LAKHMI CHAND INSTITUTE OF TECHNOLOGY

DEPARTMENT OF LEGAL STUDIES

SESSION 2018-19

PROJECT ON- CONSTITUTIONAL LAW

TOPIC: WRIT JURISDICTION & TYPES OF WRITS

SUBMITTED TO

DR.UMME ROOMA

ASSISTANT PROFESSOR

SUBMITTED BY

AWNESH MISHRA

LL.B (SEMESTER 1st)

DATE OF SUBMISSION: OCTOBER 2018

 DECLARATION

I Awnesh Mishra declare that the project work entitled “writ jurisdiction & types of writs ” submitted
to LCIT college of law, is an original and authenticated work written by me, under the guidance of
Dr. Umme Rooma, assistant professor of constitutional law. The conclusions therein are based on
material collected by myself.

Awnesh Mishra

LL.B. (Semester 1st)

 CERTIFICATE

This is certify that Awnesh Mishra, student of LL.B 1st semester of LCIT college of law has
completed the project titled “writ jurisdiction & types or writs” under my guidance and completed it to
my satisfaction. The best of my knowledge,

The present work is the result of her own original investigation and study.

Awnesh Mishra Faculty signature:

LL.B (semester 1st )

 ACKNOWLADGMENT

I wish to express my gratitude to Dr. Umme Rooma, the faculty of constitutional law for providing
me opportunity to do my project work on “writ jurisdiction & types of writs”

I sincerely thankful, to Mrs. Neemasri Yadav asst. prof. and class co-ordinator of LL.B for their
guidance and encouragement in carrying out this project work.

I also thankful to college administration for providing me resources of research and opportunity to
embark on this project

Awnesh Mishra

LL.B (semester 1st )

 ABSTRACT

In India the Supreme court & High Courts have the Writ Jurisdiction.

Literally a writ is a formal written order issued by a body with administrative or judicial jurisdiction

The Constitution has constituted the Supreme Court as the guarantor & defender of fundamental rights of
citizens. The Supreme Court is empowered to issue writs including Habeas corpus , mandamus , prohibition ,
quo-warrento & certiorari for enforcement of fundamental rights of an aggrieved citizen. However the writ
jurisdiction of Supreme Court is not exclusive. The writ jurisdiction of Supreme court(Article 32) is concurrent
with that of the High Court (Article 226).

Thus, when the fundamental rights of the citizen are violated, the aggrieved party has the option of moving
either the High court or the Supreme Court directly.

Article 226 of the Constitution empowers the High court’s to issue writs for the enforcement of fundamental
rights and for any other purpose. The phrase “any other purpose” refers to the enforcement of an ordinary
legal right. It means that the writ jurisdiction of high court is wider than that of the Supreme Court.
 TABLE OF CONTENT

DECLARATION ……………………………………………………..I

CERTIFICATE………………………………………………………..II

ACKNOWLADGMENT……………………………………………...III

ABSTRACT…………………………………………………………....IV

1) INTRODUCTION…………………………………………...1

RESERCH AND METHODOLOGY

2) WRIT JURISDICTION OF SUPREME COURT

3) WRIT JURISDICTION OF HIGH COURT

4) DIFFRANCE BETWEEN ARTICLE 32 & ARTICLE 226

5) TYPES ORF WRITS

CONCLUSION…………………………………………………………….

BIBLIOGRAPHY…………………………………………………………….
 1. INTRODUCTION

What is Writ jurisdiction?

In modern democratic countries, the administrative authorities are vested with vast discretionary powers. The
exercise of those powers often becomes subjective in the absence of specific guidelines etc. Hence the need for
a control of the discretionary powers is essential to ensure that 'rule of law' exist in all governmental actions.
The judicial review of administrative actions in the form of writ jurisdiction is to ensure that the decisions taken
by the authorities are legal, rational, proper, fair and reasonable.

Article 32 and 226 of the constitution of India has designed for the enforcement of fundamental rights and for a
judicial review of administrative actions, in the form of writs. It is a constitutional remedy available to a person
to bring his complaint or grievance against any administrative action to the notice of the court. Safeguard of
fundamental rights and assurance of natural justice are the most important components of writ jurisdictions.

Origin and development of writs in India:

Writs were first introduced in India in 1774 by a Royal Charter of Britain. During this period, The East India
Company started to be subjected to parliamentary control. The Charter created a Supreme Court at Calcutta and
conferred on it the right to issue all writs as were issued in England.
Subsequently, Supreme Courts of Judicature were added in Madras in 1800 and Bombay in 1823 with similar
provisions.

Later, the three supreme courts were replaced by High courts in the same places by the Indian High Courts Act
of 1861, but the power to issue writs was confined only to those three high courts and that too within their
jurisdictions only for writs of prohibition and certiorari. The other high courts in India created under the Act did
not have any power to issue writs. Slowly, the authority to issue writs of Habeas Corpus and Mandamus was
curtailed and taken away .
This remained the scenario until 1950.

In 1950, the Constitution of India came into effect. The authority to issue writs of a certain nature was provided
in the constitution to the Supreme Court under article 32 for the protection of Fundamental rights and to the
High Courts under article 226 for the protection of fundamental rights as well as any other rights of any person.

Writs may be issued against any organ of the government or any statutory creation. On the Subject of who may
file a writ petition, The Supreme court in the landmark case Satyanarayana Sinha v. Lal & Co. has given itself
jurisdiction to determine whether any person or group has locus stand to file a petition. The various types of
writs permissible under the Constitution will now be enumerated and discussed. Under the Constitution, the
following kinds of writs can be issued by the courts: the writs of Habeas Corpus, Mandamus, Prohibition,
Certiorari and Quo Warranto.

Rationalization of writs:

With the abolition of the Forms of Action in 1832 and 1833, a profusion of writs was no longer needed, and one
uniform writ came into use. After 1852 the need to state the name of the form of action was also abolished. In
1875 the form of writ was altered so that it conformed more to the subpoena used in the Chancery. A writ was a
summons from the Crown, to the parties to the action, with on its back the substance of the action set out,
together with a 'prayer' requesting a remedy from the court (for example damages). In 1980 the need for writs to
be written in the name of the Crown was ended. From that time, a writ simply required the parties to appear..[9]

Writs applied to claims that were to be heard in one of the courts which eventually formed part of the High
Court of Justice. The procedure in a County Court, which was established by statute, was to issue a 'summons'.

In 1999 the Woolf Reforms unified most of the procedure of the Supreme Court and the County Court in civil
matters. These reforms brought in the Civil Procedure Rules. Under these almost all civil actions, other than
those connected with insolvency, are now commenced by the completion of a 'Claim Form' as opposed to the
obtaining of a 'Writ', 'Originating Application', or 'Summons' (see Rules 7 and 8 of the Civil Procedure Rules).
 Research and methodology

Source of data

In dealing with the topic, I have referred to relevant provisions of the constitutions notably wherever necessary.
I have read many e-books, websites, and books to obtain the right information, which is relevant to this project
work. The data and information given in this project is based on my research upon various gathered books and
websites.

Method of research

The research methodology that has been adopted is purely doctrinal and analytical in nature. Various noted
texts, articles, primary legislations have been studied and a comparative analysis have been made. All the
material referred have been duly be acknowledged. I created this project after analyzing and investigating every
aspect of relevant facts.

Time

It took 1 month to collect all the relevant data and information.

Title

 Writ jurisdiction & types of writs.

Problem

 What type of writ jurisdiction do we have in India and importance of writs jurisdiction?

Rationale

 To study the writ jurisdiction.

 To study the types of writs.

Objective of the project

 To study the writ jurisdiction.

 To study the types of writs.

Review of literature

 Dr Kailash Rai, Legal Ethics 11th edition

 Dr. Kailash Rai, Constitutional law of India 11th edition

2. WRIT JURISDICTION OF SUPREME COURT

(Article 32) of constitution of India provides for enforcement of the fundamental rights guaranteed by the
constitution. As per Article 32(1) the right to move the Supreme Court by appropriate proceedings for the
enforcement of the fundamental rights is guaranteed. This means, in case of infringement of fundamental
rights, the right to move the Supreme Court itself is a fundamental right. To enforce the fundamental rights
guaranteed by the constitution is the duty of the Supreme Court. Where no fundamental right has been
infringed, an application under Article 32 cannot lie. Article 32 does not give the Supreme Court an appellate
Jurisdiction, but it provides the Supreme Court Original Jurisdiction. Article 32(2) provides that the Supreme
Court shall have power to issue directions or orders or writs including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate for the enforcement of any
of the fundamental rights. In exercise of the power of judicial review the court cannot enter into political
question.

Article 32, 136, 226 and 227 is part of the basic structure of the constitution and therefore it cannot be taken
away by the statute.

When Supreme Court can refuse remedy under Article 32

In some circumstances the Supreme Court can refuse to grant the remedy under Article 32. Such conditions
are:

Res Judicata

Except in the petition under Article 32, for habeas corpus, the principle of res judicata applies to petition under
Article 32. In the absence of new circumstances arising since the dismissal of the petition filed in the Supreme
Court under Article 32, a fresh petition under Article 32 on the same matter cannot be filed in the Supreme
Court.

Delay

If there is no reasonable explanation for the delay, the court may refuse to grant relief. It is not a rule of law,
but a rule of practice on the basis of court discretion and the discretion is to be exercised on the light of the
circumstances of each case. In amrit Lal v. Collector , a petition under article 32 was filed in the supreme
court in 1971 challenging the promotion made in 1959. The supreme court refused to entertain it on the ground
of delay.

The Supreme Court may dismiss the petition filed under Article 32, if it is found to be malicious or ill-
motivated.

Misrepresentation or Suppression of Material facts

If found that the petitioner made it clear misrepresentation as to the material facts or suppression of material
facts, the Supreme Court may dismiss the petition at any stage.

Anfractuous Petition

If the petition filed under Article 32 is found to be fruitless, unfruitful or in fructuous, it may be dismissed by
the Supreme Court for the writ of habeas corpus and the detainee has been released during tendency of the
proceedings, the petition my be dismissed on the ground of its having become in fructuous.

Existence of Adequate Alternative Remedy

Even though existence of alternative remedy does not bar the Supreme Court to entertain a petition under
Article 32, however the Supreme Court has held that in the case of adequate alternative remedy it may exercise
its discretion to refuse to entertain a petition file under Article 32. In P.N. Kumar v. Muncipal Corporation of
Delhi the Supreme Court has expressed the view that the citizen should not come directly for the enforcement
of their fundamental rights. They should go to high court first thereafter on being dissatisfied with the
judgment of the high court; they should approach to the supreme court by way of appeal.

Malicious Petition

It the petition filed under (article 32) in the Supreme Court is found to be malicious or ill- motivated, it may be
dismissed by the Supreme Court.
 3. WRIT JURISDICTION OF HIGH COURT

As per Article 226 the High Court has the power to issue writs for the enforcement of fundamental Rights as
well as for any other purposes. Provision of Article 226 says that notwithstanding anything in Article 32, every
High Court shall have power throughout the territories in relation to which it exercises jurisdiction to issue to
any person or authority including in appropriate cases any government within those territories, directions,
orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto and
certiorari or any of them for the enforcement of fundamental rights granted by part III the Constitution and for
any other purpose. The High Court has the power to issue orders, writs or directions to any Government
Authority or person under this Article by exercising jurisdiction.

Clause (4) of the Article 226 of Indian Constitution makes it clear that the power conferred on a High Court by
Article 226 shall not be in derogation of the power conferred on the Supreme Court by Clause (2) of Article
32. The petitioner should file the petition within reasonable time. The Court may refuse to grant relief under
this Article where there is no reasonable explanation for the delay in presenting the petition.

Exhaustion of Alternative remedies before moving to High Court

A prerogative writ is also known as an extraordinary writ because it is only issued when alternative remedies
have been exhausted. Although this restriction does not extend to the enforcement of Fundamental Rights. The
court has laid down a precedent for the same.

This is known as the rule of exhaustion of remedies. The court has justified the same in the case of Union of
India v. T.R. Varma AIR 1957 SC 882 and held that the rule of exhaustion exists so that a person is not
allowed to circumvent existing statutory proceedings by approaching the High Court under Article 226

Further, the Supreme Court has provided in the cases of U.P. Jal Nigam v. Nareshwar Sahai Mathur 1 SCC
21 and Tigahur Paper Mills Co. Ltd v. State of Orissa 142 ITR 663, certain grounds on which the court may
issue writs even if there are other remedies available. They are as follows:

1. When the remedies provided are not well suited to the situation at hand.
2. When the alternative remedy is inadequate to meet the needs of the case.
3. When there is an unreasonable amount of delay.
 4. When there is complete lack of jurisdiction to try the case.

Jurisdiction of the High Court

The jurisdictions of the High Courts have also been provided in Article 226 of the Constitution, and they can be
divided into two part:

Territorial

The High Courts have the right to issue writs within the territory of the state which the High Court is concerned
with. Under Article 226(2) the court has been granted a certain degree of extra-territorial jurisdiction as well.
High Courts are allowed to issue writs to any government, authority or person outside their territorial
jurisdiction if the whole or part of the cause of action arises in their concerned state.

Subject matter

High Courts have been granted a large ambit to exercise this power. A High Court can issue writs not only for
the enforcement of Fundamental Rights given in Part III of the Constitution but also non-Fundamental Rights
for which the Constitution of India has used the words “for any other purpose” to widen the scope of High
Court’s Jurisdiction.
4. DIFFRANCE BETWEEN ARTICLE 32 & ARTICLE 226

Article 32

1. Article 32 empowers the Supreme Court to issue writs.

2. Article 32 is a fundamental right, and it is included in Part –III of the Constitution. Article 32 is a basic
feature of the Constitution. Article 226 is a fundamental right.

3. during the period of emergency, the fundamental rights (Excepts the articles 21 and 22) can be suspended.
Therefore, Article 32 can also be suspended during emergency Period.

4. The applicant can approach the Supreme Court as a right, being it is fundamental right.

5. Article 32 empowers the Supreme Court to issue the writs only when the Fundamental Rights are violated
or threatened.

Article 226

1. Article 226 empowers every High Court to issue the writs.

2. Article 32 is itself a fundamental right. Article 226 is not a fundamental right.

3. The President of India cannot suspend Article 226 during the period of Emergency

4. Article 226 is not a right as that of Article 32. The High Court may issue writs according to its
discretionary power.

5. Article 226 enables the High Court to issue orders to writs in the nature of habeas corpus, mandamus,
prohibition, certiorari, quo-warranto, to protect aggrieved and any other purpose.

226 is wider than 32.

Biggest difference is that Writs under Article 32 are issued only when Fundamental Rights under Part III of
Constitution is violated (barring few exceptional cases where S.C. allowed non FR cases)Whereas, High
Court may issue writs also in cases where Legal Rights of a person has been violated in addition to
Fundamental Rights. Also, writs under 32 remain suspended during emergency, this not the case in 226.
 5. TYPES OF WRITS

There are five types of writs which can be issued by the High Courts, but Article 226 has also given the power
to issue other writs if they are of like nature to the five types of writs expressly spelled out in the Constitution.
The types of writs are as follows:

Habeas Corpus

Habeas corpus is Latin terms which translate to “you have the body.” This type of writ is used in cases of illegal
detainment and imprisonment. This writ allows the court to direct the detainer to appear before the court and
give a valid reason for the imprisonment or detention. They must provide proof that it is legal, thus the onus of
proof is on the detainer, and he must show proof of authority to do the same. If the court finds that the person
has been illegally detained, it can order the detainee or prisoner to be set free.

Scope and Grounds

The court has greatly expanded the scope of this writ as it protects the right to life and liberty. In the case
of Sheela Bharse v. State of Maharashtra AIR 1983 SC 378, the court expanded the scope of this writ by
adjudging that it is not necessary that the detainee should be the petitioner. An interested party who has some
connection with the case may also do so.

In the case of Kanu Sanyal v. District Magistrate AIR 1973, SC 2684 the court held that it is not necessary to
produce before the court the detainee.

Prohibition

The writ of prohibition is issued by the High Court to judicial and quasi-judicial bodies, refraining the said
bodies from continuing with any proceeding which is in excess of their jurisdictions. The writ of prohibition can
be issued only when the case is continuing.
Scope and Grounds

In the case of Calcutta Discount Co. Ltd. v. ITO AIR 1961 SC372, the Supreme Court held that when a
subordinate court or tribunal is shown decisively that they have acted in excess of their jurisdiction, the court
will issue a writ of prohibition regardless of whether there exists an alternative remedy or not.

Mandamus

Mandamus is a Latin term meaning “to command,” and it is a writ which is issued to any person or authority
who has been prescribed a duty by the law. Mandamus cannot be issued to a private person or company with
private obligations. It also cannot be issued to enforce a private contract. This writ compels the authority to do
this duty. Mandamus does not create a new duty instead it compels the performance of an already existing duty.

Scope and Grounds

Like the other prerogative writs, the court has taken on the burden of setting the parameters for the application
of the writ of Mandamus.

In the case of, State of West Bengal v. Nuruddin(1998) 8 SCC 143, the Supreme Court held the writ of
mandamus is a personal action where the respondent has not done the duty they were prescribed to do by law.
The performance of the duty is the right of the applicant.

In Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and
Ors. v. V. R. R Udani and Ors. AIR 1989 SC 1607, the court held that it is not necessary that the duty is
imposed by statute; mandamus may apply even in cases where the duty is imposed by common law or custom.
The ambit of mandamus is very wide, and it must be available when an injustice has occurred. It should not be
bogged down with too many technicalities

Quo Warranto

Quo warranto is the Medieval Latin term for “by what warrant” and it is the writ which is issued directing
subordinate authorities to show under what authority they are holding the office. The writ cannot be issued to a
person working in a private field. This writ is issued to a person in an office, the legality of which is being
questioned.
Certiorari

Certiorari means “to certify,” and it is a writ which is issued by the High Court to subordinate judicial or quasi-
judicial bodies directing them to transfer the records of a particular case in order to ascertain whether the court
has the jurisdiction to give the order or whether it is against the principles of natural justice. A writ of certiorari
is corrective in nature.

Scope and Grounds

The scope of the writ of certiorari has been given in the case of Hari Vishnu Kamath v. Ahmad Ishaque AIR
1955 SC 233 as follows:

1. When there is an error of jurisdiction.

2. When the court has not given the proper time for both parties to be heard or has violated principles
of natural justice.
3. This writ is supervisory in nature, and thus the High court cannot review the findings of the lower
courts.
4. If the error is evident.

Difference between Certiorari and Prohibition

Both in case of certiorari and prohibition, the High Court passes an order directing judicial and quasi-judicial
authorities when in excess of jurisdiction. The difference between the two is given below:

1. A writ of prohibition can only be issued when the case is pending before the court or tribunal.
2. A writ of certiorari is issued after the final order has been passed by the court or tribunal.
 6. CONCLUSION

In our country the judiciary or law is supreme. Writ jurisdictions are judicial reviews of administrative actions.
Judiciaries always stand to ensure that all administrative actions are confined to the limits of the law. A judicial
review examines

•whether the authority has exercised its powers.

•Whether the authority has abused its powers.

•Whether the authority has committed an error of law.

•Whether the authority has violated the principles of natural justice.

•Whether the authority has infringed the fundamental rights of persons etc.

Thus, the writ jurisdictions act as judicial restraints of policy decisions which are unreasonable, unfair and
against public interests.

Through the provision of Article 226 and 32 and its writ jurisdiction in the nature of habeas corpus, mandamus,
certiorari, prohibition, quo-warranto our judicial system commands that there is supremacy of law in country
and no one is above whether its government or its organ everyone have to be accountable towards the judiciary
therefore this shows that our judicial system is independent of any other influences
 BIBLIOGRAPHY

Book referred

 Dr. Kailash Rai , Constitutional law of India 11th edition

 Dr. Kailasg Rai, Legal ethics 11th edition

Website referred

 http:// www.leaglbites.in
 http://www.indiastudychannal.com
 http:// www.leadthecompetition.in