Writ Petitions and Appeals before the Hon’ble Courts

Constitutional philosophy of Writs:

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A person whose right is infringed by an arbitrary administrative action may approach the Court for appropriate remedy. The Constitution of India, under Articles 32 and 226 confers writ jurisdiction on Supreme Court and High Courts, respectively for enforcement/protection of fundamental rights of an Individual.  


 There are five types of Writs - Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo warranto. 

  • Habeas Corpus. "Habeas Corpus" is a Latin term which literally means "you may have the body"
  • Mandamus. Mandamus is a Latin word, which means "We Command" 
  • Certiorari
  • Prohibition 
  • The Writ of Quo-Warranto  

Writs In The Administrative Law   

Administrative law has greatly demarcated the checks, balances and permissible area of an exercise of power, authority and jurisdiction over administrative actions enforced by the any State, Governmental agencies and instrumentalities defined under Article 12 of the Constitution of India. And the judiciary is dynamically carving the principles and exceptions, while making the judicial review of administrative actions.
 

The administrative law is that branch of law that keeps the governmental actions within the bounds of law or to put it negatively, it prevents the enforcement of blatantly bad orders from being derogatory.
 

The Courts have constantly tried to protect the liberties of the people and assume powers under the Constitution for judicial review of administrative actions. The discretionary powers have to be curbed, if they are misused or abused. The socio-politic Institution need not cry, if the courts do justice and perform the substantial role. That is the essence of justice. It is submitted, the trend is to read the social justice and to translate in reality. The welfare State has to discharge its duty fairly without any arbitrary and discriminatory treatment to the people in the country. If such powers come to the notice of the Courts, the courts have raised the arms consistently with the rule of law. Today the Government is the provider of social services; new form of property like jobs, quotas, licenses and mineral rights etc. The dispenser of special services cannot therefore act arbitrarily. Courts laid the standard of reasonableness in Governmental action. 

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Writ of Habeas corpus

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The above phase is derived from the Latin phase habeas, 2nd person singular present subjunctive active of habere, meaning “to have”, “to hold”; and corpus, accusative singular of corpus meaning “body”, and thus in reference to more than one person, habeas corpora. Literally the phrase will translate into “you may have the body”. The comprehensive phrase habeas corpus ad subjiciendummeans “you may have the person for the purpose of subjecting him/her to (examination)”. These are also there in the opening words of writs in 14th century Anglo-French documents demanding an individual to be summoned before the court or judge, especially to establish if that person is being legally detained or illegally held. The writ is in confidence with the principle of personal liberty enshrined in Art.21 of the Constitution; it is valuable for the freedom of a person. It is a remedy obtainable to a person who is restrained without any legal justification.  Through this writ, the Courts let it know the reasons for detention of the person and if there is no justification, order the authority concerned to set the person free.  The writ of hebeas corpus, thus, entails the authority to produce that individual before the court.  The applicant of this writ may be the prisoner or any person on his behalf to safeguard his liberty.  It seeks immediate relief from unlawful detention whether in prison or private custody. In the case of the Additional district Magistrate of Jabalpur v Shiv Kant Shukla , popularly known as the Habeas Corpus case, in December of 1975, where Five senior judges of Supreme Court opined that with the majority deciding against habeas corpus, permitting unrestricted powers of detention during emergency. In the subsequent case of Kanu Sanyal v. District Magistrate the court in that case held that habeas corpus was essentially a procedural writ dealing with the machinery of justice. The object underlying the writ was to secure the release of a person who is illegally deprived of his liberty  

Writ of Mandamus

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Mandamus literally means a command. This writ of command is issued by the Supreme Court of High court when any government, court, corporation or any public authority has to do a public duty but fail to do so. The writ may also be filed to stop the mentioned parties from doing a particular act that may be detrimental to the general public. It must be noted that a writ of mandamus or command may not be issued against the Indian President or Governor. In India, the sine qua non for mandamus is the existence of a statutory public duty incumbent upon the person or body against whom the mandamus is sought. There must equally co-exist a corresponding right in the petitioner entitling him to claim the enforcement of such public duty. These two preconditions form the foundation for the issue of mandamus. The primary scope and function of mandamus is to “command” and “execute” rather than to “enquire” and “adjudicate”. It cannot be issued to change the decision of a body so as to suit the petitioner. Obligations which are not of statutory nature cannot be enforced by mandamus. The writ petition is not maintainable when a remedy provided for under the Code of Civil Procedure is available. For example, the High Court cannot entertain writ petitions for mandamus to the Government who fails to deposit and pay in the requisite time an enhanced compensation account as ordered by a lower Court. The petitioners in this case would be directed to approach the executing Court for appropriate relief. Supreme Court had held in Union of India v S B Vohra[7] that the object of mandamus is to prevent disorder from failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted.

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Writ of Certiorari

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  If any lower court or a tribunal gives its decision but based on wrong jurisdiction, the effected party can move this writ to a higher court like Supreme Court or High Court.  The writ of certiorari issued to subordinate judicial or quasi- judicial body when they act: 

a) Without or in excess of jurisdiction; 

b) In violation of the prescribed procedure;

c) In contravention of principles of natural justice; 

d) Resulting in an error of law apparent on the face of record. 

The writs of prohibition and certiorari are of the same nature, the only difference being that the writ of prohibition is issued at an earlier stage, before the order is made and the writ of certiorari is available on a later stage i.e. after the order has been passed. A writ of certiorari ia not available for correcting mere errors or fact of law. It is available only when (i) error is manifest and apparent on the face of record, and (ii) grave injustice or gross failure of justice has been occasioned thereby. Also, neither is available when an alternative efficacious remedy by way of appeal or revision is available to the person aggrieved. This was held in  urya Dev Rai v Ram Chander Rai.  

Writ of Prohibition

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A writ of prohibition is a writ directing a subordinate to stop doing something that they may not do, according to law, but are doing. This writ is normally issued by a superior court to the lower court asking it not to proceed with a case which does not fall under its jurisdiction. The writ lies in both for access of jurisdiction or absence of jurisdiction. It is generally issued before the trial of the case or during the pendency of the proceeding but before the order is made. A writ of prohibition is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction in cases pending before it or acting contrary to the rules of natural justice. It is issued by a superior court to inferior courts from usurping a jurisdiction with which it was not legally vested, or in other words to compel inferior courts to keep within the limits of their jurisdiction. Thus the writ is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction which was upheld in S. Govind Menon vs. union of India. Prohibition is not a continuation of the proceedings to be prohibited. Its object is on the contrary to arrest the inferior tribunal’s proceedings. It is a collateral matter progress essentially between the two tribunals, an inferior one and other superior one by which the latter, by virtue its power of superintendence over the former, restrains it within its rightful competence. Its nature is held to depend upon the nature of proceeding to be prohibited. The writ can be issued only when the proceedings are pending in a court if the proceeding has matured into decision, writ will not lie. When the court, before whom the matter is pending, has ceased to exist, in that condition too, the writ of prohibition will not lie because there can be no proceedings upon which it can operate but on the other hand, if the court is functioning, the writ can be issued at any stage of the proceeding before the inferior court or tribunal. It can be issued only against a judicial and quasi-judicial bodyand not against a legislative or administrative body.  

Quo- warranto

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The word Quo-Warranto literally means “by what warrants?” It is a writ issued with a view to restraining a person from acting in a public office to which he is not entitled. Quo Warranto writ is issued against the person of public who occupies the public seat without any qualification for the appointment. It is issued to restrain the authority or candidate from discharging the functions of public office. For example, a person of 65 years has been appointed to fill a public office whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a Writ of quo-warranto against the person and declare the office vacant. Niranjan Kumar Goenka v University of Bihar and Others, Muzzafarpur, The Patna High Court held that writ in the nature of quo-warranto cannot be issued against a person not holding a public office. The writ of quo-warranto to issue when: 1. a) The office is public and of substantive nature; 2. b) The office is created by the State or by the Constitution itself; and 3. c) The respondent must have asserted his claim to the office.  

To Obtain the Writs

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Under the Indian Constitution there are two ways how writs can be obtained, either under Art.32 in the Supreme Court that is the Apex Court of the land or Under the High Court in the State level. Article 32: Under Art. 32 one can obtain writs only for the violation of Fundamental rights in Part III of the Constitution of India, 1950. These days PIL (Public Interest Litigation) has also been one of the ways where one can come to the Supreme Court for invoking writs, where one comes to the court with clean hands for the interest of the public in general or one other way is that of the Special Leave petition (SPL) Under Article 136 of the Constitution where if the Supreme Court finds it pertinent then it can itself accept any matter in which it feels that an important question of law is concerned. Article 226: Under Article 226 of Constitution, the High Court in empowered to grant writs for the violation of fundamental rights or also for remedying violation of any other legal right. It provides a more exhaustive remedy since one can seek, writ remedy for more than just violation of fundamental rights. The High Court also has Supervisory Jurisdiction under Article 227 of the Constitution.  


  

Conclusion

The writ remedy is one of the most powerful remedy given to the people of India by the Constitution. To end the article I must quote the words of Dr. Ambedkar “If I was asked to name the particular Article in this Constitution as the most important without which this Constitution would be a nullity, I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it …….. This in my judgment is one of the greatest safeguards that can be provided for the safety and security of the individual.” No discussion of the Fundamental Rights and Constitution can end without the discussion of the Kesavananda Bharti v Union of India[8] where the massive 13 judge’s bench held the power of Supreme Court under Article 32 to be the basic structure of the Constitution and that it is beyond the amending powers of the Legislature. The Court also held this Power to be one of the most important rights enshrined to the People of India and the protector of all other Rights. [1] F.W. MAITLAND, EQUITY ALSO THE FORMS OF ACTION AT COMMON LAW: TWO COURSES OF LECTURES 299 (A.H. Chaytor & W.J. Whittaker, eds., 1909) at 315. [2] (1976) 2 SCC 521 [3] AIR 1973 SC 2684 [4] AIR 2003 SC 3044 [5] AIR 1973 Pat 85: [6] AIR 1967 SC 1274 [7] AIR 2004 SC 1402 [8] (1973) 1 (Supp.) SCR 1