Concept of writ petition

Reading time: 8-10 minutes.

A concept that is derived from the English legal system, has evolved in many aspects, since its inception in 1774. A writ petition refers to an order issued by a Higher Court to a Lower Court, as a direction, either to carry out an act or deter, restrict them from doing something. It is a specified direction, against an order of the lower court.  Besides this, a writ is issued when the fundamental rights of an individual are violated or infringed upon. The Constitution of India allows for this writ jurisdiction to be invoked in the High Court and Supreme Court, under Article 226 and Article 32, respectively. In the event of a violation of fundamental rights prescribed in Part III of the Constitution, a writ is issued as a remedial measure, to reinforce these said rights.

Origin

In the 13th century England, the King was the supreme authority, vested with powers to pass any order or instructions in any matter. A writ first came into being, when the King’s Bench in England passed a royal order which bore the Royal Seal. The King’s bench exercised extra-judicial power that the common law courts were not empowered with. Common law courts only dealt with cases that necessitated the prevalent law and procedure and did not venture beyond that jurisdiction.  Therefore, matters in which these said courts were powerless to grant relief in, were instead referred to the King’s Bench. Back then, Royal courts in England not only exercised a supervisory jurisdiction over the lower courts, but also the actions of the administrations.  Derived from the Latin term “brave” the term ‘writ’ was an equivalent and was thereof used to describe a Royal order from the King.

The Regulating Act 1773 (enacted by the Parliament of Britain to control territories owned by East India Company), gave authority for the establishment of the Supreme Court in India. In 1774, by way of The Royal Charter, King George III conferred all powers and privileges of the King’s bench in Britain, upon the newly founded Supreme Court. Clause 21 of the abovementioned charter empowered the apex court to issue prerogative writs. Prerogative writs are those orders issued by virtue of the King to monitor administrative actions.

 At this point of time, writs had emerged in India and Supreme Court was bestowed with the powers of issuing the writ of certiorari, mandamus, procedendo (prerogative writ), to the courts beneath it.

Subsequently, the Regulating Act 1781 (enacted to address the shortcomings of 1773 Act), robbed the Supreme Court of its jurisdictional powers, thereof, restricting it to the Presidency of Calcutta only. Since the inception of these writs, various powers of the court were curtailed and modified to suit the Britishers. Before the birth of the Constitution of Indian 1950, only the High Courts (established by High Courts Act 1861) of the presidency towns (i.e. Calcutta, Bombay and Madras) were vested with the power to issue writs of certiorari, mandamus, and prohibition. These terms may sound foreign to the reader, but they will be elucidated upon in the subsequent paragraphs. Even after the establishment of High Courts, there was a territorial restriction on the exercise of writ jurisdiction beyond the Presidencies. It was only after the birth of our Constitution, that explicit powers were handed to the High Courts and Supreme Court vis a vis writ jurisdiction.

Types of writs

There are five writs, namely, habeas corpus, certiorari, mandamus, quo warranto and lastly, the writ of prohibition.

Habeas corpus, of Latin origin, ittranslates to ‘to have the body of’. It is a remedial measure for an individual who is unlawfully or illegally detained/imprisoned. As per Indian penal laws, if a person has been arrested by the police, he is to be produced before the Magistrate within 24 hours of his arrest. If an individual is detained without having violated any law, or if his arrest is unconstitutional; in such situations, the writ of habeas corpus can be opted for in the higher judiciary. It can be issued against private and public authorities, and a person can file this petition on behalf of the detainee.

Mandamus, another Latin term, it means ‘to command’. Its purpose is to ensure that government/public officials discharge their duties effectively. In an event of a public official failing to carry out his duty or abstaining from doing so thereof, this writ can be issued to compel them to do so.  It should be noted that mandamus cannot be issued against any individual, or for any contractual obligation. It can be issued to a public body or corporation, but cannot lie against the president, governor, or state legislature deliberating laws.

Certiorari, perhaps the oldest writ, was a royal demand for the certification of some matter in the King’s time. It essentially means ‘to certify’ and can be issued by a superior court requiring the records of a proceeding that is pending before the lower court/ tribunal. In doing so, the superior court either transfers the case to itself or quashes an order passed by the inferior court. It is a means of obtaining speedy justice when the inferior court exercises powers beyond its jurisdiction or in the deficit of it. This writ is of prerogative nature and is issued against administrative authorities that breach the rights of individuals. It is of preventive and curative nature.

Writ of prohibition, as the name suggests, this writ is issued to lower courts to prevent them from exercising powers beyond their jurisdiction. Popularly known as a ‘stay order’, it issued by the High courts or Supreme Court against an order/decision passed by the lower court. At this juncture, it is imperative to note the difference between certiorari and prohibition. While the former, calls to produce records of an ongoing/pending proceeding in an inferior court, the latter, is a preventive measure for a decision that has already been passed by the lower court. Bearing this in mind, certiorari has a greater weightage than prohibition as the findings of the lower court are deemed to be examined and reviewed by the superior court.

Quo warranto, another word that flows from the Latin dialect, translates to ‘by what warrant’ or ‘by what authority’.  This writ is issued to verify the legality of the usurpation of a public office by an individual. If this occupying of public office is found to be of illegal nature, the higher court issues this writ as an enquiry into it, thereby directing their removal or continuation, whatever the case may be.   A peculiar feature of this writ is that it is restricted to a public office that is created either by a statute or by the Constitution. The claimant must satisfy the court that there was a wrongful usurpation, and consequently, the court will examine the same. This is the only writ issued against an individual and not a body or authority.

High Court & Supreme Court jurisdiction

Having elucidated upon the five types of writs available, it is vital to understand the exercise of writ jurisdiction, specifically conferred upon the High Courts and Supreme Court. The three organs of the government, the Legislature, Executive and Judiciary are all independent of each other. It is important to have checks and balances among the three. Writs are a tool to keep in check the discretionary powers of the administration and judicially review their actions.

An extraordinary power, Article 226 that enables the High Courts, is not restricted to remedying infringement of fundamental rights but also reviews the legality of the administrative decision taken by the government. It is vital to note, that clause (i) of the aforementioned article, reads “ Notwithstanding anything in Article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction,….for any other purpose”. Thus, any power exercised via this article, cannot contravene the powers of the Supreme Court in Article 32. It also clearly states that the powers can be exercised for ‘any other purpose’, thereby not restricting it to fundamental rights alone. But regards the territorial jurisdiction of High courts, it is limited to the place where the cause of action arose. They exercise original and appellate jurisdiction.

Article 32 enables the Supreme Court to exercise writ jurisdiction, for the enforcement of fundamental rights enshrined under Part III of the Constitution. This article guarantees the remedy of any violation or infringement of the said rights. The drafters of our Constitution made sure to give this provides a wide scope; in addition to citing the five types of writs, they also included ‘orders’ and ‘directions’ under clause (ii) of the aforementioned article. The article in its substance purports that public welfare is borne in mind while exercising this power. The powers conferred upon the High courts and Supreme Court are nearly the same, except that the former has a wider jurisdiction and discretion, whereas the latter has powers limited to enforcement of fundamental rights, as it is the ‘protector’, thereof.  The apex court cannot disregard any prima facie case of violation of any fundamental rights.

Landmark cases

ADM Jabalpur v. Shivkant Shukla (1976 AIR 1207)

Popularly known as the habeas corpus case, it flows from the famous Raj Narain case, wherein the then Prime Minister Indira Gandhi’s election was challenged on grounds of electoral malpractices in the Allahabad High Court. During the emergency period from 1975-77, the Prime Minister had enacted the Maintenance of Internal Security Act 1971, thereby detaining persons who disrupted internal security. The detenues under this Act challenged the constitutionality of it and in a long-drawn battle, the judgement was delivered in favour of the ruling government in 4:1 majority. Justice Khanna was lauded for his dissent wherein he stated that an individual cannot be detained unlawfully, but in vain, as the decision did not favour the detainees. The judgement held that no person could contest the arrest made via a writ petition under Article 226 of the High Court.

AK Gopalan v. State of Madras (1950 AIR 27)

This was the first instance of the Supreme Court interpreting fundamental rights. The petitioner sought relief under via Article 32 in a habeas corpus writ. He alleged violation of Articles 13,19,21 and 22, for he was booked under the Preventive Detention Act 1950 and detained in a Madras Jail.  The court stated that every right had to be read in isolation. It held that although the provisions of the said Act are harsh, they do not curtail rights under Article 21 & 22 (right against personal liberty and protection against detention, respectively) and therefore declared the contested provisions of the Act, valid.

Vineet Narain vs Union of India (1 SCC 226)

A writ was filed in public interest in the Supreme Court, with a catena of complaints against the investigation of offences carried out by the agencies like CBI. The petitioner prayed for appropriate measures and appointment of officers to do the needful. The Court in what is known as ‘continuing mandamus’, ordered proper investigation into the matters as well as laid out a series of guidelines to be adhered in such happenings.

Hari Vishnu Kamath vs Syed Ahmad Ishaque (1955 AIR 233)

In this case, the Supreme court elucidated upon the distinction between exercising the writ of certiorari and prohibition in the High Court via Article 226. It clarified that certiorari would be issued to correct errors of inferior courts/tribunals and when they act illegally or in excess of jurisdiction. The case was related to the proceedings of an Election tribunal dealing with a petition filed by a candidate disputing the election of the respondent in the state of Madhya Pradesh. The Court shed light that prohibition is the mere prevention of a decision that has already passed, whereas certiorari is a means of intervention for ongoing proceedings. The case of Issardas And S. Lulla vs Hair and Ors. (AIR 1962 Mad 458) also dealt with both the writs vis a vis Article 226 jurisdiction.

University of Mysore v. C.D Govind Rao (1965 AIR 491)

In the immediate case, the University, appellant no.1 advertised for recruitment for the posts of Professors and Readers. One Anniah Gowda was selected by a board for Reader in English and the respondent challenged the legality of his office via a writ of quo warranto in the High Court. He prayed for show cause under what authority he was appointed. High Court held this appointment as incorrect because the first qualification was not satisfied. Consequently, Gowda appealed in the Supreme Court. The apex court held that the decision of the High Court was incorrect as Gowda possessed an alternative qualification that is, a Master of Arts degree. This case was cited in Sanjay Kumar v. State of Bihar (2018) a fairly recent judgement, wherein a petition was filed for the issuance of the writ of quo warranto for the removal of one of the 5 respondents from the post of Deputy Superintendent in Bihar,  on grounds of illegality and in the public interest.

Conclusion

The concept of writ petitions has contributed greatly to the growth of public interest litigation in India as well as the protection of the fundamental rights enshrined in our Constitution. This ancient mechanism has developed over the years to cater to the needs of aggrieved individuals, permitting them to bring forth their grievances to the higher judiciary. There is N number of writ petitions till date, some that make the headlines and some that do not, but the courts have seemingly entertained them to the best of their abilities, in their endeavour to deliver justice.

Author: Antara Balaji from Symbiosis Law School Hyderabad.

Editor: Harinie.S from Symbiosis Law School Hyderabad.

Leave a Reply