition
The Supreme Court has given the difference between the two writs in the case of Hari Vishnu Kamath vs. Ahmad Ishaque
It is both preventive and curative in nature
Preventive in nature.
Issued to quash the order passed by the inferior courts or tribunals in excess of jurisdiction.
It prevents inferior court or tribunal to decide any case in excess of jurisdiction
Issued once the decision is given
Issued before the order has been passed and is still pending before the inferior authority.
- Both can’t be issued against legislative bodies and private individuals or bodies.
- Both are issued to correct the error of jurisdiction.
Difference between Mandamus and Certiorari
Difference between the two can be easily drawn out in the case of Union of India And Anr. v Elbridge Watson by Calcutta High Court.
Issued to executive authorities or government machinery, bound to do some act.
Issued to inferior courts, tribunals or to any judicial or quasi-judicial body.
Can’t be issued to legislative bodies except in cases where any public interest is involved.
Also can’t be issued against legislative bodies but there is no exception to that condition.
Writ is issued in the form of a command
Issued as a direction for officer or judge of an inferior court or tribunal.
Can be issued against statutory bodies only having administrative functions.
Can’t be issued against such statutory bodies.
Command given to government, court, corporation or public authority to do or not to do some specific act.
It requires records of the proceedings of some cause shall be transmitted to superior court.
A writ petition is a filing that an aggrieved party makes with an appeals court in order to get speedy review his case which was already tried by an inferior court.
A writ petition is a plea before any higher court for extraordinary review. Person seeking writ petition requests the court to intervene in the decisions of inferior courts.
A writ petition can be filed by any aggrieved person whose Fundamental Rights are violated under article 226 before the High Court or under Article 32 before the Supreme Court. Writ jurisdiction of the High Court is wider than that of the Supreme Court as it extent to grant remedies in case of violation of any other constitutional or legal right also.
Writ petition can also be directly filed to the High Court without approaching the lower court first.
There are five types of writs named- Habeaus corpus, Certiorari , Mandamus, Prohibition, Quo warranto. All of them have already been discussed above in detail.
Who can file a writ petition
Any person whose Fundamental Rights or any other legal or constitutional rights have been Violated by the order of inferior court.
Curative means possessing the ability to cure and petition means making a written request for judicial action before the court. Therefore, the literal meaning of curative petition can be interpreted as “petition filed before the authority having ability to cure the miscarriage of justice”. It is a new concept in Indian legal system and was evolved recently in the case of Rupa Ashok Hurrah v Ashok Hurrah and Anr. in the year 2002.
It is a last judicial resort available before a person for seeking remedy. Curative petition can be against any judgment or decision of Supreme Court. Under Article 137 Supreme Court has the ability to review its own Judgments, subject to some rules made under the provisions of Article 145 as given under the provisions of article only.
Question involved in this case was, whether the person whose review petition has been denied by the Supreme Court had any other relief available before him against the final decision of the Supreme Court.
Answering to the question Court held that in order to prevent abuse of procedure nad law and cure the gross coducted by miscarriage of justice, the Supereme Court has reconsidered its Power for this purpose, and therefore, discovered this new concept of curative petiton.
There are certain conditions specified by the court to entertain the curative petition in India.
Procedure for Filing Curative Petition
- Petitioner must make a declaration stating that the grounds specified in curative petition were also mentioned in the review petition
- Review petition filed earlier must have been dismissed by circulation.
- Petitioner have to prove that principles of natural justice were violated and it was believed by him that judge has delivered that judgment with bias intention.
- Certification of the above mentioned points must be done by a Senior Advocate(senior counsel or State counsel).
- Curative petition filed by the petitioner must have to be circulated to three senior most judges
- Along with those who delivered the impugned order(if available).
- If the petitioner’s plea lacks in merits then it can be the discretion of the court to impose “exemplary cost”.
Unlike other review petitions, curative petition can’t be decided in an open court. For deciding a curative petition in an open court judges must have to first decide that there are some merits in the case and therefore, those must be decided in the open court.
Before the decision of this case, a question that always strike to my mind is that, whether the supreme court can issue a writ to itself or not? Before the Judgement of this by the court it was believed that there is no provision for intra court appeal before the supreme court and therefore this legal doctrine ‘actus curiae neminem gravabit’ meaning act of the court shall prejudice no one, was followed.
In this case petition was filed by Shoukat Hussain Guru under Article 32 for writ of Habeas corpus with the contention that detention of petitioner is violative of Article 21 of the Constitution.
Review petition before the Supreme Court was dismissed on 22nd september 2005 and the person aggrieved by such dismissal filed a curative petition before the court. Contentions raised by the petitioner in his petition was that he was detained under section 123 of Indian Penal Code(herein referred to as IPC) for which he was not charged. His contention was not only regards to the point that the court has given a decision without jurisdiction but also in regards to that, such a decision was given totally in contravention of the principle of Natural Justice as he was not provided with the opportunity to defend himself for an offence under section 123 of IPC. Therefore, the decision is liable to be set aside.
prerequisite conditions mentioned in Landmark judgement of “Rupa Ashok” that are required to be satisfied to proceed with a curative petition were not fulfilled by the petition as it is required that the curative petition must be placed before the three senior most judges and also to the judge who initially delivered the judgement and after due consideration by all the judges curative petition be petitioner was rejected on January 2007.
As there is no time limit specified for filing a curative petition and also it is more clearly stated that filing of curative writs will not be governed by the provisions of the Limitation Act. It is only specified that the petition must be filed within a reasonable period. Whereas such reasonable period is not defined anywhere. Whereas, order XL in part VIII of Supreme Court rules, 1966, state that review application by a petition shall be filed within 30 days from the date of judgment sought to be reviewed.
Difference between review petition and curative petition
For which decision petition can be filed ?
Decision of the High Court and Supreme Court can be reviewed.
Filed only against the decision of the Supreme Court. It is the last slot available before an individual for seeking redressal
Before which court?
Review petition is filed before the same court and goes to the same bench of judges that delivered the impugned judgment.
petition is filed before the same court but not before the same bench of judges, who already reviewed the judgment delivered by them.
Under which article petition can be filed?
Article 137 impose power on Supreme court to review any of the judgment or order pronounced by it.
Filed under Article 137 only subject to the rules made under Article 145 but after the case once reviewed by the judges delivered the judgment or order.
When it can be filed?
Review petition can be filed subject to the rules made under article 145.
After dismissal of review petition on such petitions can be filed subject to certain conditions specified in the “Rupa ashok case”.
According to supreme court rules, 2013 review petition needs to be filled within 30 days from the date of judgment or order.
No time limit specified for filing a curative petition neither in any rule nor in any provision of law.
There is no prerequisite requirement for filing review petition. Only there are certain grounds specified under law that need to be fulfilled for filing such petition.
Prerequisite requirement for filing this petitionis, a certification from three senior advocate stating the all the requirements for filing a curative petitions are fulfilled.
How to file a writ petition in High Court
Writ petition in the High Court has to be filed under Article 226, no matter, whether it is a criminal or criminal case. Procedure for filing a writ petition before the High Court is simple.
Steps to be followed:-
- A writ petition must contain supporting affidavit, facts of the case, question of law, annex the documents that the petitioner wishes to rely upon to substantiate his case, along with notice of motion to the other party and lastly prayer.
- This petition is filed at a filing counter in the High Court.
- In ordinary cases before issuing notice to the opposite party court first hear from the petitioner his side of the case.
- Incase after hearing the case if it was found by the court that there are no relevant ground for admitting the case and rejected the petition on the first hearing than that will be an end of the whole endeavour.
- On the other hand once the case is admitted by the court, notice to the opposite party will be send, based on the motion of notice specified in the petition.
- Admission of petition does not imply that petition is worthy of relief prayed.it just mean that court found the petition worthy for hearing.
- Petition after admission can still be dismissed at any time by the court.
- Curt fees is subjective and there are always alternate dispute redressal fora available in case the petitioner is not capable of appointing a lawyer.
How to file a writ petition in Supreme Court
Writ petition before the Supreme Court is an application for enforcement of Fundamental Rights under Article 32 of the Indian Constitution, 1950. Point that is to be kept in mind before filing a writ petition before the Supreme Court is that the subject matter of the petition must be related to more than one state or the decision of which should have relevance in more than one state, because petition containing subject matter related to one state only can be filed before the High Court under Article 226 of Indian Constitution.
General Procedure for filing this petition before the Supreme Court:-
- Every citizen of the country has right under Article 32 to file a writ petition for protection of their fundamental rights.
- Writ petition under Article 226 shall be filed in writing.
- It the petition involved substantial question of law regards to interpretation of the constitution then it should be heard by Division bench of not less than 5 judges
- On the other hand if the case does not involve any substantial question of law may be heard by division bench of less than 5 judges.
- All the interlocutory application and miscellaneous applications filed along with writ petition can be heard and decided by division bench of less than 5 judges.
- No court fees shall be imposed on writ petition of habeas corpus or any other petition arising out of criminal proceedings.
Procedure for filing a writ petition of habeas corpus-
- Writ petition of habeas corpus must be accompanied by an affidavit of the person whse detention has been made stating that the petition has been made at his instance along with that mentioning the circumstances of his restrain.provided that in case the person who has been detained is unable to make affidavit owing his restrain then the petition must be accompanied by the affidavit of any other person acquainted with the facts of the case, specifying the reason why the person detained, unable to make his affidavit.
- Petition shall also state that weather the petitioner has moved to the concerned High Court before for the same relief or not and if yes than what was its result.
- For preliminary hearings petitioner must be produced before the court, and after that if the court is of the view that a prima facie case for granting petition is made out, then the court must issue rule of nisi for calling the opposite party to be present on the next date fixed by the court and provide the court with the inferences that why such order should not be passed and the person illegally detained must also be produced on that day before the court for proceedings according to the law.
- On the set date if no cause is shown by the opposite party then, court must pass an order for releasing of the petitioner at liberty.
Procedure to be followed in case of other four writs or for any order or direction;-
- These writs must be set out in the name and description of the petitioner, stating the nature of infringed fundamental rights, relief sought to get and the grounds on which such relief is sought along with an affidavit of petitioner verifying the facts of his case.
- Atleast three copies of this petition must be filed in the registry.
- Petition shall also state that weather the petitioner has moved to the concerned High Court before for the same relief or not and if yes than what was its result.
- On the admission date of petition petitioner must be present before the court for a preliminary hearing and for order to issue notice to the opposite party, on the same day if the court finds that there is no infringement of any fundamental rights guaranteed by the constitution or found any other reasonable ground for rejecting the petition, the court shall dismiss the petition and on the other hand any reasonable ground id found then issue rule of nisi calling upon the respondent to appear on the next fixed date.
- After receipt of the notice, respondent must file his reply within 30 days from the date of receipt of the notice or before 2 weeks from the date appointed for next hearing whichever is earlier or within any other time period specified by the court.
- Upon issuing the rule of nisi the court has power to grand ad- interim relief to the petitioner in the light of justice as it may be required.
This is the whole procedure followed by the writ courts to lodge a writ petition by any person whose fundamental rights are being infringed by any judicial or quasi- judicial order, direction or judgement.
Difference between Writ Jurisdiction of the High Court and Supreme Court
Writ Jurisdiction of Supreme Court
Writ Jurisdiction of High Court
Given under Article 32 of Indian Constitution.
Given under Article 226 of Indian Constitution.
Power to issue writ is specific to only one subject matter
Wider power to deal with the issues of writ petition
Exercise its writ jurisdiction for enforcement of fundamental rights only
Exercise its writ jurisdiction for enforcement of fundamental rights and other constitution and legal right also
Territorial jurisdiction is applicable throughout the country
Writs have validity only in the territory under the authority of the High Court or where the cause of action has arisen.
Exhaustion of alternative remedies before moving to High Court
Constitutional Courts in India have time and again held that in case there is an availability of an alternate remedy before the petitioner then the writ petition before the High Court or Supreme Court is not maintainable.
In the instance case, suit was filed by the appellant for recovery of money from the principal debtor as well as the guarantors. As the case relates to recovery of debts therefore, it got transferred to Debt Recovery Tribunal, Calcutta. The case was decided by the tribunal against the principal debtor as well as against the guarantors.
Then, respondent filed a writ petition under Article 227 before the Calcutta High Court.court allowed the petition on observing that the subject-matter of the case falls within the territorial limits of the court and delivered its judgment, on which appeal before this hon’ble court was filed.
Observation of this hon’ble court held that order of the tribunal was appealable under (section 20) of the Recovery of Debts Due to Banks and Financial Institutions Act,1993, the High Court must not have exercised it jurisdiction under Article 227in view of availability of an alternative remedy under the Act.
It was held by the Supreme Court of India that
- the act of the Recovery of Debts Due to Banks and Financial Institutions was enacted to provide special procedure for recovery of bank debts and debts due to the financial institutions, and there is a proper hierarchy of appeal procedure provided under the act and such procedure should not be diverted either by the recourse procedure under Article 226 and 227 nor by filing a civil suit, which is expressly barred.
- Where there is an alternate remedy available judicial prudence demands that the court should refrain itself from exercising its jurisdiction under the said constitutional provision.
- In this case high court must not have exercised its jurisdiction and must have directed the respondent to take recourse to the appeal mechanism provided by the Act.
So, the decision of this case, clear the meaning of this principle “exhaustion of alternative remedies before moving to the High Court” which says that for High Court prerequisite condition for exercising its jurisdiction is to check the availability of alternative remedy available before the petitioner which provide him equal , just and effective remedy in case those remedies are exhaustive then the High Court have to exercise its jurisdiction under the said section for issuing the writ petition.
When writ of habeas corpus may be refused
There are certain conditions under which the writ of habeas corpus may be refused which are as follows:
- when the imprisonment is in consonance with the order or decision passed by the court,
- On any other grounds not specified by law for issuing such writ.
- when the person detained or the person making such detention does not fall within the territorial jurisdiction of the court before which application of writ petition has been filed,
- when the detenu has already been set free from the custody, during the writ filing procedure or before it,
- when the detention has been validated by removal of defects,
- whenever the writ is sought during emergency situations, in suction situations right to move to the court has also been taken away from the people,
- when the petition has been dismissed by a competent court after looking into the merits.
- To secure the release of the person whose ground for detention is made by a court of law on criminal charges.
- When there is a proceeding for contempt by the court of record or by parliament.
This list of ground is not exhaustive in itself.
Role of writs under Administrative Actions
Enforcement of discretionary powers by administrative authorities has been accepted as important phenomena of modern administrative and constitutional machinery. Law making authorities can enact the laws on any subject to serve the public interest and while enacting such laws, it has become inevitable to provide for discretionary powers that are subject to judicial review.
Condition precedent attached with such discretionary power is only that such discretionary power has to be exercised in good faith. The purpose behind this discretion is prescribed under this act along with certain limitations. The Courts have to exercise their writ jurisdiction to test the Statute on the ground of reasonableness. Mostly, the courts review on two grounds;
- Firstly whether the statute in question is substantively valid piece of legislation or not and,
- Secondly whether the statute provides procedural safeguards to all.
If these grounds are not found in any statue then the law is declared ultra vires and violative of Article 14 of the Constitution.
Furthermore, the court also controls the discretionary power of executive bodies that are being exercised by them after the statute is enacted or come into force.it is the duty of executive authorities to exercise their power within limitations prescribed under the act to achieve its objective. This discretionary powers of executive bodies play substantial role in administrative decision making and for immediate settlement of principles of administrative law trap the exercise of powers.
In case where such discretionary powers are not exercised in accordance with law, or there is any kind of abuse and misuse of such powers by the executives or take any inappropriate benefits for which they are not entitled to take or simply misdirect administrative agencies in applying the proper provision of law, then such power exercised in discretion will become void. When it is found by the court that executive authorities have acted in accordance with law and maintain reasonable standards while giving their decision then such decisions are not subject to Judicial Review.
The Executive have to reach their decisions by taking into account relevant considerations. They can neither refuse to consider relevant matter nor can they take into consideration accounts which are fully irrelevant or extraneous with the facts of the case and law.
Authorities must not misdirect themselves on the points of law. Only those decisions will be lawful and relevant which were decided in accordance with law. The courts have the power to keep an eye on the actions of executive bodies and to keep a check that these bodies acts lawfully.
These bodies cannot avoid court’s scrutiny, in situations where they failed to provide the reason for their actions and in case the reason given by them is not satisfactory to the court then court is provided with the authority to give direction for reconsideration of the matter in the light of relevant matters and already decided case.
Though the propriety, adequacy or satisfactory character of these reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.”
The role of writs is also sensibly laid down in a famous PADFIELD’S CASE
In the earlier days, courts in England, usually refused to interfere in the matters where the Government or the concerned officer passed a non-speaking order (an order which on the face of it did not specify the reasons for the orders). Once a speaking order was passed, the Court”s duty was to find out and consider whether the reasons given for the order or decision were relevant reasons.
On the other hand in case of a non-speaking order they used to say that it was like the face of the Sphinx in the sense that it was incurable and therefore hold that they could not consider the question of the validity of the order.
Even in England also like India the Courts have travelled very far since those days. They no longer find the face of the Sphinx inscrutable.
The first and foremost goal of the Preamble of the Constitution is to secure social, economic and political justice to all its citizens. Preamble of the constitutionIt is the guiding principle of the nation as it sets out the main aims which legislature intended to achieve. The social changes which were contemplated by the makers of the Constitution, in the Constitution was sought to be achieved through the exercise of fundamental rights by the individuals and by following the direction of the policy by the state towards the goals set up in the Chapter IV of the Constitution i.e. specifies directive principles of state policy.
For effective working of these principles and goals in real life and to prevent misuse of these rights and liberties the judiciary was constituted in the Constitution.It is a trite saying and a latin maxim ubi jus ibi remedium which means that wherever there is wrong committed law provides remedy for the same. Therefore, judiciary was constituted to satisfy this principle well and when a remedy is given for infringement of any right then that will make the right more effective.
To facilitate access to justice, the judiciary relaxed the rule of locus standi in favour of a person acting bonafide and having sufficient interest in the proceedings of Public Interest Litigation (here in after referred as PIL). Supreme court have entertained petitions filed by law students, law teachers, NGOs, public-spirited individuals and good Samaritans. for protection of the rights of an individual.
Furthermore, the Supreme Court and the High Court have admitted the letters, postcards, telegrams, and even newspaper items as writ petitions under Article 32 and 226 respectively of Indian Constitution. These petitions provide extraordinary judicial relief to the person whose rights are being infringed by any judicial or quasi- judicial order. PIL has an important role to play in the justice system; it affords a ladder to justice to the disadvantaged sections of the society, some of which might not even be well-informed about their rights.
Constitution law itself states that law is a supreme body and no one can be above the law. Even the judges of the supreme court are bound by the decision given by them in accordance with the law. And the constitution remedies provided under the law acts as a check and balance for the whole system. Thus, the writ jurisdictions act as judicial restraints of policy decisions which are unreasonable, unfair and against the public interest.
Power to issue writ, though is discretionary yet unbounded in its limits and such discretion can be exercised only on sound legal principles. Absence of arbitrary power is the first essential for the principle of rule of law upon which the whole constitutional system is based.
- Constitution of India- V.N. Shukla