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NAME :- SNEHA BISWAS
ENROLMENT NO:- AU/2021/0006239
ROLL NO:- UG/03/BALLB/2021/008
COURCE NAME:- BALLB(Hons)/ 3rd sem
SUBJECT NAME:- CONSTITUTION
TOPIC: - WRIT JURISDICTION UNDER INDIAN CONSTITUTION
DATE: - 01/12/2022
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Analysis of Five Writs & Historical Background: Indian Constitution's Jurisdiction - Prof., Papers of Law
An in-depth analysis of writ jurisdiction under the indian constitution, focusing on the five types of writs (habeas corpus, mandamus, prohibition, certiorari, and quo-warranto) and their historical background. The meaning of jurisdiction, the origin of writs in india, and the differences between the writ jurisdiction of the supreme court and high courts. It also explains the conditions for issuing each type of writ and the territorial jurisdiction of the government or authorities in issuing quo-warranto.
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NAME :- SNEHA BISWAS
ENROLMENT NO :- AU/2021/
ROLL NO :- UG/03/BALLB/2021/
COURCE NAME:- BALLB(Hons) / 3
rd
sem
SUBJECT NAME:- CONSTITUTION
TOPIC: - WRIT JURISDICTION UNDER INDIAN CONSTITUTION
DATE : - 01/12/
WRIT JURISDICTION UNDER INDIAN CONSTITUTION
ABSTRACT:-
Writ is a remedy of the violation of fundamental rights and other legal rights. There are five types of writs ,which is Habeas corpus,Mandamas, prohibition,cetiotary,Quo-Warrento. Habeas Corpus is calling the public authority in court. Mandamus is to giving order to the authority to doing there duty properly. Prohibition means forbid the lower court to there jurisdiction.Certiorary means to be certify, this issued for transfer a pending case. The meaning of Quo- warrento is what is your authority. These all five writs are issued in supreme court under Article 32 and High court under the Article 226.This two court has variant aspect of writ jurisdiction. there is some differences between these two higher court.
KEY POINT:-
HABEAS CORPUS, MANDAMUS, PROHIBITION, CETIOTARI,
QUO-WARRANTO, SUPREME COURT ,HIGH COURT
RESEARCH METHODOLOGY:-
The present study has referred to secondary sources of data to analyze the writ jurisdiction in India. The secondary data source includes journals, articles, reports published by the government, and websites of different governmental and non- governmental agencies and organizations.
The historical background of writ:-
The origin of writ in drive from the English judicial system. It was with the development of English folk court-moots to the common law court. The writs were passed by the king’s bench of England .In that time a particular fee was charged. The filing of writs were known as purchase of writ.^3 The origin of writs in India was drive from the Regulating Act, 1773 under which Supreme Court was established at Calcutta. After that before 1950 The charter also established 3 high court ,high court of Calcutta ,high court of Bombay, and high court of Madras only who could exercise the writ jurisdiction. Then , after 1950 all high court get the writ jurisdiction power under article 226 .In case of supreme court, in 1950 supreme court was establish in Delhi and get the power of writ jurisdiction under Art 32. A citizen of India can file a writ.
HOW MANY WRITS ARE THERE :-
(^3) SOURCE https://www.legalserviceindia.com/article/l402-Role-Of-Writs-In-The-Administrative- Law.html (last visited in 22th November )
There are five writes. and these five writs are co-related to each other And also goes chronologically. these five writs are discusses bellow. these are-
- HABEAS CORPUS
- MANDAMUS 3. PROHIBITION
- CETIOTARI
- QUO-WARRANTO
HABEAS CORPUS:-
Habeas corpus is basically a ancient concept, But in India it comes from common law of England. so the meaning of the Latin word HABEAS CORPUR is TO HAVE THE BODY. With this writ a order will be passes for calling upon the parson who has detained or arrested another parson to produce that parson latter before the court, and this writ is in order to let the court know that on which ground he has been detaining that parson ,if there is no justification for the imprisonment then the detained parson will be free to go.^4 So in other word we can say by this writ the honorable court directs the authority who has detained another parson, to bring the body of the detained parson before the court so that the court can give judgment about such detention. It is basically a remedy against illegal restriction. The purpose of habeas corpus is to release the parson from illegal detention and also not to punish the detain authority. The subject's legal detention or illegal is the question that a habeas corpus court must decide. The writ cannot be issued if he is, but it must be issued if he is not.^5 (^4) State of Bihar v. Kameshwar,AIR1965 SC 575(577): (1963) 2 SCR 183. (^5) R. v. Home Secy., ex p Greene,(1941) 3 All ER 104 (105).
condition is petitioner must have legal right. Secondly for mandamus the opposite party must have a legal duty to perform. And then it should be applied in good faith and not for any other motive^15 Mandamus can file by the parson himself whose fundamental right has violated ,but there is some circumstances under which mandamus cannot be filed. It cannot issue against the president, against the judge of higher courts and against the private organization.^16 It can be file against the state legislature and parliament ,against the court, against the government office and against local authority. Like panchayet, municipality , against educational institution like university, and against the ‘state’ define under Article 12 of the constitution.
PROHIBITION :-
The meaning of prohibition is ‘TO FORBID’. It is Sent to a lower court or tribunal by a higher court to prevent the latter from exceeding its authority or usurping authority that it does not have Therefore, prohibition directs inaction as opposed to mandamus, which directs activity. So in simple language we can say that prohibition is issued by a higher court when a lower court has considered a case going on beyond its own jurisdiction.^17 It is a judicial writ because it can also issued against a judicial or quasi-judicial authority. In East India Commercial Co.Ltd v. Collector of Customs 18 the court observed "A writ of prohibition is an order directed to an inferior (^15) https://www.srdlawnotes.com/2018/08/conditions-for-issue-of-writ-of-mandamus.html?m=1(last visited in November (^16) SOURCE https://blog.ipleaders.in/writ-petitions-india-file/?amp=1(last visited in 23November) (^17) SOURCE https://byjus.com/ias-questions/what-is-the-writ-of-prohibition/#:~:(last visited in23November) (^18) AIR 1962 SC 1893 (1903):(1963) 2 SCR 338.
Tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise." And the principal of it is theat prevention is better then cure. This writ can issued in both cases whether there is excess of jurisdiction and absence of jurisdiction.
CERTIORARY:-
The meaning of certiorari is ‘TO BE CERTIFY’. , this writ issued by a higher court for the cross examine of an action of a lower court.^19 This writ is issued by a superior court to a inferior court or body who exercising judicial or a Quasi judicial function to remove a suit from such inferior court or body and adjudicate upon the validity of the proceedings or body exercising judicial function this writ cannot use in remove of any executive administrative act. This certiorari can issued on certain ground .Firstly there is excess of jurisdiction ,secondly violation of natural justice and thirdly when there is error of law on lower courts^20. The main abject of it is correcting and preventing the lower court. A writ of certiorari may often be requested by the person whose rights are at stake .But anyone can apply if the issue affects the public at large. The difference, however, is that if an offer relief; but,if the application is made by a party who hasn’t been directly application is submitted by a party who has been harmed,the court should automatically offer relief; but, if the application is (^19) SOURCE https://www.britannica.com/topic/certiorari(last visited in25 November) (^20) DrJ.N.PANDEY.CONSTITUTIONAL LAW OF INDIA.(58TH (^) EDITION )
where The officer lacks the qualifications needed to hold the position of public authority. The parson uses specific powers or privileges in relation to the public office that he illegally holds.
Writ jurisdiction of Supreme Court
The supreme court of India is the superior judicial authority of India and also the highest court of republic India. As it is the most senior court of India it has the final decision in every legal matter except for personal laws 25
. According to the constitution is the guarantor and defender of the fundamental rights of the citizen Under the article 32. However article 32 is itself of fundamental rights. Article 32 (1) ensures that the right to move the Supreme Court by "suitable procedures "in order to uphold the fundamental rights granted by Part III of the Clause (2) of Article 32 of the Constitution grants the Supreme Court the authority to issue relevant writs, orders, or directions, including writs of habeas corpus, quo-warranto, certiorari, mandamus, and prohibition for the enforcement of any of the rights granted by the Constitution's Third Amendment.^26 It is only applicable in case of fundamental rights within the hole territory of India. A citizen candirecly go to the supreme court it is not necessarily by the appeal. But high court also have the power to issue writ in (^25) SOURCE https://en.wikipedia.org/wiki/Supreme_Court_of_India (last visited in29 November) (^26) DR J.N. PANDEY’S CONSTITUIONAL LAW .(58edetion )page 439
case of fundamental right ,so the citizen has the option to moving either high court or supreme court directly.
WRIT JURISDICTION OF HIGH COURT
Article 226 of Part V of the Indian Constitution gives the High Courts the ability to issue writs to any person or authority, including the government, including writs in the form of habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any of them. Each High Court within India's territorial jurisdiction has the authority and power to issue orders, instructions, and writs to any person or authority, including the government, for the enforcement of Part III of the Indian Constitution or basic constitutional rights and other legal rights within its own jurisdiction, in according to Article 226(1)^27 .it can issue Against a person residing, government or authority located within its territorial jurisdiction only Or Outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction.^28 (^27) SOURCE https://blog.ipleaders.in/all-you-need-to-know-about-article- 226 - of-the-indian-constitution/(last visited in30November) (^28) SOURCE https://byjus.com/free-ias-prep/types-of-writs-in-india/(last visited in30 November)