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Writ Jurisdiction Of High Courts

What is a Writ

A writ is a formal written order or directive issued by a court or other authoritative body. Writs are legal documents that command an individual, official, or authority to do a specific action or refrain from doing something. They are often used to protect individual rights and ensure justice in legal matters.

Writ Jurisdiction

• A person whose rights have been violated by an arbitrary administrative action may seek appropriate redress from the Court.

• Articles 32 and 226 of the Indian Constitution confer writ jurisdiction on the Supreme Court and High Courts, respectively, for the enforcement/protection of an individual's fundamental rights.

• These directions, orders, or writs may be issued to enforce fundamental rights or for any other reason.

The fundamental rights of citizens are guarded by the Supreme Court. It is regarded as the "guarantor" and "defender" of India's people' fundamental rights. It has the authority to issue the following five writs: prohibition, quo warranto, certiorari, quo warranto, and habeas corpus.

The only courts with the authority to exercise writ jurisdiction are the Supreme Court and the High Courts. While article 32 grants it to the Supreme Court, article 226 grants it to the high courts.

Difference between Writ Jurisdiction of High Court and Supreme Court

Article 226 empowers the High Courts to issue writs not only for the enforcement of fundamental rights but also for any other legal right. Thus, writ jurisdiction of the High Court is wider than that of Supreme Court because the SC can issue writs only for the enforcement of fundamental rights under Article 32.

The remedy provided under Article 226 of the Constitution is a discretionary remedy of the court and thereby cannot be claimed as a matter of right.

Thus, unlike the Supreme Court, which must issue writs when fundamental rights are violated, the High Court has discretion when granting writs.

Under Article 226, a writ petition can be filed before any High Court within whose jurisdiction the cause of action arises, either wholly or in part.

It is immaterial if the authority against whom the writ petition is filed is within the territory or not.

Against Whom Writ Lies

Article 226 does not state that the Writ will not be issued only to "State". It uses the expression, "any person or authority". The question as to whether a Writ will be issued against a Non governmental entity, has been the subject matter of number of cases. It has been held that the person or authority on whom the Statutory duty is imposed, need not be a Public official or public authority. A mandamus could be issued to a Company or to an official of a Society to compel them to carry out their Statutory obligation or fulfill public responsibilities.

The Supreme Court in the case of U.P. State Coop Land Dev Bank Ltd v. Chandra Bhan Dubey - AIR 1999 SC 753 held

When the language of Article 226 is clear, we cannot put shackles on the High Courts to limit their jurisdiction by putting an interpretation on the words which would limit their jurisdiction. When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals whether incorporated or not, or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast, this court has laid down certain guidelines and self-imposed limitations have been put there subject to which High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances. High Court does not interfere when an equally efficacious alternative remedy is available or when there is established procedure to remedy a wrong or enforce a right. A party may not be allowed to bye-pass the normal channel of civil and criminal litigation. High Court does not act like a proverbial 'bull in china shop' in the exercise of its jurisdiction under Article 226.

Civil Procedure Code & Writ Petitions

The Full Bench of the Hon'ble Punjab & Haryana in the matter Teja Singh v. The Union of Territory of Chandigarh and others (1982 PLR 160) while considering the question as to whether provisions of the Civil Procedure Code would apply to the writ proceedings held as under:

1) That in the matters which have not been specifically dealt with by the Writ Rules, the provisions of the Civil Procedure Code, so far as they can be made applicable, would apply to the proceedings under Article 226 of the Constitution.

2) That the explanation added to Section 141 of the Civil Procedure Code, by the Amendment Act, does not in any way nullify the effect of rule 32 of the Writ Rules.

3) Then when a writ petition is dismissed after contest by passing a speaking order, then such decision would operate as res judicata in any other proceeding such as suit, a petition under Article 32 etc.

4) That if a petition is dismissed only on the ground of laches or the availability of an alternate remedy or on a ground analogous thereto, then any other proceeding will not be barred on principle of res judicata.

5) That even in cases where a petition is dismissed on the ground of alternate remedy or on a ground analogous thereto, a second petition on the same cause of action under Article 226 would be barred.

6) That there is an exception to proposition (5) that where the first petition is dismissed on the ground that alternate remedy under the Act has not been availed of, then after availing of the statutory remedy under the Act, a second petition may be maintainable on the principle that the same has been filed on a cause of action which has arisen after the decision of the appropriate authority under the Act.

7) That a second petition on similar facts and in respect of the same cause of action by the same party would not be maintainable even if his earlier petition has been disposed of by one word 'Dismissed'.

8) That the provisions of Order 22, Civil Procedure Code would apply to the proceedings under Article 226 of the Constitution.

9) That provisions of Order 23, Rule 1 of the Civil Procedure Code would apply to the writ proceedings and that a petition which has simply been got dismissed as withdrawn would be a bar to the filing of a second petition on the same facts and in respect of the same cause of action.

10) That the provisions of the Limitation Act are not applicable to the writ proceedings or the miscellaneous applications filed in the writ proceedings.

Types of Writs:

Habeas Corpus:

The full name of the writ is Habeaus Corpus ad Subjiciendum. `Habeas Corpus' literally means "to have a body of". This writ is used to release a person who has been unlawfully detained or imprisoned. A writ of habeas corpus is in the nature of an order upon the person who has detained another to produce the latter before the court, in order to let the court know on what ground he has been confined and set him free if there is no legal justification for the imprisonment.

When Habeas Corpus May Lie

The writ of habeas corpus is available in all cases of wrongful deprivation of personal liberty. The Constitution confers ample powers on the Supreme Court and all High Courts in the matter of issue of a writ of habeas corpus. The Supreme Court or High Court can issue this writ against both private and public authorities. Circumstances of unlawful detention are:

• The detention was not done in accordance with the procedure laid down. For instance, the person was not produced before a Magistrate within 24 hours of his arrest.

• The person was arrested when he did not violate any law.

• An arrest was made under a law that is unconstitutional.

Habeas Corpus can not be issued in the following cases:

• When detention is lawful

• Detention is by a competent court

• Detention is outside the jurisdiction of the court

Who can apply?

Generally Habeaus Corpus is moved by the person detained or in custody or by a friend or relative of such person but not by a stranger, but the court may not refuse to act on a strangers application which brings to the knowledge of the court the illegality of the detention.

That further any public spirited person can approach the Court. Therefore this writ is an exception to the general principle that a writ can be filed only by the person whose rights have been infringed.

In the matter Sunil Batra v. Delhi Administration (1980 AIR 1579), an application was made to the Supreme Court through a letter written by a co-convict on the maltreatment of the prisoners. This letter was taken up by the Supreme Court and it issued the writ of habeas corpus stating that this writ can not only be used against illegal arrest of the prisoner but also for his protection against any maltreatment or inhuman behaviour by the detaining authorities.

Mandamus:

Mandamus' means `we command'.

It is issued by the Court to direct a public authority to perform the legal duties which it has not or refused to perform. It can be issued by the Court against a public official, public corporation, tribunal, inferior court or the government. It however cannot be issued against a private individual or body, the President or Governors of States, or against a working Chief Justices.

Mandamus further cannot be issued in the following circumstances:

• The duty in question is discretionary and not mandatory.

• For the performance of a non-statutory function.

• Performance of the duty involves rights of purely private nature.

• Contractual Obligations

• Where such direction involves violation of any law.

• Where there is any other remedy available under the law.

The writ of mandamus possesses several distinctive features:

• Its ability to compel the performance of a specific duty or act. It is a remedy used to enforce a clear legal right, ensuring that public officials, lower courts, or government agencies fulfill their obligations in accordance with the law. The right must be well-established and not subject to dispute.

• The writ of mandamus allows the higher courts to examine the actions or inactions of public officials or authorities to ensure they are in compliance with the law. The court reviews the legality and validity of the actions and may issue the writ to correct any deficiencies or omissions.

• Issuance of Mandamus is subject to the court's discretion. The court assesses the merits of the case, considers equitable factors, and exercises discretion in determining whether to grant the writ.

• Failure to comply with mandamus may result in contempt of court. Contempt proceedings can be initiated against the party or entity that fails to fulfill the duty or act as commanded by the court. Contempt sanctions can include fines, imprisonment, or other punitive measures.

In the matter State of Mysore v. KN Chandra Sekhara (AIR 1965 SC 532) the Hon'ble Supreme Court held that the Court could set aside the proceedings of the Public Service Commission in respect of recruitment and direct preparation of a fresh list according to law. But the court cannot pass an order directing the Commission to include the names of the six petitioners in the list merely because they have applied to the High Court. It was held

"11. It may at once be observed that the order passed by the High Court cannot in any view of the case be sustained. The High Court could, if it held that the notification issued by the Commission and the appointments made by the State pursuant thereto were made in violation of the statutory rules, quash the list but the High Court could not direct that the names of six persons merely because they had applied for setting wide the list of candidates selected for promotion be incorporated in that list. The direction made by the High Court was in the nature of mandamus. Such a direction could be issued against a person or body to compel the performance of a public duty imposed upon it by law - statutory or common. The commission is undoubtedly a body constituted pursuant to the provisions of the Constitution and has to exercise powers and perform functions entrusted to it by the Rules framed under Article 309. But the order which the High Court made was not for compelling performance of its duty imposed upon the Commission by statute or common law. If the High Court came to the conclusion that the proceeding of the Commission was vitiated on account of some irregularity or illegality, it could declare the proceeding void. The High Court however held that the orders including respondents 4 to 18 to the petitions in the list of persons eligible for appointment should be allowed to stand, because the petitioners in the petitions before it did not insist on the issue of a writ of quo warranto. If the High Court was satisfied on an application specifically made in that behalf that the persons who were occupying posts to which they were appointed contrary to the rules governing the appointment and consequently were not competent to occupy the posts, it is difficult to appreciate the ground on which the High Court would be justified in declining to pass appropriate orders. Either the High Court could set aside the proceeding of the Commission and direct preparation of a fresh list according to law, or the High Court could dismiss the petitions because in its view the list was regularly prepared. But the order passed by the High Court maintaining the inclusion of respondents 4 to 13 in the list and then directing the Commission to include the names of the six petitioners in the list merely because they had applied to the High Court is without authority."

Prohibition:

It is issued by the High Court or the Supreme Court to the subordinate court or the tribunal to prevent them from exceeding their jurisdiction which has not been vested upon them under the law. It cannot be applied to statutory bodies, administrative agencies, or private individuals or businesses.

Only judicial and quasi-judicial organisations are subject to it.

Grounds to Issue

Lack of Jurisdiction: The writ of prohibition can be sought when the lower court or tribunal is acting beyond its lawful jurisdiction. Violation of Natural Justice: Natural justice refers to the principles of fairness and due process. If it is alleged that the lower court or tribunal has violated these principles, such as by denying a fair hearing, showing bias, or not giving an opportunity to be heard, the writ of prohibition may be sought to halt the proceedings.

Violation of Basic Rights: If a lower court or tribunal violates the fundamental rights of an individual or entity, the writ of prohibition may be sought.

Errors of Law : If it can be shown that the lower court has misapplied the law or made a significant legal error that affects the fairness or legality of the proceedings, the higher court may issue the writ to prevent further erroneous actions.

Acts unconstitutional or ultra-vires: The writ of prohibition can be sought when a lower court or tribunal acts in a manner that is unconstitutional or beyond its lawful authority.

Excess of Jurisdiction: This occurs when it goes beyond the powers conferred upon it or acts in a manner that is arbitrary or unreasonable.

Certiorari:

It is issued by the High Court or the Supreme Court to the judicial or quasi-judicial authorities when such authority passes the order without having jurisdiction in such case, exceeding the jurisdiction conferred upon it, or when it violates the principle of natural justice. It is issued against a lower court or tribunal in order to transfer the matter to another superior body for careful consideration. It is corrective in nature and is aimed at preventing overstepping by the judicial authorities.

When Certiorari is issued

1. Where the court considering the matter has not been constituted properly as per the law, like the requirements of members, etc.

2. Where the subject matter of inquiry lies beyond the scope of the body's powers as per the law. Correcting errors of Jurisdiction.

3. When the jurisdiction has been based on a wrong assumption of facts.

4. When there is a failure of justice due to violation of principles of natural justice or presence of elements like fraud, collusion, or corruption.

5. Even though the body has acted well within the limits of its jurisdiction, a decision can be quashed if there is a blatant error prima facie. The error here means an error of law.

The Court issuing writ of Certiorari acts in exercise of a supervisory and not appellate jurisdiction. The Court does not review the findings of fact reached by the inferior court or tribunal even though they suffer from an error. Under the powers granted by the writ, the court cannot act as a court of appeal or check an error of fact. It can be employed in cases where there is an error of law, or when it can be shown that there has been a violation of the principles of natural justice. But not on the basis of an error of fact solely. However, whether there has been such an error or not is a matter of the court's discretion.

In a recent judgment titled Central Council For Research in Ayurvedic Sciences & Anr. v. Bikartan Das & Ors (Civil Appeal No. 3339 of 2023) the Hon'ble Supreme Court reiterated

"77. The purpose of certiorari, as we understand, is only to confine the inferior tribunals within their jurisdiction, so as to avoid the irregular exercise, or the non-exercise or the illegal assumption of it and not to correct errors of finding of fact or interpretation of law committed by them in the exercise of powers vested in them under the statute. The accepted rule is that where a Court has jurisdiction it has a right to decide every question which crops up in the case and whether its decision is correct or otherwise, it is bound to stand until reversed by a competent Court. This Court in G. Veerappa Pillai v. Messrs Raman and Raman Ltd. Kumbakonam, Tanjore District and Others, (1952) 1 SCC 334 observed:

"26. Such writs as are referred to in Article 226 are obviously intended to enable the High Court to issue them in grave cases 61 where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice, or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record, and such act, omission, error, or excess has resulted in manifest injustice. However extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the High Court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is the proper view to be taken or the order to be made.""

Quo Warranto:

It is issued by the court to inquire into the legality of the claim made by the person who is holding a public office. The ministerial office cannot be the target of it. This writ is used to determine who has the legal authority to hold a public office in the event of a disagreement.

Some of the conditions that are often required for filing a writ of quo warranto are discussed as follows:

• The petitioner must have legal standing, which means they must have a direct and personal interest in the matter. If the petitioner does not have a direct and personal interest in the matter or fails to demonstrate that they have been directly affected by the alleged unlawful occupancy or abuse of authority, the court may refuse to entertain the writ due to lack of standing.

• If there are other adequate legal remedies available to address the issue, a court may refuse to issue the writ of quo warranto.

• Quo warranto is applicable to challenges against individuals holding public offices or positions.

• There may be specific time limitations within which a quo warranto action must be initiated after the challenged appointment or occupation of an office. The petitioner must file the writ within the prescribed time limit from the occurrence of the alleged unlawful act or discovery of the violation.

• The court or authority in which the writ is filed must have jurisdiction over the subject matter and the parties involved.

• The petitioner must provide sufficient evidence to support their claim and allegations. Grounds for Challenging Authority

The grounds on which a writ of quo warranto can be issued are listed as follows:

• Lack of Eligibility: The person holding the office may be challenged on the grounds that they do not meet the eligibility criteria required by law.

• Abuse of Authority: If the person holding the office is accused of abusing their powers or acting beyond the scope of their authority.

• Disqualification: The writ can be filed if it is discovered that the person holding the office has become disqualified from holding it due to certain factors.

• Conflict of Interest: If there is a conflict of interest that disqualifies the individual from holding the office.

• Dual Office Holding: The writ can be filed in cases where holding multiple public offices simultaneously is prohibited by the law.

• Incapacity: If the officeholder becomes incapacitated or cannot perform the office's duties due to physical or mental reasons.

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.

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

Certain grounds on which the court may issue writs even if there are other/alternate remedies available. They are as follows:

• When the remedies provided are not well suited to the situation at hand

• When the alternative remedy is inadequate to meet the needs of the case.

• When there is an unreasonable amount of delay.

• When there is complete lack of jurisdiction to try the case.

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