Sudhakar Singh wrote this article. It broadly discusses the types of writs and the scope of the writ jurisdiction of the Supreme Court and High Courts under the Indian Constitution.

Introduction

Suppose there is your property, but to protect that property, you are not allowed to build a fence around it; you are not allowed to do any construction around it, nor are you allowed to evict a trespasser. In these circumstances, can you properly enjoy your property? 

We`ve been provided with different rights, like the right to education, dignity, and life. But like the example, rights have no meaning until they are adequately protected. To put it simply, whenever we buy any jewellery, the first thing we think about is its safekeeping. For the protection of our fundamental rights and their safeguard, we have some Constitutional Remedies.

Part III of the constitution discusses fundamental rights, extending from Article 12 to Article 35. This means that Article 32 is a fundamental right in itself. The Indian Constitution gives only two kinds of writs: Article 32 and Article 226. Under Article 32, the Supreme Court has the power to issue writs on the violation of fundamental rights; under Article 226, the High Court has the power to issue writs. 

Writs provide a direct and easy remedy if your right has been violated. In the Indian Constitution, five kinds of writs are given: Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto. These writs provide you with a solution for different problems.

Before you understand the scope of the writ jurisdiction of the Supreme Court and High Courts in India, you should understand the meaning of the ‘writ’.

Meaning of writ

A writ is an order of the court that requires a person or government employees to do or not to do a specific work. However, you can use writ to protect the rights and get a remedy against violating your fundamental rights. The term ‘writ’ has been explained under various dictionaries, such as;

According to Black’s Law Dictionary, ‘a writ’ can be defined as a writing; an instrument in writing, as a deed, bond, contract, etc.

According to Merriam-Webster Dictionary, “a writ is an order or mandatory process in writing issued in the name of the sovereign or of a court or judicial officer commanding the person to whom it is directed to perform or refrain from performing an act specified therein.”

Object of writs

You must have heard that everything has its purpose. Go through Article 32 and Article 226 of the Indian Constitution. You will find that these articles give enormous power to the Supreme Court and High Courts to take action against authorities who are responsible for the infringement of the fundamental rights of citizens. As you move further in the article, you will find that the writs are used for mainly three purposes, which are;

Protection of fundamental rights

If your fundamental rights have been violated, you can use writs as an instrument to preserve and protect your rights. By using writs, you can get immediate relief by exercising the writ jurisdiction of the Supreme Court and High Courts.

Judicial review

You can use writs to investigate the government’s and its employees’ actions. It is essential to ensure that the government acts within the scope of the law.

Protection of public interest

You all know that the municipal corporation must clean the river. If it fails, you can file a writ of mandamus to have the river cleaned. Cleaning rivers protects the more significant public interest, so you can use writs to protect such interests.

As you understand the meaning of writs, now it’s time for you to look back at the historical development of writs.

Historical background of writs

Writs, a form of judicial remedy, were introduced into the British judicial system during the reign of King Henry VII (1485-1509). The scope of writs was expanded only with later development. The courts under the British Crown could issue Habeas Corpus, Certiorari, Mandamus, Prohibition, and Quo Warranto to protect the rights of the British subjects in India.

As we discuss how writs are introduced in the Indian Constitution, you must understand the role of the Government of India Act, 1935, and the Constituent Assembly.

Situation after the Government of India Act, 1935

The Government of India Act of 1935 brought a significant change in the Indian legal system. Under this Act, the Federal and Provincial Courts were created, but there were no provisions for the delivery of writs to protect civil liberties. This shows us that the executive and legislative authorities were not supervised.

That means, before the middle of the twentieth century, Indian leaders and makers of the Constitution did not give importance to the strong judiciary. They were not concerned with protecting the civil liberties of citizens of India, like minorities or Indigenous people, wherever the theory of a strong judiciary has been incorporated in the drafting of the Constitution containing provisions for remedying violation of rights in the form of writs as in the case of the Indian Constitution.

Constituent Assembly debates

The role of debates in the Constituent Assembly of India is noteworthy regarding including writs in the Constitution of India. The assembly’s deliberation also witnessed a wide discussion on writ jurisdiction, particularly Article 32. The framers of the Constitution were keenly conscious of providing a process through which they could directly approach the higher courts if they violated their fundamental rights.

The debates of the Constituent Assembly reveal that the rights under the Constitution are not only given on paper, but you can use such rights to enforce your fundamental rights and other legal rights. The debates are essential to show that the writs protect your interest against such actions of the state that are violating the law. The provision of Article 226 proves that the assembly had intended that justice should not be centralised and that the Supreme Court and the High Courts can issue writs. Members like K.M. Munshi and Alladi Krishnaswami Ayyar emphasised the easy access to writs for citizens. Some views of the members of the Constituent Assembly on writs are laid down as follows:

Dr. B.R. Ambedkar 

During the Constituent Assembly debates, Dr. Ambedkar was much more insistent on the importance of Article 32. If you read the parliamentary debates, you will find that Dr. Ambedkar gave more importance to Article 32 than Article 21 of the Constitution. Article 32 allows you to move to the Supreme Court if your fundamental rights have been violated.

K.M. Munshi 

Another member of the Constituent Assembly, K.M. Munshi, pointed out that the exercise of writ jurisdiction would check citizen rights violations and protect citizens from the arbitrary action of the state through judicial scrutiny. He also prescribed that the power to issue a writ of Habeas Corpus restrain the unlawful detention of persons and protect personal freedom. He stressed the lack of sufficient measures to enable the citizen to seek redress instantly when his or her fundamental rights have been violated. 

Alladi Krishnaswami Ayyar

Yet another member of the Constituent Assembly was Alladi Krishnaswami Ayyar, who also expressed the same. He said that writ jurisdiction would be an effective remedy against any executive wrongdoing. It also gives the judicial discretion in any case when it may be thought that the rights of the citizens are liable to infringement. He also insisted that the right should be conferred on the Supreme Court and High Courts to issue previsions to ensure the citizens of both tiers of the legal frameworks.

Now that you have understood the meaning, concept, and historical background of writs in India, you should understand the concept of writ as a fundamental right in detail.

Writ as a fundamental right 

As you know, a writ is essential to protect the fundamental rights given under the Indian Constitution. A necessary legal aid enables you to seek remedies wherever your rights are violated. Remember that Article 32 is a fundamental right because it gives you the right to get a constitutional relief.

For example, Yash has been arrested by the police for more than 15 days. When Yash asked for the grounds for his arrest, the police did not tell him. Here, Yash’s right to life and personal liberty has been violated. Yash or his family can file a writ of Habeas Corpus before the Supreme Court.

As you know, governments can misuse their power in democracies. Therefore, the writ is essential because it prohibits the state’s action and prevents the abuse of power. The courts use the writs to protect the rights of everyone and reject the idea that the rich use the legal system to escape from crimes. 

For example, you applied for a passport and uploaded all required documents, but the authority refused to issue the passport without any reason. Here, authorities abuse their power; therefore, you can file a writ of Mandamus before superior courts.

To maintain the applicability of writs, the authorities have to avoid violating the law, which gives them extra responsibility. They enable individuals to assert state or official decisions that are unlawful, unconstitutional, violative of their rights against unjust imprisonment, being held for ransom, and violation of privacy, among others. As a result, the writ mechanism improves the democratic value system of the country since it provides everyone in the society an equal chance to seek his or her rights in the country.  

In Fertilizer Corporation Kamgar Union (Regd) Sindri and Others vs. Union of India and Others (1980), the Apex Court held that the jurisdiction conferred by Article 32 is an integral part of the Constitution’s basic structure because fundamental rights would have no meaning if no effective remedy was provided for their enforcement. 

In Prem Chand Garg vs. Excise Commissioner, U.P., Allahabad (1962), Justice Gajendragadkar observed that it is a fundamental right of the petitioner to move to the Supreme Court. The Supreme Court can be appropriately described as the cornerstone of the democracy created by the Constitution.

Essentials to invoke a writ 

Your right to file a writ petition is one of the best given under a Constitution, but  before you file a writ petition, you must satisfy the following conditions, such as:

Violation of the fundamental rights

If you file a writ petition, you must prove that any government authority or individual has violated your fundamental right.

The arbitrary action of the state or authority

You can file a writ when the action of the state is arbitrary. For example, Neeraj applied to the municipal corporation to issue his birth certificate. The authorities refused to issue his birth certificate without any reason. Now, Neeraj can file a writ of Mandamus against the municipal corporation.

No adequate alternative remedy

If your rights have been violated and you have no alternative remedy, then most of the time, superior courts refuse to issue writs. If there is a violation of principles of natural justice or a pure question of law, then courts can issue a writ even if they have no alternative remedy.

No delay in filing a petition

For example, Manshi’s fundamental right has been violated, and she filed a writ of mandamus after 4 years. This delay in filing a writ petition is not acceptable.

Locus standi to file a writ petition

It is important to note that you cannot claim the rights of another person unless the law permits you to do so. You will find the same principle in the theory of civil rights, which says that the rights and remedies live together. This means only you can claim your right, and no other person can do it.

For example, Abhishek is a businessman, and there is a pending case against Abhishek before the labour tribunal. Only Abhishek has a locus standi to file a writ of prohibition to prohibit the labour tribunal from deciding the case.

When issuing a writ petition under Article 32, the Supreme Court has an unrestricted stand on locus standi. Locus standi has been enlarged to a great extent, and the Supreme Court of India has blown the idea of ‘who may approach the court’ with a writ petition to set aside an executive order.  

In M.S. Jayaraj vs. Commissioner of Excise, Kerala, and others (2000), the Supreme Court addressed the merits of the case and the question of whether an order made by the Excise Commissioner is legal or not, regardless of whether the person who challenged the order had the locus-standi to do so. The Supreme Court held that if the order violates the law, the court should not stop the motion only on locus-standi.

Prerogative writs

Prerogative writs are special remedies the superior courts provide to ensure that individuals or government departments perform their functions by the law, particularly to act. These writs originated from royal prerogatives, which are supposed to be sovereign powers first conferred on the English king or queen but now given to courts.

Prerogative writs initially existed to balance power between the government and citizens and protect them from arbitrary state action. However, they have become important in modern legal systems to deliver justice, establish accountability, and safeguard citizens’ rights. Some essential prerogative writs include Habeas Corpus, Prohibition, Certiorari, Quo Warranto, and Mandatus. 

These writs worked as a mechanism for implementing justice, law, and order and enabled any powers delegated to public officials to be exercised by the legal provisions. They act as essential watchdogs in guarding against any improper conduct by public personnel and monitoring the proper functioning of public institutions. 

The fundamental rights are enforced through the issuance of writs by constitutional courts, i.e., the Supreme Court and High Courts. Therefore, you need to understand the enforcement of fundamental rights in brief.

Fundamental rights and their enforcement

People often say “I will see you in court” in case of any dispute. This means people in society believe that they will get justice in the court. Under Article 13, special power of judicial review is given to the Supreme Court and High Courts to protect your rights. It is provided under Article 13 that if any law is violating your fundamental rights, then such law is not enforceable. It gives power to the courts to declare any law unconstitutional if it violates your fundamental rights.

It explains that fundamental rights can be efficiently enforced through judicial review. The High Courts and the Supreme Court of India have the power to review any action of the Legislature and Executive.

In Bhushan Power & Steel Ltd. vs. Rajesh Verma & Ors (2014), the Supreme Court held that a writ petition is not maintainable if fundamental rights are not violated.

Since you have already understood the basic concept of writs, it would be easy to understand the types of writs in detail.

Types of Writs Under the Indian Constitution

Under the Indian Constitution, mainly 5 types of writs can be issued. They are:

• Habeas Corpus 
• Mandamus 
• Certiorari 
• Prohibition 
• Quo Warranto 

Writ	Meaning	Purpose	Authorities against whom particular writ can be issued
Habeas Corpus	It means ‘you shall have the body’.	It ensures protection from unlawful detention. Through this writ, the court orders a person or authority to bring the detainee into the court	Law enforcement agencies, Prison authorities, Public authorities, Private individuals
Mandamus	It means ‘We command’.	It directs a public authority to perform its duty imposed under the law.	Statutory bodies, Government officials, Public authorities
Prohibition	It restrains lower courts or tribunals from acting beyond their jurisdiction.	It ensures that the lower courts act within their jurisdiction. Jurisdiction can be either subject matter or territorial.	Lower courts, Tribunals, Quasi-judicial bodies, Public authorities
Certiorari	It means ‘to be informed of’.	Through this writ, the Higher Court reviews and corrects the errors in the decisions of lower courts or tribunals.	Lower courts, Tribunals, Quasi-judicial bodies, Public authorities
Quo Warranto	It means ‘By what authority’.	It challenges the position of someone holding a public office.	A public servant who occupies public office without legal authority

Let us understand each writ in detail and the landmark judgments relating to the respective writs.

Habeas Corpus 

Habeas Corpus is one of the most essential writs, not only in India but also all around the world. Therefore, you need to understand the meaning of the term ‘Habeas Corpus’. It means ‘having the body’. It means that the courts can demand the body be brought before it. You can say that a writ is one of the most efficient remedies for getting freedom for a person.

When you file the writ of habeas corpus, the courts make an order to ascertain whether the ascertainment of the person is by the law or not. If the court believes that the reason for detention of any person is not legally valid, then the court can issue a writ. It was held in the case of Ichhu Devi Choraria vs Union of India & Ors (1980), that even a postcard or a letter is sufficient enough for the courts to issue the writ of Habeas Corpus.

In Kanu Sanyal vs. District Magistrate, Darjeeling & Ors. (1974), the Supreme Court held that, while hearing a Habeas Corpus petition, there might be times that the Court may look into the validity of an order of detention even though the detained person has not been produced before the Court.

In Dr. Ram Manohar Lohia vs. State of Bihar and Others (1966), it was held that the detainee should have knowledge of the grounds for his detention and be permitted to challenge them. If the power of detention has not been used according to the law, it violates your right under Article 22 of the Indian Constitution.

The objective of this writ is to protect a person from unlawful detention. If the court finds that the grounds of detention are reasonable, this writ cannot be issued. Where the person has been detained due to an order from the court, it is not unlawful detention; hence, this writ cannot be issued.  

While dealing with the petition of writ of Habeas Corpus, the court generally takes a liberal approach. When a writ of Habeas Corpus is filed, it is neither framed properly nor the appropriate relief has been sought. It is expected from the court to look into those issues and decide the petition on merits and not on the technicalities of the petition.

Eligibility to file a writ of Habeas Corpus

It is believed that life and personal liberty are the most precious things one can ever have. If your life and personal liberty are threatened, you can approach the Supreme Court and High Courts to protect your rights. The writ of Habeas Corpus is mainly filed by

• A person who is detained, or
• A family member or relatives of a person arrested, or
• A legal representative of a person arrested

Grounds for invoking the writ of Habeas Corpus

The writ of Habeas Corpus can be based on several grounds, mainly:

• Violation of fundamental rights
• Detention without legal justification
• Unreasonable delay in proceedings 
• Detention exceeding the period authorised by law 
• Detention due to mistaken identity 
• Detention by an unauthorised person 
• Detention without proper legal procedures

Rules regarding the writ of Habeas Corpus

There are specific rules regarding the petition of writ of habeas corpus: 

• The person must be detained unlawfully.
• Family members of the detained person usually file the habeas corpus petition, but the petition is maintainable even if strangers file it in the public interest.
• No particular format is used in filing a writ of habeas corpus; both a formal and informal form of Habeas corpus application are acceptable in a court of law. In Sunil Batra vs. Delhi Administration (1979), the Hon’ble Apex Court accepted letters made by strangers, treated such a letter as an application for a writ of habeas corpus, and issued a writ of habeas corpus. 

• It is to be noted that a person cannot file a petition for a writ of Habeas Corpus again and again before different judges of the same court. Suppose an application is rejected on one cause of action. In that case, subsequent applications on the exact cause of action cannot be filed in another court, as the doctrine of res judicata applies. 

Important cases

ADM Jabalpur vs. S.S. Shukla Etc.(1976) 

Facts of the case 

In this case, on 25 June 1975, there were declarations of Emergency under Article 352 of the constitution based on an internal emergency. During this time, various political leaders, journalists, and citizens were detained under the Maintenance of Internal Security Act, 1971 (MISA). The government also suspended the right to life and personal liberty under Article 21.

Various writs of Habeas Corpus were filed before several high courts, including the Allahabad, Bombay, and Delhi High Courts. The High Courts favoured the petitioners and said the government cannot detain persons unlawfully. The government was not happy with the decisions of the High Courts and filed an appeal before the Supreme Court. The case was finally referred to a five-judge Constitution Bench.

Issues

• Whether the right to file a writ of Habeas Corpus suspended during an emergency?
• Do the citizens have any legal remedy when they are detained unlawfully by the government?

Judgement of the case 

The five-judge Constitutional Bench of the Supreme Court decided the case with a 4:1 majority and passed the judgment on April 28, 1976. The majority agreed that during the emergency, the government could suspend the enforcement of fundamental rights by issuing presidential orders.

Justice H.R. Khanna had given a minority decision. He said that even in an emergency, the government cannot take the life of another person. He also said that the state cannot take your life even if no protection is given under Article 21 of the Constitution.

AK Gopalan vs. State of Madras (1950) 

Facts of the case 

In this case, AK Gopalan was detained by the government in 1947. He filed a writ of Habeas Corpus and challenged the order made under the Preventive Detention Act, 1950. He said that he had been detained since 1947, and the state government had made another order to detain him, which violated his fundamental rights given under Articles 19 and 21 of the Constitution.

He also claimed that he was never the reason for his arrest, violating his fundamental rights under Article 22.

Issue in the case

Whether the detention of Gopalan was lawful under section 3 of the Preventive Detention Act,1950.

Judgement of the case

The court supported the validity of the Preventive Detention Act and rejected the argument for reading Article 21 and Article 19. The court held that “personal liberty” within the perimeter of Article 21 is a limited right. Therefore, as long as the duly prescribed legal procedures have conducted the detention, it could not be considered unconstitutional. 

Justice Kania, for the majority, defined the words ‘procedure established by law’ in Article 21 as any procedure made by valid legislation by the parliament. The court also held that the court cannot examine the reasonability of the procedure. This interpretation means there was no legal provision for the detention; thus, the court cannot intervene.

Justice Fazl Ali gave a minority decision and said that Article 19 and Article 21 should be read together. According to him, liberty is universal and strongly connected to other rights. He also said that the ‘law’ does not mean any unfair law passed by the legislature.

Mandamus

Before moving ahead with the topic, we must discuss the meaning of Mandamus. It means ‘we command’. You must know that the writ of Mandamus is an order issued by the superior courts to the inferior courts regarding what to do or what not to do. This order can also be made against an inferior tribunal, board or administrative authority. For instance, when a tribunal fails to decide any question it is under a duty to determine, it can be compelled to do so using a writ of mandamus. 

The Supreme Court of India is the top court; therefore, it can also issue the writ of Mandamus to the High Court. The High Court also has the power to issue writs under Article 226. Thus, a High Court can grant this writ under Article 226 to the inferior courts, i.e., Trial Courts. 

Mandamus is issued when a legal right is conferred on authority and where the petitioner is legally entitled to compel the performance of the lawful duty. Thus, the performance of duty should be compulsion, not that one can choose just to do it or not to do it. The concept of a right duty situation has been eliminated as a requirement to issue a Mandamus. The courts now recognize promissory estoppel and legitimate expectations as causes of action to issue the Mandamus. 

It is challenging to prescribe actual rules and regulations regarding when the writ of Mandamus will be issued and when it will not. In other words, the court’s discretion also depends on the local laws of the land, whether they are fundamental or regular law. 

Usually, the court does not intervene in the power vested with statutory authorities. In the first instance, the court assists the statutory authorities to perform their functions, and the court would not exercise its writ jurisdiction. An individual’s legal right is based on any written instrument, law, or contract. To enforce a public law remedy against the legislative or executive act of the state, the state’s action must have a public nature. Therefore, the court will not exercise its writ jurisdiction where no ingredient of public law is involved. 

Modern trends also indicate judicial self-restraint regarding administrative activities. It is hard to give an exhaustive list of actions that fall under the public law remedy or private law field. Therefore, each case has to be decided based on its facts and circumstances.

The extent of the Mandamus is well defined by the kind of duty intended to be performed and not by the official through whom it is to be performed. However, the courts always have the discretion not to grant the remedy where it is undesirable.

The Supreme Court upheld that the dearness allowance cannot be claimed as a right by any employee, and the government has no obligation to grant it. Regarding the dearness allowance, it is for the government to decide whether to pay it or not. Thus, a Mandate cannot be issued to compel the government to exercise its discretionary power.

Eligibility to file a writ of Mandamus 

Earlier, the person whose rights had been infringed had a legal right to file the writ of Mandamus. This position has changed over the years, especially after the Supreme Court of India took a broad view and the concept of ‘Public Interest Litigation’ came into being. Any person in India can file a writ of Mandamus in the public interest to compel the negligent authority to perform its duties.

In Municipal Council, Ratlam vs. Shri Vardhichand & Ors. (1980), it was stated that the Ratlam municipality must take away human stool and any nuisance to the public. Thus, the writ of Mandamus can be issued to compel the municipality to perform its duties. 

Therefore, an application for Mandamus may be made by the directly affected persons and those who wish the other party to do its legal duty in the public interest.

Authorities subjected under Writ of Mandamus 

 A Writ of Mandamus can be invoked against: 

Public authorities

Officers employed by the government and other related organisations have been unable to perform their duties. 

Government bodies

Organisations that do not perform any positive duty are provided under any acting legislation.  

Lower courts

Courts that have taken extra time to handle a case within their jurisdictions. 

Municipal corporations or bodies

Any municipal corporation or any other statutory authority that fails in its duties which it is supposed to perform. 

However, there are conditions subject to the writ of Mandamus. Now, let’s note the exceptions to the writ of Mandamus briefly.

Exceptions to the writ of Mandamus 

Originally, writs could be issued only when the circumstances described under Article 32 of the Indian Constitution apply. The court of law cannot issue a writ of Mandamus under certain circumstances. Some of the grounds are as follows; 

• Private individuals 
• The President or Governor of a State
• A person acting in a judicial capacity 
• Legislative bodies exercise their functions 
• Officials who have discretion in the performance of their duties
• To enforce a contractual obligation
• Any departmental action that lacks statutory enforcement 

This writ is usually issued to compel the authorities to implement the proper implementation of legal provisions and avoid authorities’ negligence. The court issues writs on specific grounds. It is essential to understand the grounds for issuing a writ of Mandamus. 

Grounds for issuing a writ of Mandamus

You need to understand that you have to fulfil specific grounds, such as;

Existence of a legal right

You must have a legal right that has been violated. The basic principle of the writ is to protect the rights of the citizens; if no right is violated, then the writ of Mandamus cannot be issued.

Violation of right

A writ of Mandamus can only be issued when the petitioner’s rights are violated. The fact that the petitioner has the right is insufficient ground for issuing the writs. The petitioner has to present a cause of action before the court.

Request made to the authority

The petitioner must request the authority to do its duty. A writ can only be issued when the authority fails to fulfil its legal duty. A Writ of Mandamus compels the authority to do the act required by law or the post it holds.

Lack of adequate alternative remedy

The petitioner must prove that no other adequate remedy is available to him. If no other form of relief is available from the court, then the court does not issue the writ of Mandamus. 

Urgency and lack of time

The writ of Mandamus can also be issued if circumstances require urgent action, which, if delayed, may prejudice the petitioner.  

In Vijay Mehta vs. State of Rajasthan (1980), a writ petition was filed before the High Court to issue a direction to the state to constitute a commission to investigate climate change and floods in the state. The court said that it could not issue a writ of Mandamus to appoint a commission because no law makes it compulsory for the legislature to appoint a commission.

In State of Andhra Pradesh & Anr vs. T. Gopalakrishna Murthi & Ors (1976), the Supreme Court held that a writ of Mandamus cannot be issued to enforce the guidelines related to the salary of high court employees. The state government is not legally bound to implement such policies. The government’s consent, which is required under Article 229(2), is compulsory.

Similarly, in Ajit Singh vs. State of Punjab & Anr (1967), the Supreme Court held that Article 16(4) of the constitution does not obligate the government to make reservations. Therefore, Mandamus cannot be issued to compel the government to make reservations under Article 16(4). 

In L.I.C. of India & Anr vs. Consumer Education & Research Centre & Ors. Etc. (1995), the Supreme Court held that, even though citizens’ rights are contractual, they can be judicially reviewed on the grounds of reasonableness, natural justice, and equality. In contractual relations, public authorities should act pretty. If they are not fair, then a petition under Article 226 can be filed because it means a violation of Article 14 of the Indian Constitution.

However, it is essential to note that the judiciary’s role in disputes involving contracts is minimal, even if one of the parties is the state. In Tata Cellular vs. Union of India (1994), the Supreme Court held that, where the issue is one of the government’s policies, the Court cannot interfere with the government’s right to call or not call for tenders. Mandamus cannot be issued when state action is unlawful, unfair, or unreasonable on one ground or the other.

Conditions when issuance of Mandamus is not allowed

The courts can refuse to issue Mandamus in the following cases: 

• Where the petitioner has no right. 
• The duty has already been performed by the authority against which such a writ is to be issued.

Important case laws

Rita Mishra and Ors. Etc. vs. Director, Primary Education, Bihar (1988) 

Facts of the case 

In this case, Rita Mishra was a teacher in Bihar, and the Director of Primary Education cancelled her appointment. 

Unhappy with the respondent’s decision, she filed a petition before the High Court to issue a writ of Mandamus. She requested the court for her reappointment in service. According to her, she was fired without a proper inquiry, which goes against both her rights under Article 311 and the principles of natural justice. Article 311 allows the person to defend themselves and prevent dismissal without a proper enquiry. The Division Bench of the High Court dismissed the petition and said that the writ of mandamus cannot be claimed as a matter of right. Dissatisfied with this decision, the matter was appealed to the Apex Court.

Issues of the case 

• Whether a writ of Mandamus could be issued to employees who want reappointment under government service claiming that they were unlawfully dismissed.

Judgement of the case 

In its judgement, the Supreme Court of India dismissed the appeal. The court said that you cannot apply for a writ of Mandamus as a matter of your right because it is a discretionary remedy.

The court also held that petitioners can file an appeal before appropriate administrative tribunals or seek relief through a civil court. The court again emphasised that the Mandamus is used to compel the authorities to act in compliance with the law but cannot control the action to direct it or reverse an executive discretion. 

Binny limited & Anr vs. Sadasivan & Ors.  (2005) 

Facts of the case 

In this case, Sadasivan and others were employees of Binny Limited, a textile manufacturing company. Due to various industrial actions, the company dismissed Sadasivan and some of his colleagues.

The employees filed a writ petition under Article 226 to get a writ of Mandamus for their reinstatement in their employment. They contended that since Binny Ltd. was a private company that carried out certain public functions, it could be subjected to Article 226 writ jurisdiction. The employees said that because the company was of a public utility character and supplied employment to many people, its actions were subject to judicial review.

However, the company said it was a private entity mainly focused on the business and did not perform any public function. Therefore, a writ of Mandamus cannot be issued against it. However, employees can go before labour courts or other industrial disputes resolving authorities.  

Issues of the case 

• Can the employees issue a writ of Mandamus against a private company?

Judgement of the case 

The Supreme Court held that Binny Ltd. was a private company, and a writ of Mandamus could not be issued against it because it was not performing any public duty. The writs under Article 226 are granted against the state or authority acting for the state to perform a public duty.

You need to understand that a writ of mandamus can be issued against a private individual only when that individual is performing a public duty, and this was not the case with Binny Ltd.

Certiorari

As you know, every writ has its meaning and purpose. Before we move ahead, we should understand the meaning of the term ‘certiorari. It means ‘to be informed’. If you notice, you will find that the writ of Certiorari is different from other writs. The superior court can issue this writ whenever there is a conflict of jurisdiction by inferior courts. For example, there is a criminal case in a consumer court, and the consumer court decides the matter. Now, a writ of certiorari can be issued against the consumer court because it has decided matters outside its jurisdiction.

It can also be issued when there is a clear violation of the provisions of natural justice or the court proceeded illegally. When a superior court finds that there has been a violation of natural justice or a fundamental error in the procedure, then the order of the inferior court can be quashed. 

For example, Ayush filed a writ application against Manish in the District Court. The district court decided the matter, and Manish applied to the High Court.

Eligibility to file a writ of certiorari

The writ of certiorari is mainly filed by parties directly affected by the decisions of lower courts or tribunals. In cases of writ of Certiorari, PIL is not allowed. A person not directly affected by the decisions of tribunals or lower courts has no right to file a writ of Certiorari. Public authorities can file a petition for a writ of Certiorari when they are directly affected by the lower court’s decision. 

It also means that you can use this writ only against the judicial bodies or those that perform any judicial function. You cannot file this writ against the central, state, or local governments because their function is administrative and not judicial.

Grounds for filing a writ of certiorari

Before you file the writ of Certiorari, you must know the grounds on which the writ of certiorari can be issued, such as:

Lack of jurisdiction

Mostly writ of certiorari is issued when the lower authority has decided the subject matter and that the lower authority has no jurisdiction. In such a case, you can file a writ of certiorari before superior courts. For example, if a civil court decides the criminal case, then a writ of certiorari can be issued to nullify the civil court’s decision.

Wrongful interpretation

If you find that an order made by an inferior court is based on a wrong interpretation of the law or facts that cause grave injustice, then a writ of certiorari can be issued by the superior court.  For example, if a tax tribunal misinterprets the law and imposes an extra penalty, you can file a writ of certiorari before a superior court.

Violation of principles of natural justice

If an inferior court decides the matter without following the principles of natural justice, you can file a writ of certiorari before the superior court. For example, you are a teacher in school, and the school management has dismissed you without allowing you to defend yourself. Then, you can file a writ of certiorari before the superior court.

Excess of jurisdiction

When a lower court has taken an action outside its jurisdiction in the subject matter.

Apparent error on the face of record

If you find an apparent legal mistake in the lower court’s decision or the lower court’s decision is against the established principles of law. You can file a writ of certiorari before the superior court.

Important case laws

Nagendra Nath Bora and others vs. Commissioner of Hills Division and Appeals, Assam and OT (1958) 

Facts of the case 

In this case, Nagendra Nath Bora filed a matter in the Assam Hills Division. The Excise Commissioner of Hills and Division had decided the matter, and an appeal was made before the Commissioner of Hills and Division.

The Commissioner of Hills and Division has decided the case in favor of Nagendra Nath Bora. Dissatisfied with the Commissioner’s decision, other respondents approached the Assam High Court to get a writ of Certiorari and quash the commissioner’s order. The High Court issued a writ of Certiorari against the Commissioner of Hills and Division’s decision. Nagendra Nath Bora filed an appeal before the Apex Court.

Judgement of the case 

The Supreme Court held that the writ of Certiorari is issued when a lower court or tribunal oversteps its jurisdiction, makes an error of law, or breaches the principles of natural justice. The Commissioner of Hills Division of Assam’s decisions were right and had proper legal authority. The court stated that the commissioner did not commit any legal mistake. Thus, the writ of Certiorari cannot be issued.

Central Council for Research in Ayurvedic Sciences & Anr. vs. Bikartan Das & Ors.  (2023) 

Facts of the Case

In this case, the disciplinary authority punished Bikartan Das for misconduct, carelessness, and violation of duty. After some time, Bikartan Das filed an appeal before the tribunal. The tribunal said the punishment was harsher than the crime and rejected the disciplinary authority’s decision.

After that, the Central Council for Research in Ayurvedic Sciences (CCRAS) approached the High Court for a writ of Certiorari to nullify the Tribunal’s order. The High Court decided the case in favour of CCRAS. Dissatisfied with this decision, Bikartan Das filed an appeal before the Supreme Court.

Judgement of the case 

The Supreme Court held that the tribunal had erred when it re-examined the factual findings of the disciplinary authority. The court pointed out that tribunals had the authority to review the disciplinary measures. Still, their intervention should be restricted to examining whether the legal formalities were complied with and not to exercising discretion. 

Quo Warranto

The superior courts use the writ of Quo Warranto against a private person who occupies a public position over legal authority. The term ‘Quo Warranto’ means ‘by what warrant,’ and it is an efficient remedy ensuring public offices are occupied lawfully.

For example, Aman occupies the office of Sub-inspector, although he was not legally appointed in the position of Sub-inspector. Therefore, you can file a writ of Quo Warranto to challenge the ground on which Aman holds the office of sub-inspector.

Eligibility to file a writ of Quo Warranto

As you know, public office is created for the public’s welfare. This means that if you are appointed to a public office, you must be eligible for such office. A writ of Quo Warranto is issued to check the validity of the appointment of any person in public office. 

For a writ of Quo Warranto, it is not required that the person should be personally aggrieved. Any member of the public with a reasonable belief that another person is unlawfully occupying a public office can institute a Quo Warranto proceeding. It protects the sanctity of public offices and also restricts the unlawful possession of public offices. 

The writ of Quo Warranto can be invoked against: 

• A person who gets public office illegally. 
• Such individuals continue in public office even after their term of appointment. For example, you have been appointed as the Attorney General of India. After completing your term, you retire but do not leave your office even after retirement. In such a case, the Apex Court can issue a writ of Quo Warranto against you.

A Writ of Quo Warranto can be issued to challenge the appointment of a person who is against the statutes or constitution. A writ of Quo Warranto can be filed before the court to compel a person to appear for his document of proper appointment. Suppose any person holds office exceeding his/her term or such person ceases to be eligible for office, or eligibility criteria have been changed. In that case, a writ of Quo Warranto can be issued to remove such an individual.

Grounds for issuing the writ of Quo Warranto

The writ of Quo Warranto is issued by the court when a person occupies a public office unlawfully. There are specific grounds for issuing the writ of Quo Warranto: 

The office must be public

The office in question must be public under any statute or Constitution. A writ of Quo Warranto cannot be issued if the office is private. If any person held office lawfully earlier and, after his dismissal from office, continued to hold such office, a writ of Quo Warranto can be filed. 

Substantive nature of the office

The office must perform some public duties. The duties must be such that they affect the public at large. 

Violation of eligibility criteria

Quo Warranto’s writ can be issued when an individual holding office does not meet the eligibility criteria, such as age and qualifications. 

Possession of office

The person against whom a writ of Quo Warranto is sought must be in actual possession of an office.

In Purshottam Lal Sharma vs. State of Rajasthan and Ors (1979), since the Chief Minister of Rajasthan was not a house member, Quo Warranto proceedings were initiated against him. Rajasthan High Court dismissed the petition by saying that the petition of Quo Warranto can be issued when the Chief Minister occupies the office without any legal authority or if he violated any constitutional provision. The court also held that seeking a writ against the election of the Chief Minister is not a proper remedy. The election committee is the appropriate forum to decide the matter.

Prohibition

The other writ we know is the writ of Prohibition. This writ provides extraordinary relief that a superior court exercises to prevent an inferior court or tribunal from making a decision, as inferior courts lack jurisdiction.  

If the court or tribunal lacks jurisdiction but still decides the case, the judgment will have no effect because an act must be supported by law for it to be effective. 

For example, if the District Court hears an appeal against the High Court’s judgement, it is prohibited because the District Court has no power to hear an appeal against the High Court’s order. Thus, a writ of Prohibition can be issued in the district court. 

Eligibility to file a writ of prohibition

A writ of Prohibition is filed by a person aggrieved with the proceedings of a lower court or any other tribunal exercising a jurisdiction it does not possess. The petitioner must prove that the actions of a lower court or tribunal are not legally valid. To file a writ of Prohibition, an individual must show that he/she has a legal interest in the matter. 

Government authorities affected by the act of a lower authority can apply for a writ of Prohibition. If any regulatory body has reason to believe that the tribunal is affecting its functions, then the writ of Prohibition can be filed against lower authorities.

When judges or legal authorities believe that a lower court or tribunal has acted beyond its jurisdiction, they take action based on their knowledge and initiate the proceedings of a writ of Prohibition.

Conditions to Issue Writ of Prohibition

The courts issue a writ of Prohibition when the petition satisfies certain conditions. The writ can be issued only when: 

• An inferior court or tribunal exceeded its jurisdiction.
• The inferior courts or tribunals are acting against the law.
• The matter must be pending before the court.

You need to understand the difference between writ of prohibition and certiorari in brief.

Difference between Writ of Prohibition and Certiorari

Basis of differences	Prohibition	Certiorari
Nature	A writ of Prohibition is a preventive order prohibiting lower courts or tribunals from acting beyond their jurisdiction.	Certiorari is a corrective writ granted by a superior court to an inferior court or tribunal to ascertain whether a decision made is within its authority.
Stage of issuance	It is issued when a matter is pending before the court.	It is issued when the lower court decides a matter.
Function	Its primary function is to prevent lower courts from acting outside their jurisdiction.	If a decision is made outside the jurisdiction of the court, then it reverses the decision.

As you know, the writ is a vital tool to protect fundamental rights. The Supreme Court or High Courts have their writ jurisdiction to provide relief to a citizen. Now you need to understand the writ jurisdiction of the Supreme Court and High Courts in detail.

Power of the Supreme Court and High Courts to issue writs

You know that every person is born with some rights, such as the right to life, shelter, education, etc., and the power to protect these rights is given to the Supreme Court and High Courts. If government action violates your fundamental rights, you can approach the Supreme Court under Article 32. If you approach the Supreme Court and your application gets rejected by the court, then you can not file the same application in other courts.

For example, Akash was arrested by police without any reason. At age 32, he has the right to file a writ petition to the Supreme Court because his fundamental right has been violated.

Writ jurisdiction of the Supreme Court 

You might have noticed that the Supreme Court has an inherent power, one of our Constitution’s special features. Article 32 tells you that the Supreme Court protects your rights as individuals. It allows you to get justice from the courts when public authorities or other persons violate your rights.

You might have noticed that, in most cases, the Apex Court sends the petitioner to the High Court because the Apex Court is overburdened. It makes sure that you get relief easily.

Article 32 of the Indian Constitution

Once you go through Article 32(1), you will find that this provision confers a right on you and says that you can get relief from the Supreme Court if your fundamental right has been violated. It does not mean that a writ will create any legal right; it only says that you can use writs to protect your fundamental right, which already exists.

Article 32(2) gives the court the power in the broadest sense. It is not limited to the power to issue the high prerogative writs. Still, it is much more extensive and comprises the power to make orders or give such directions and issue such writs necessary to enforce the particular fundamental right. There is no specific provision in the Constitution that provides the procedure to be followed by the court under Article 32(2).

Under Article 32(3), you will find that it provides excellent power to Parliament. Parliament can empower any authority to issue the writs as the Supreme Court issues them under Article 32(2). Parliament can authorize any other Court with the power to issue writs within their jurisdiction as the Supreme Court issues it under Article 32(2).

Article 32(4) provides that the right provided under Article 32 should not be suspended other than on the grounds provided under the Constitution. 

The availability of another remedy under Article 32 does not bar the Supreme Court from entertaining a petition to enforce a fundamental right. After the court is prima facie convinced that a petitioner’s basic right has been violated, the court must provide relief to the petitioner. The petitioner is not required to prove that he has no proper relief or legal remedy available to him and did not get adequate compensation.

Writ jurisdiction of High Courts 

Once you go through Article 226 of the constitution, you will find that under Article 226, High Courts have the power to issue writs. This power of the High Court is essential for the smooth functioning of the judiciary in the state. Under Article 226, you can approach the High Court if your legal or fundamental right has been violated.

Article 226 of the Indian Constitution 

It is provided under Article 226(1) that you can get relief from the High Courts if your legal right or fundamental right has been violated. You can also approach the high court for any other purpose that requires a judicial decision. If you compare Article 226 with Article 32, you will find that Article 226 is wider than Article 32.

Although Article 32 restricts the Supreme Court’s writ jurisdiction to enforce fundamental rights, Article 226 empowers high courts to deal with the infringement of citizens’ essential and other legal rights. This makes the High Court’s writ jurisdiction even broader than the Supreme Court’s.

The territorial jurisdiction has been provided under Article 226(2). You can file a writ petition in the High Court if your right has been violated within the territory of such High Court. You need to understand that High Courts can issue writs even if the authority is located outside the jurisdiction of the High Court.

According to Article 226(3), if you have any other remedy given under any other statute, your petition under Article 226 is not entertained. For example, Arun has filed a writ petition in the high court for violation of his consumer rights. Arun has rights under the Consumer Protection Act 2019. Thus, his petition is not maintainable under Article 226. This provision says you cannot go directly to the High Court without a proper and adequate remedy.

However, if your fundamental rights have been violated, High Courts can accept the writ petition even if you have an alternative remedy.

Under Article 226(4), you will find that the power of High Courts under Article 226 does not affect the power of the Supreme Court under Article 32. You know that the High Courts have the power to issue writs, but still, you can file an appeal directly to the Supreme Court.

Since both constitutional courts can issue writs under the Indian constitution, it is also necessary to clearly understand the scope of their writ jurisdiction.

At this point, you need to understand the comparative study of the writ jurisdiction of both constitutional courts.

Comparative analysis of writ jurisdiction of the Supreme Court and High Courts 

Articles 32 and 226 of the Indian constitution allow you to approach the constitutional courts and get relief against violating your fundamental rights. However, you will find differences in the scope, jurisdiction, and application of both the Articles.

Basis of differences	Article 32	Article 226
Scope of remedies	You can approach the Supreme Court only when your fundamental rights have been violated.	You can approach High Courts if you violate your fundamental and legal rights.
Jurisdiction	Under Article 32, the Supreme Court has original jurisdiction to issue writs. If the apex court issues writs, they apply to Indian territory.	Article 226 provides you with the territorial jurisdiction of High Courts. Each High Court can issue writs only for their respective territories.
Nature of power	The right to file a writ petition under Article 32 is a fundamental right in itself, which guarantees it as a remedy in case of a violation of basic rights.	Filing a writ petition under Article 226 is the discretionary power of High Courts.
Applicability of alternative remedies	It is an extraordinary remedy, and if your fundamental rights are violated, it does not follow any other legal procedures.	If you have any alternative remedy, then high courts do not issue writs under Article 226.

Under the Indian Constitution, different kinds of writs protect fundamental rights. Therefore, it is essential to understand the importance of writs in India.

Significance of writs in India

As you have already understood, the writs have several functions in India, such as protecting your fundamental rights, providing you with justice, and ensuring that all branches of the government take responsibility for their actions. You should know other importance of writs in India, such as;

Protection against arbitrary action of the state

You might have noticed that courts use writs to check the actions of the executive and legislative branches of government. This ensures that people’s rights are not violated by the state’s actions.

Access to justice

Writs allow you to get justice and relief if your rights have been violated. It is not only issued to protect your interest but also to serve social justice. Using Public Interest Litigation (PIL), you can approach the courts and file a petition against violation of environmental laws, human rights, anti-corruption laws, and rights of a particular class of people.

Broad scope and flexibility

As you know, Article 32 and Article 226 protect your fundamental and legal rights, providing you with better protection. By using writs, courts neutralise the tendency of government officials and other institutions to misuse their powers.

Empowering judiciary

When you look at the importance of writs, you will find that the Indian judiciary has also issued various writs on prisoner rights, the environment, and the right to work. Using writs, the judiciary protects your interests and prevents the state from exercising its power unlawfully.

You might have noticed that the Supreme Court and High Courts both have writ jurisdiction to protect fundamental rights. Therefore, you need to understand the concept of concurrent jurisdiction of the Supreme Court and High Courts in detail.

Concurrent writ jurisdiction of the Supreme Court and High Courts 

You should know that the concurrent constitution allows you to get relief either from the High Court or the Supreme Court.

You can find the best examples of concurrent jurisdiction in Article 32 and Article 226 of the Indian Constitution. You can approach the Supreme Court under Article 32 to enforce your fundamental rights. You can also call it the “heart and soul” of the Constitution. Whereas, if you look at Article 226, you will find that High Courts protect fundamental and legal rights. For this reason, the high courts have broader jurisdiction in the matters of the writs because you can also approach the High Courts for other rights.

You have to understand that these two provisions are essential so that you can go to the Supreme Court or the High Court if your rights get violated. However, you will find that both courts’ nature and scope of remedies are entirely different. The main reason behind these dual provisions is to protect fundamental rights at all costs. The concurrent jurisdiction prevents the centralization of judicial power at the Supreme Court.

In Romesh Thappar vs. The State of Madras (1950), the Supreme Court said that if your fundamental rights have been violated, you can directly approach the Supreme Court under Article 32 and are not required to go to the High Court first.

For this reason, the court said that if your fundamental rights are violated, the Supreme Court must take action under Article 32. Whereas Article 226 gives you a statutory remedy. Article 32 is your basic right, meaning it is your right to get a remedy. For this reason, we call Article 32 a ‘guardian and protector’ of fundamental rights.

You might have found the same stance of courts till 1987. Finally, the two-judge bench of the Supreme Court in Kanubhai Brahmbhatt vs. State of Gujarat (1987) said that if you are applying for the violation of your fundamental rights, then you should first approach the High Court. You should not come directly to the Supreme Court. The reason behind this decision was that various cases are pending before the Supreme Court, and it will cause delays in getting relief. 

Because the two-judge bench gave the decision, you cannot say it is binding in case of an important constitutional question, especially when discussing the relationship between Articles 32 and 226.

The concurrent jurisdiction of the Supreme Court and High Courts makes it easier to conduct judicial review and protect fundamental rights at all judicial levels. Now, you must understand how to file a writ petition in India.

Filing of writ petitions

We have already discussed how you can file a writ petition, but there are specific grounds on which you can not file a writ petition. You need to know such grounds to understand the writ process better.

Filing a writ petition is essential for you to get relief from the court when your rights have been violated. You can file a writ petition in the Supreme Court under Article 32 or in High Courts under Article 226 of the constitution. You can file a writ petition by following the steps given below;

Nature of writ petition

Before filing a writ petition, you have to identify the nature of the petition. After you identify the nature, you can proceed to file the petition. For example, Anand has been arrested by a police officer. Now, Anand has to understand the nature of the petition, and only then can he file a writ petition.

As we have already discussed, there are five kinds of writs under the Indian Constitution: Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto. You can differentiate these writs based on their function.

Finding the jurisdiction of the court

After you identify the nature of the petition, you must determine which court has jurisdiction to issue writs in your matter. For example, Anjali’s right to vote has been violated; now, she has to find out which court has jurisdiction to provide her relief.

You need to find out the court’s jurisdiction because Article 32 only protects your fundamental rights. But Article 226 protects your fundamental rights and your other legal rights.

Cause of action

As you file a writ petition, you must know the action that violates your rights. It helps you to present your argument in a better way. When you file a writ petition, you must tell the exact cause of action to the courts.

Drafting of petition

Before you file your writ petition, you should ensure the petition follows the required format. Your petition must include:

• Title
• Affidavit
• Facts of the case
• Legal grounds
• Relief asked by the petitioner

Relevant documentation

When you file your writ petition, you should also present all those documents based on which you are asking for relief. You should present all such documents that violate your rights. It may include a copy of government orders or orders of the authorities. You must be careful while delivering the documents; each document should have a proper name and number. It helps the courts to identify the documents easily during the hearing in the court.

Filing of petition before the proper court

When your petition is written and you attach relevant documents, you must go to the proper court to file your writ petition. You lodge your petition at the court registry, and then the registry will examine it to find the procedural mistakes in your petition. After the examination, the registry will give a number to the petition and a date on which the court will hear your matter.

Service of notice to the respondent

The court will notify the respondents once your petition is accepted at the registry office. This notice contains all information about the writ petition and calls the respondent to come to court on the hearing date. If you file a petition against various authorities, then you must give notice to all of them.

Hearing before the court

Once you file a writ petition, you or your lawyer have to present before the court, and you have to explain what the respondents did wrong to you and how they violated your rights. When the court hears your argument, it will give the respondents to defend themselves.

Interim relief by the court to the petitioner

You must understand that when you file a writ petition, you can ask for interim relief from the court. If the court finds it legal, it can grant you interim relief before the final decision of the case. For example, Aman is detained unlawfully and asks for interim relief from the court. If the court finds it necessary to provide justice to Aman, it can order his immediate release.

Final judgement

When the court hears the argument and evidence of both parties, it makes the final decision. Once you prove that your right has been violated, the court may decide the petition in your favour or reject it. You must understand that the court’s decision is final.

Appeal

If your rights have been violated and you are unhappy with the High Court’s decision, you can appeal before the Supreme Court.

We have already discussed how you can file a writ petition, but there are specific grounds on which you can not file a writ petition. You need to know such grounds to understand the writ process better.

Inapplicability of writs  

As you know, writ petitions can be issued for various purposes, especially when your fundamental rights are violated. But there are certain situations when you cannot file a writ petition before the court. A writ petition is not maintainable if any of the following grounds are present in your case: 

Non-violation of fundamental rights

You have already learned that a writ petition is not maintainable if your rights are not violated. In the case of Bhushan Power & Steel Ltd vs. Rajesh Verma & Ors (2014), the Supreme Court clearly said that you cannot file a writ petition if your fundamental right has not been violated.

If there is an alternate remedy available under any statute

Under Article 226, you have already learned that a writ is not issued if you have any alternative remedy available. In the case of Bhaskar Lal Sharma & Anr vs Monica And Ors (2014), the court said that if you have any relief under any specific law, you cannot file a writ petition under the Indian Constitution.

Respondent is a private party or engaged in non-public function

You can file a writ petition only against public authorities, government employees, or any government representative. If any person is performing any public function and comes under Article 12, then a writ petition can be filed against him. However, you need to understand that you cannot file a writ petition against a purely private person or someone not performing a public function. If a private person violates your rights, you can get relief through civil or criminal courts.

Matters of national security and public order

Generally, you cannot file a writ petition if a case concerns national security. Courts allow a government broad discretion if a matter is related to national security. However, courts may grant you writ petitions if your fundamental right is violated. Courts may give more importance to a government’s order if the matter genuinely concerns national security.  

Matter related to disputed questions of facts.

Typically, writ petitions are not maintainable when they involve disputed facts and an examination of evidence. In such cases, it is preferred that such issues be dealt with in the trial courts.

You must understand the consequences of a brief delay in filing the petition.

Consequences of delay in filing writ petition 

If you file a writ petition, you should do it on time. If your fundamental rights have been violated, you must file a writ petition within a reasonable time. If you don’t explain the reason for the delay in filing a writ petition, the court can refuse your writ petition. You won’t find any prescribed period for filing a writ petition, but it is expected that you will file a petition within a reasonable time. 

You should know that the principle of laches prevents you from getting relief if you file a writ petition after a long period of rights violation. The reason behind such a rule is that a delay in filing a writ petition may cause other parties to obtain some rights, and courts should not interfere with such rights without having a reasonable explanation.

In the case of S.S. Moghe & Ors vs. Union of India & Ors (1981), the Supreme Court said you should be proactive in enforcing your fundamental rights. You should file a petition within a reasonable time when your rights get violated. However, if there has been an unexplained delay on your part, the court has discretion to not grant relief to you.

If there is a continuous violation of rights or the petitioner provides a valid explanation of the delay, such as illness, lack of knowledge, or some unavoidable circumstances, the court may allow a delay in filing a writ petition. In public interest litigation or matters affecting the public, the court is generally lenient, even with long delays, only if it serves the public good. 

Position of Article 32 during the emergency period 

Article 32 is the key provision for protecting fundamental rights, as it allows the individual to directly approach the Apex Court to enforce his fundamental rights. In India, the proclamation of emergency under Article 352 affects fundamental rights drastically. The impact of emergencies on basic rights can be studied under two subheads:

• Position before 1978
• Position after 1978

Let’s discuss each point in detail.

Position before 1978

If you look before 1978, you will find that if the government declares an emergency under Article 352, it suspends all the fundamental rights [except Article 19] under Article 359. Under Article 359, your basic rights are not suspended, but their enforcement is suspended. This also means you cannot go to court to get relief from the court.

For example, the President declares an emergency under Article 352. The President can declare that you cannot go to court to enforce your fundamental right. Although your rights are intact in such a situation, you cannot go to court. If you look back to the emergency of 1962, you will find that the President had ordered the suspension of enforcement of Articles 14, 21, and 22 in the case of Mohd. Yakub, Etc. vs. State of Jammu and Kashmir (1968), the Supreme Court said you should read Articles 13(2) and 359 together. You cannot say that the order of the President under Article 359 is a ‘law’ under Article 13. Therefore, you cannot challenge the order made under Article 359 by saying that it violates fundamental rights.

In the case of Makhan Singh vs. State of Punjab [And connected appeals] (1964), the Supreme Court said that if your rights were violated during the emergency and once the emergency ended, you could not sue the government for damages by saying that your rights had been violated during the emergency.

In another case of Jaichand Lall Sethia vs. State of West Bengal & Ors (1967), the Supreme Court said that you can challenge the order of the President made under Article 359. However, if you are challenging the order of the President, then you should take such ground, which is not covered under Article 358.

In ADM Jabalpur vs. S Shukla (1975), the Supreme Court said you could not file any writ petition before the Apex Court or High Court. Justice Khanna noted that an order under Article 359 could suspend the enforcement of your fundamental rights, but it cannot suspend your legal rights. Your legal rights should remain outside the purview of Article 359(1).

If you go through the decision of the ADM Jabalpur case, you will say that Article 21 was a liability and not an asset in an emergency. Before 1978 (before the Maneka Gandhi case), Article 21 did not protect you against the state’s action. Article 21 became a classic example of a fundamental right working against the very individual for whose protection it was incorporated in the Constitution.

Position after 1978

The decision in the ADM Shukla case significantly changed the emergency provisions in the Indian Constitution, which was enacted in 1978 through the 44th Amendment.

It has been made clear that Article 19 is not suspended in case the proclamation of emergency has been issued on the grounds of armed rebellion. However, Article 19 is automatically suspended as soon as an emergency is proclaimed on the grounds of war or external aggression. Under Article 358(1), a proviso has been added that says that when the emergency is in operation only in a part of India, any executive action can be taken about the area where the proclamation is not in operation.

During an emergency, you cannot challenge the validity of any law because it violates your rights under Article 19. However, if the law has been enacted before the emergency period, then you can challenge the law on such grounds. You can also say that if a law violates your fundamental rights of Article 19 before an emergency, then the government cannot enforce such law during the emergency period.

Before 1978, the executive branch had a lot of power. For this reason, Article 359 was amended through the 44th Amendment. The 44th Amendment allows you to move to the court to enforce your fundamental rights. With this amendment, it was provided that the enforcement of your fundamental rights could not be suspended. The order under Article 359 cannot suspend your fundamental rights given under Articles 20 and 21. It also means that your right to life and personal liberty is protected in all situations.

You must understand that your rights under Article 21 cannot be suspended, even during an emergency. You can move to the Supreme Court or High Court to enforce your fundamental rights under Article 20 and Article 21.

Protecting fundamental rights has allowed more people in court to get justice by using PIL. Therefore, you need to understand the interrelation of writs and PIL in brief.

Writs and Public Interest Litigation

You might have noticed that the term ‘PIL’ is used often in courts. PIL is a legal action that protects the public’s interest in society. If a matter affects the public interest, you can file a writ petition to decide such a question. Anyone can file a PIL, even if he is not directly affected by it or has no personal interest in it. You can say that the PIL is a creative invention of judges to protect the interest of people within the Constitution. PIL is used as a weapon to provide remedy to weaker sections of society. 

PILs are filed mainly before the Supreme Court under Article 32 and High Courts under Article 226. Generally, they are filed to address issues related to environmental degradation, social justice, or human rights violations.

In S.P. Gupta vs. President of India & Ors  (1982),  Bhagwati J. said that any individual can file a writ petition through PIL on behalf of such a person whose rights have been violated. Anyone can file a PIL if there is a breach of public duty or a violation of the constitution of India.

In the case of Balco Employees Union (Regd.) vs. Union of India & Ors. (2001), the Supreme Court said that PIL is maintainable if there is a violation of Article 21 or when the rights of weaker sections of society are affected. A PIL can also be filed when someone cannot approach the court due to unavoidable circumstances.

Difference between Public Interest Litigation and writ petition

The public has two different ways to get relief from the judiciary: writ and PIL. But note that these two terms are different on different grounds.

Basis of differences	Writ Petition	PIL
Definition and purpose	If a person’s fundamental rights or other legal rights are violated, the person can approach the court and get relief through a writ petition.	PIL is filed when individuals, social groups, or even the judiciary think a matter is of more enormous public interest and requires immediate action.
Jurisdiction	Writ petitions can only be filed under Articles 32 and 226 to protect fundamental rights.	A PIL can be filed if the matter is related to the general public interest, and it is not required that the fundamental right of an individual must be violated.
Locus standi	It can be filed only by the aggrieved person whose rights have been violated.	Any individual or organization can file a PIL to protect the interests of someone who cannot approach the court.
Relief sought	In writ petitions, relief given to the individual protects the individual’s rights.	Sometimes, relief given under PIL causes a significant change in society and the government.

Remember, PILs and writs are affected by the principle of res judicata. Therefore, we must explore the doctrine of res judicata.

Applicability of res judicata on writs

You might have read the concept of res judicata under Section 11 of the Civil Procedure Code,1908. ‘Res Judicata’ comprises two words: ‘Res’ means ‘things or matter’ and ‘judicata’ means ‘already decided’. In other words, once a court has decided a matter on merits, parties of a case cannot file another case on the exact cause of action in any other court. 

In India, the concept of res judicata comes from ‘Brihaspati Smriti’. “Brihaspati Smriti” is known as ‘Prang-Nyaya,’ which means ‘previous judgement. ’ If the court has decided the matter, then you cannot come before the court to file another case on the exact cause of action. For example, Vinay filed a suit against Yuvraj for the recovery of rent. The Court decided the matter in favor of Vinay. Neither Yuvraj nor Vinay can file a suit to recover the suit again. 

Remember that if a competent court decides the previous judgement binds the first case only then parties. If you file a writ petition under Article 226, and the High Court dismisses the petition, then you cannot file another petition before the Supreme Court under Article 32.

Do you ever think about what happens if you first go to the High Court and then to the Supreme Court? The answer to the abovementioned question was given in the case of  Arati Ray Choudhury vs. Union of India & Ors. (1974).  The Supreme Court said that if you first move to the High Court and then to the Supreme Court, then res judicata applies to the decision of the High Court. Remember that the court must decide the matter on its merits. If a petition is dismissed on technical grounds, then the rule of res judicata does not apply, and you can approach the Supreme Court under Article 32.

Have you ever wondered what happens if you first file a writ petition to the Supreme Court and then the High Court? This question was decided in the case of Kirit Kumar Chaman Lal Kundaliya vs. State of Gujarat & Ors  (1981). In this case, the Supreme Court said that if you file a writ petition to the Supreme Court and the application is rejected, then the rule of res judicata applies, and you cannot go to the High Court under Article 226. The court also held that if the High Court rejects a petition on merits, the same petition can be filed before the Supreme Court, and the principle of res judicata is not applicable in such a case.. 

Keep in mind that the principle of res judicata does not apply to a writ of habeas corpus. Habeas Corpus protects your liberty; therefore, if you are detained, the court entertains every new petition. The writ of Habeas Corpus is entertained even if the court has dismissed the previous petition on merits.

Writ jurisdiction and contempt proceedings 

We have two articles under the Indian Constitution that give the Supreme Court (Article 129) and High Courts (Article 215) the power to punish for contempt. The term ‘contempt’ is defined under Section 2 of the Contempt of Court Act, 1971. It says that contempt of court means civil contempt or criminal contempt. In other words, any act done or published in writing that defames the courts or judge or interferes with the process of justice is contempt of court.

If a person or authority fails to comply with an order issued under the writ jurisdiction, such disobedience can lead to a civil contempt proceeding. The court can take contempt action to ensure compliance with its writ orders. 

As we know, a writ is used to protect a person’s fundamental or legal rights. If a court passes any order using its writ power and any reason does not enforce it, it can start a criminal contempt case against such a person. For example, the High Court has ordered a municipal corporation to maintain cleanliness in the city; if the municipal corporation ignores the order of the High Court, then contempt proceedings can be issued against the municipal corporation.

Let’s explore the concept of judicial activism and how it expanded the scope of writs in India.

Judicial activism and writs 

Judicial activism can also be defined as the active participation and intervention of the judiciary in the interpretation and application of laws. Sometimes, this kind of activity goes beyond standard constitutional provisions.

You must know that when there is an issue related to your fundamental rights or there is an action that affects the public interest in India, then writs are used by the judiciary to solve such an issue. In most cases, judicial activism is used to handle situations like corruption, environmental pollution, and violation of human rights. But you all know, legislatures typically handle these issues and the executives, but the judiciary can take action even in these cases.

The case of Maneka Gandhi vs. Union of India (1978) is the best example of judicial activism. In this case, the court moved beyond the narrow interpretation of the Constitution and expanded the scope of Article 21. The court protected a person’s fundamental human rights by saying that Articles 14, 19, and 21 are interconnected and should be read together.

Before Vishakha and others vs. State of Rajasthan & Ors. (1997), you won’t find any law related to the sexual harassment of women in the workplace. In 1997, the issue arose, and the Supreme Court gave guidelines, which are also known as ‘Vishaka Guidelines’. It protects women from sexual harassment in the workplace. Under these guidelines, it was made mandatory for organisations to set up committees that deal with cases of harassment. The Apex court issued the writ of Mandamus to issue these guidelines, which tells us how judicial activism plays a vital role in society.

Remember that the judiciary has expanded the scope of Article 21 by including the right to a clean environment as a fundamental right. All such court decisions are essential to protecting environmental rights in India.

In the case of Olga Tellis and Ors vs. Bombay Municipal Corporation and Ors. Etc (1985), the Supreme Court said that people were taken out of their houses without shelter, which violated their right to livelihood. The court issued a writ of Mandamus and ordered the authorities to protect the fundamental rights of the persons living in the slum area. In this case, the judiciary used writs to protect vulnerable groups and applied and restored the meaning of fundamental rights.

In recent years, the scope of fundamental rights has increased significantly. This development is one of the most critical impacts of judicial activism in India. Keep in mind that sometimes the court uses writs against existing laws to protect an individual’s rights.

We live in the modern world, where we depend heavily on the internet and technology. It affects our privacy and security. In the case of Justice K. S. Puttaswamy (Retd.) and Anr. vs. Union of India and Ors. (2018), the Supreme Court said that privacy is a fundamental right of citizens under Article 21. In this case, the court accepted the changing nature of the rights in the modern world. The active participation of the judiciary has expanded the scope of personal liberty in the Indian Constitution. 

The judiciary declared the right to education a part of the right to life, which resulted in the 86th Constitutional Amendment. This amendment provides free and compulsory education to children aged 6-14 as a fundamental right.

As time has passed, writs and judicial activism have become essential features of the Indian legal system. Judicial activism not only protects fundamental rights but also helps to resolve social, political, and environmental problems.

Writ jurisdiction on the global stage

You need to understand that the concept of writs is used worldwide to protect the rights of individuals and ensure that the government is held responsible for its actions. Although the framework and terminology may be different, the concept of writs is the same worldwide.

United Kingdom (UK)

If you try to find the origin of the writs, you will find that they originated from common law principles and is not given in any written constitution. It evolved from the judicial decisions of the courts and statutory law. Earlier, the power to issue writs was only given to the Crown or Queen. The crown used this remedy to provide justice to the country’s citizens, and it was used in governmental matters. It means the Crown used writs to limit government employees’ actions, duties, and duties. Later, it was expanded and made available for various purposes in getting justice.

When they were first invented, there were six prerogative writs: Procedendo, Habeas Corpus, Certiorari, Prohibition, Mandamus, and Quo-warranto. The writ of Procedendo existed for the shortest period and is no longer used. It was used to direct subordinate courts to perform certain functions or not to perform certain functions. 

At present, the power to issue writs in the United Kingdom lies with the superior courts, i.e., the Chancery Division of Courts, which fall under the High Courts of the United Kingdom. In England, many acts were also enacted, which changed the scope of writ jurisdiction in the UK.

United States of America (USA)

If you look into the history of the writ jurisdiction in the US, you will find that it is derived from the common law principles and the Constitution of the US, especially the writ of Habeas Corpus. Remember that, in the US Constitution, special provision has been given to the writ of Habeas Corpus under Article 1 Section 9 Clause 2 of the US Constitution. This provision is also known as the Suspension Clause. The courts can issue writs of Mandamus, Prohibition, Certiorari, and Quo Warranto to provide justice to the people.

Keep in mind that in addition to these writs, the courts in the US can also use the power of judicial review to protect an individual’s rights. This power of judicial review was established in the case of Marbury vs. Madison, 1803.

Let us understand the importance of writ jurisdiction in the modern world.

Modern day relevance

The writs under the Indian Constitution are pretty crucial in this modern era to protect your fundamental rights. You know that the scope of writ jurisdiction in India is increasing daily. The courts interpret the law in such a way that protects your rights and meets the needs of society. You can also understand its importance by going through the following points;

Preventing corruption and misuse of power

Generally, writs are used to protect fundamental rights, but you can also use the writs to prevent corruption in society. It helps you to hold the accountability of public employees. For example, there is the acquisition of land by the government for railway projects. In such cases, public officials can misuse their power and cause illegal acquisition. You can challenge such an acquisition by filing a writ petition.

Helpful in environmental cases

You must have gone through the ‘Ganga Pollution case’. This is one of the best examples to understand how you can use writs for the welfare of society and in environmental matters. You can use writ to challenge any such actions of the government which are harmful to the environment.

Helpful in solving digital age challenges

In the modern world, you are heavily reliant on internet access, and our privacy is the most significant security concern for all of us in the modern day. Justice K. S. Puttaswamy (Retd.) and Anr. vs. Union of India and Ors. (2018) is an example of using writs to protect your privacy in this digital era. You can use writs to defend your right to privacy. Sometimes, technology is used arbitrarily, violating your right to privacy.

Now, you need to understand the future of writ jurisdiction in India.

Future of writ jurisdiction in India

As you already know, the writ jurisdiction is one of the most essential concepts in the Indian Constitution because it protects your fundamental rights. As India evolves socially, technologically, and economically, the scope and use of writ jurisdiction will expand. What would be the possible future of writ jurisdiction in India?

Addressing new human rights issues

Every person has certain fundamental rights. With the increasing number of migrants and refugees, the writ of Habeas Corpus and Quo Warranto will be valid to protect their rights. It will also be helpful in cases related to the environment.

Expansion of High Court jurisdiction

We have already discussed that the High Courts have the power to issue writs to protect fundamental rights and for ‘any other purposes’. Now, this expression has excellent potential to expand the scope of the writ jurisdiction of High Courts. The writs will likely be used to remove mistakes in administrative functions and other public interest matters.

Effect of International law

As the interdependence of countries is increasing day by day, you will find that the writ jurisdictions may expand to resolve international disputes and violations of international law. You may also find that the countries use the writ jurisdiction to enforce the treaties and conventions, especially related to trade, climate change, and human rights.

Resolving the centre-state dispute

There are many instances where the centre and state have encroached on others’ power. The writ of Prohibition and Certiorari may resolve the dispute between them.

Use of technology in writ jurisdiction

After COVID-19, you might have observed that sometimes technology is used in the court process. Once the technology is adopted in the court process extensively, access to the writ petition will be easier for the rural and marginalized section of society. You will also find that various AI tools will be used to make the court process easier, and it will also reduce delay.

Conclusion  

You have already learned that the Supreme Court and High Court have the constitutional power to issue writs under Article 32 and Article 226 of the Constitution, respectively. These writs are orders the courts give to a public authority or individual to do or not do an act.

Under the Indian Constitution, there are five types of writs, i.e., Habeas Corpus, Mandamus, Certiorari, Quo Warranto, and Prohibition. These writs are practical and powerful enough to protect your rights and to compel the authorities to do their duties. The writ of Mandamus can be issued in all those situations where any authority has a duty to perform. Courts use other writs when a person is illegally detained [a writ of Habeas Corpus is issued] or where a lower court acted outside its jurisdiction [a writ of Certiorari is issued].

These writs have expanded the scope of judicial review in Indian courts. However, it is essential to adopt a more easy method of filing a writ petition. Courts should allow a virtual hearing of writ cases. There is a good chance of expanding the scope of writs, such as in cases of the right to internet access.

Frequently Asked Questions (FAQs)

What types of writs are mentioned in the Indian Constitution? 

Writs are judicial orders issued by the Supreme Court and the High Courts that command public authorities or individuals to do or not to do something. Under the Indian Constitution, there are five kinds of writs: 

• Habeas Corpus 
• Mandamus 
• Prohibition 
• Certiorari 
• Quo warranto 

Which provision of the Indian Constitution has a broader scope in issuing writs? 

Article 32 and Article 226, both provisions of the constitution, deal with the issuance of writs. When it comes to issuing writs, Article 226 is wider than Article 32. This is so because Article 32 can be invoked only in cases of violation of fundamental rights. In contrast, Article 226 can be invoked for the enforcement of fundamental rights as well as for any other legal rights.

What happens if anyone files a fake writ petition?

If anyone files a fake and frivolous writ petition, the court will dismiss it and impose a penalty for wasting the court’s time.

Can you file a writ petition in matters related to tax?

Yes, you can file a writ of Certiorari if tax authorities have made an improper or unauthorised order.

Is it possible to file a writ of Habeas Corpus during an emergency?

Yes, you can file a writ of Habeas Corpus during an emergency. Under the 44th Amendment of the Indian Constitution, it is provided that the enforceability of Articles 20 and 21 cannot be suspended during an emergency. Therefore, you can approach the court and get a writ of Habeas Corpus to protect your fundamental rights under Articles 20 and 21. 

Whether an appeal is allowed against the issuance of writs? 

Yes, when a High Court issues the writ, it is appealable before the Supreme Court.

Can you file a writ petition in cases of election disputes?

Yes, you can file a writ of Quo Warranto to challenge the eligibility of a person who gets elected to public office.

Does the principle of res judicata apply in the case where any former writ petition is dismissed? 

If a former writ petition was dismissed on merits, then res judicata does apply. However, suppose the petition was rejected on technical grounds, such as 

• misjoinder of parties, failure to provide security 
• absence of jurisdiction 

on the ground of laches. In that case, the principle of res judicata is not applicable in such cases.

References

• Indian Constitutional Law by M.P Jain, 8th edition.

• Constitutional Law of India by JN Pandey, 58th edition.

Law of Writs by PS Narayana, 8th edition.

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