WRIT Juridiction 2

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INTRODUCTION

Part III of the Constitution of India deals the fundamental rights of the

person. This part is also called the heart of the Constitution, which provides

right to life and liberty, equality before law, freedom of speech and

expression, liberty of thought belief and worship, cultural & educational

right, fair trial and right against discrimination etc. A writ can be filed before

High Court or Supreme Court in case of infringement of the fundamental

rights under Article 226 & Article 32 of the constitution of India

respectively. Supreme Court entertain writ only in those cases where there is

violation of fundamental rights, however under Article 226 a writ petition

can be filed in High Court even in case of infringement of legal rights.

Who can file a writ: Any citizen of India can file a writ petition, however,

a foreigner can also file writ petition for enforcing his right to life and

equality before law. Court can also issue writ in the interest of justice and

public interest.

Grounds for granting Writ:

A writ is granted when there is violation of fundamental right or legal rights

of person and when the inferior court, tribunal, board, or public officer has

acted illegally or exceeded its jurisdiction or have no jurisdiction or there isviolation of principle of natural justice i.e. the petitioner has not been grant

opportunity to be heard or the allegations against him has not been disclosed

to him and there is no other equally speedy and adequate remedy is

available. Writ of habeas corpus can be filed for illegal detention if a person

is illegally detained for more than 24 hours without producing him before a

magistrate within 24 hours. The issues are resolved in the writ when there is

only disputed question of law. The issues of pure facts which need trial are

not resolved in the writ.

Types of Writs:

. Constitution of India broadly provides for five kinds of 'prerogative writs',

namely, Habeas Corpus, Certiorari, Mandamus, Quo Warranto and

Prohibition. Basic details of which are as follows:

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The writ of prohibition is issued by a higher court to a lower court

prohibiting it from taking up a case because it falls outside the

jurisdiction of the lower court. In doing so, the higher court seeks a

transfer of the case to itself

The writ of habeas corpus means 'let us have the body'. It is a writ

issued to a detaining authority to produce the detained person in court

to know cause for detention. If the detention is found to be illegal, the

court issues an order to set the person free.

The writ of certiorari is one of the writs issued by the High Court or

the Supreme court to protect the Fundamental rights of the citizens. It

is issued to a lower court directing it that the record of a case be sent

up for review with all the files, evidence and documents with an aim

to overrule the judgement of the lower court.

The writ of mandamus is an order of a court of law issued to a

subordinate court or an officer of government or a corporation or anyother institution commanding the performance of certain acts or

duties.

The writ of quo warranto is issued against a person who claims or

usurps a public office. Through this writ the court inquires 'by what

authority' the person supports his or her claim.

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ORIGIN OF WRITS

Originally, a writ was a letter or command from the Sovereign, or from some

person with appropriate jurisdiction. Early writs were usually written in

Latin, and royal writs were sealed with the Great Seal. At a very early stage

in the English common law, a writ became necessary, in most cases, to have

a case heard in one of the Royal Courts, such as the King's Bench or

Common Pleas. Some franchise courts, especially in the Counties Palatine,

had their own system of writs that often reflected or anticipated the common

law writs. The writ would act as a command that the case be brought before

the court issuing the writ, or it might command some other act on the part ofthe recipient.

Where a plaintiff wished to have a case heard by a local court, or by an Eyre

if one happened to be visiting the County, there would be no need to obtain a

writ. Actions in local courts could usually be started by an informal

complaint, which may not necessarily need to be written down.

However if a plaintiff wished to avail themselves of Royaland by

implication superiorjustice in one of the King's courts, then they would

need a writ, a command of the King, to enable them to do this. Initially forcommon law, recourse to the King's courts was unusual, and something for

which a plaintiff would have to pay.

For Royal Courts, the writ would usually have been purchased from the

Chancery, although the court of the Exchequer, being in essence another

government department, was able to issue its own writs.

While originally writs were exceptional, or at least non-routine devices,

Maitland suggests that by the time of Henry II, the use of writs had become

a regular part of the system of royal justice in England.

Prerogative writs

The prerogative writs have their origin in the kings prerogative power of

supritendence over the due observance of law by his officers and tribunals

.The "prerogative" writs are a subset of the class of writs, those that are to be

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writ of mandamus -The writ of mandamus is an order of a courtof law issued to a subordinate court or an officer of government or a

corporation or any other institution commanding the performance of

certain acts or duties.

writ of quo warranto-The writ of quo warranto is issued againsta person who claims or usurps a public office. Through this writ the

court inquires 'by what authority' the person supports his or her claim.

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(1) that if a statute empowers an authority,not being the court in the

ordinary sense,to decide disputes arising out of a claim made by one

party under the statute,which claim is opposed by aother party,and to

determine the respective rights of the consenting parties who are

opposed to each other, ther is a lis, and prima facie ,and in the absence

of anything in the statute to the contrary,it is the duty of the authority

to act judicially and the decision of the authority is a quqsi- judicial

act; and

(2)that if a statutory authority has the power to do any act which will

prejudicially affect the subject, then, although there are not two parties

apart from the authorities and the contest is between the authority

proposing to do the act and the subject opposing it, the final

determination of the authority will be a quasi-judicial act provided the

authority is required by the statute to act judicially.

Thus, according to the first poposition if their nare two contesting parties

who are opposed to each other and there is a lis(dispute or contest)

ordinarily the deciding authority shall be held to be under a duty to act

judicially and the decision of that authority to be a judicial or quasi-judicial

act.

The second proposition contemplates the situation where there are no two

contesting parties but thew contest is between the authority and the subjectopposing it.the absence of a lis does not necessarily negative the order being

judicial,5and in such cases ,the authority will be bound to act judicially only

if it is required by the statute to act judicially.6

2. In determining the jurisdiction of writ of certiorari ,the courts of India

have for sometime been mainly guided by principles laid down inR v.

Electricity commrs.7.R v. Legislative committee of the church assembly8

andNakkudda ali v. Jayaratne9.Accordingly ,in order that a body may

satisfy a required test ,it is not enough that it should have legal

5 Shankarlal v.Sankarlal, AIR 1965 sc 5076 Province of Bombay v.khushaldas S. AdvaniAIR 1950 SC 2227 (1924)1 KB 171,2058 (1928) 1 KB 4119 1951 ac 66,78

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authority to determine questions affecting the rights of subjects; there

must be superadded to the characteristics ,the further characteristic

that the body has the duty to act judicially.

3. A writ of certiorari is discretionary;it is not issued merely it is lawful

to do so. There are certain grounds for issue of certiorari as follows;

(a) want or excess of jurisdiction The writ of certiorari goes to a

body performing judicial or quasi-judicial functions for

correcting errors of jurisdiction,as when an inferior court or

tribunal acts without jurisdiction or in excess of it or fails to

exercise it.10In all these cases there is defect of jurisdiction or

power and the writ of certiorari lies.

(b) violation of procedure or disregard of principles of naturaljustice-The writ of certiorari will lie to set aside the decisions in

violation of the principles of natural justice. The law recognizes

two principles of natural justice: (1) Audi alteram partem-it

means hear the other side.it helds that the parties be given

adequate notice and opportunity to be heard.(2) Bias or intrest-

it elds that the adjudicator should be disinterested and unbiased.

(c) error of law apparent on the face of the record- An error of law

in the decision itself may also be amebnable to a writ of

certiorari,but it must be a manifest error apparent on the faceof the proceedings,e.g., when it is based on the clear ignorance

of the provisions of law. An error of fact ,however grave it

may appear, cannot be corrected by a writ of certiorari. The

reason for the rule is that the jurisdiction of the high court to

issue a writ of certiorari is a supervisory jurisdiction and the

court exercising it is not entitled to act as an appellate court.11

5. A writ of certiorari cannot be issued for declaring an act or an

ordinance void.12

10 State of U>P v. Mohd.Nooh,AIR 1958 SC 8611 Syed yakoob v. K.S Radhakrishanan,AIR1964 SC 47712 Prabodh verma v. State of U.P,(1984)4 SCC 251

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which does not belong to it that consideration is irrelevant andthe writ of prohibition has to issue as of right.17

WRIT OF MANDAMUS

Mandamus is a Latin word, which means We Command".Mandamus is an order from a superior court to a lower court ortribunal or public authority to perform act, which falls within itsduty. It is issued to secure the performance of public duties and toenforce private rights withheld by the public authorities. Simply, it isa writ issued to a public official to do a thing which is a part of his

official duty, but, which, he has failed to do, so far. This writ cannotbe claimed as a matter of right. It is the discretionary power of a courtto issue such writs. The features of the writ of mandamus are asfollows;

(a) Mandamus is a judicial remedy which is in the form of an orderfrom a supreme court to any government,court,corporationorpublic authority to do or to forbearfrom doing some specific act

which that body is obliged under law to do or to refrain fromdoing,as the case may be,and which is in the nature of a public

duty and in certain cases of a statutory duty.

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(b) The applicant praying for the writ of mandamus show that hehas a legal right to compel the opponent to do or to refrainfrom doing something or ,in the words of supreme court, theremust be in the applicant a right to compel thre performance ofsome duty cast on the opponent.19 The duty sought to beenforced must have two qualities. (1) it must be a duty of publicnature. (2) the duty must be imperative and not a discretionaryone;in other words ,mandamus will lie to compel theperformance of an absolute duty.

(c) Normally ,a writ of mandamus does not issue to ,or an order inthe nature of mandamus is not made,against private persons.20

17 Followed in Calcutta Discount Co.Ltd v. ITO,AIR 1961 SC 372,38018 A.T Markose:Judicial control of adminstritative action in India,p. 36419 State of M.P v. G.C Mandawar,AIR, 1954 SC 49320 Praga tools Corp v.C.A Imanual (1969) 1 SCC 585

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(d) One of the condition for the grant of the relief of mandamus isthat there must be a demand for a relief and its refusal by theauthority concerned.21

(e) A writ of mandamus cannot issue to the state legislature toprevent it from considering a bill which is allegaed to be in

violation of the constitution.22

(f) Mandamus has very commonly been issued to restrain anadministrative authority from merely commiting an ultra viresact.23 Likewise ,it is issued to prevent the government fromenforcing an unconstitutional act or notification.24

(g) Normally ,the courts must be very cautious and slow in issuingmandamus to the high constitutional functionaries such aspresident of India or Governor of a state.

21 Annapoorna Farming&Fishery Ltd. V.state,AIR 1953 Cal 75622 Chotey Lal v. State of U.P AIR1951 ALL 22823 State of Bihar v. D.N. Ganguly AIR 1958 SC101824 Y.Mahaboob Sheriff &sons v.Mysore state transport authority,AIR 1960SC321

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WRIT OF QUO WARRANTO

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. The writ of quo- warranto is used to prevent illegal

assumption of any public office or usurpation of any public office by

anybody. For example, a person of 62 years has been appointed to fill a

public office whereas the retirement age is 60 years. Now, the appropriateHigh Court has a right to issue a writ of quo-warranto against the person and

declare the office vacant.

The following features of the writ of quo warranto may be noted:

a. The object of this writ to prevent a person who has wrongfully

usurped an office from continuing in that office.25 The writ calls upon

the holder of the office to show to the court under what authority he

holds the office. If the court determines that the incumbent is holding

the office in question illegally, it would pass the order of ouster which

must be obeyed by him.b. Before a citizen can claim a writ of quo warranto, he must satisfy the

court that the office in question is a public office and is held by a

usurper without legal authority and that necessarily leads to the

enquiry as to whether the appointment of the said alleged usurper has

been made in accordance with law or not.

c. There is no question of delay in presenting a petition of a writ of quo

warranto in which the right of a person to function in a certain

capacity is challenged because everyday the person so acts in that

capacity a fresh cause of action arises.26

d. The writ of quo warranto will not lie in respect of an office of aprivate nature.27

e. An application for the writ of quo warranto challenging the

appointment to an office of public nature is maintainable at the

25 University of Mysore v.Govinda rao AIR 1965 SC 49126 S.S Shewale v.Jalgaon borough Municipality,ILR 1958 BOM 11327 R. v. Mousley,(1846) 115 ER 1130,1135

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instance of any private person, although he is not personally

aggrieved.28

WRIT OF HABEAS CORPUS

It is the most valuable writ for personal liberty. Habeas Corpus means, "Let

us have the body." A person, when arrested, can move the Court for the

issue of Habeas Corpus. It is an order by a Court to the detaining authority to

produce the arrested person before it so that it may examine whether the

person has been detained lawfully or otherwise. If the Court is convinced

that the person is illegally detained, it can issue orders for his release.

As regards this writ we may note its features as under:

a. It is a process by which a person who is confined without legal

justification may secure a release from his confinement.

b. The writ is, in form, an order issued by the high court calling upon

the person by whom a person is alleged to be kept in confinement to

bring such person before the court and to let the court know on what

ground the person is confined. If there is no legal justification for the

detention, the person is ordered to be released.

c. Every application for this writ has to be accompanied by an affidavit

stating the nature and circumstances of the confinement.d. A person is not entitled to be released on a petition of habeas corpus if

there is no illegal restraint. The question for a habeas corpus court is

whether the subject is lawfully detained. If he is ,the writ cannot issue,

if he is not, it must issue.

e. The writ of Habeas Corpus is an effective means of immediate release

from unlawful detention, whether in prison or in private custody.

Physical confinement is not necessary to constitute detention. Control

and custody is sufficient.29

f. If in a plea for habeas corpus the detaining authority pleads that

detenu has already been released, but the fact of release is found to be

28 Biman Chandra v.governor,AIR 1952 CAL 79929 Cox v. Haikes ,(1819) 15 AC 506

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false and the detenu is not traceable the court may order payment of

compensation.30

ARTICLE 32 AN INSIGHT

This article provides for the remedies for enforcement of rights of the

persons. This article reads as:

32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the

enforcement of the rights conferred by this Part is guaranteed

(2) 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 rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by

clause (1) and ( 2 ), Parliament may by law empower any other court to

exercise within the local limits of its jurisdiction all or any of the powers

exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as

otherwise provided for by this Constitution

Comment: This article describes the last of the fundamental rights. Unlike

other rights, it is remedial in nature and not substantive in nature. But it is in

no way less important than the other rights. Just as the remedy of habeas

corpus is called the bulwark of liberties inn England, and this article has

been called the heart and soul of the constitution. In the words of Dr.Ambedkar:31

If I was asked to name any particular article in this constitution as the most

important-an article without which this constitution would be a nullity-I

30 Postangbam Ningal Thokchom v. General officer commanding AIR 1997 SC 353431 Constituent assembly debates,Vol. VII pg.953

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could not refer to any other article except this one . It is the very soul of the

constitution and the very heart of it.

The right to take proceedings by original petition straight in the supreme

court for the enforcement of fundamental rights is guaranteed in Article 32.

The significance of this right has been assessed by gajendragadkar,J.,later

CJ,thus: 32

The fundamental right to move this court can therefore be appropriately

described as the cornerstone of the democratic edifice raised by the

constitution. That is why it is natural that this court should, in the words of

Patanjali Shastri, J., regards itself as the protector and guarantor of

fundamental rights and should declare that it cannot, consistently with the

responsibility laid upon it ,refuse to entertain applications seeking protection

against the infringement of such rights(vide Romesh Thapar v.State of

Madras)33

32 Prem chand garg v. Excise commr U.P ,AIR 1963 SC 996,99933 1950 SCR 594,597,AIR 1950 sc 124,126

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ARTICLE 226-AN INSIGHT

This article deals with the power of high courts to issue certain writs to

protect the rights of the person. This article reads as:

226. Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have

powers, throughout the territories in relation to which it exercise 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, prohibitions, quo warranto

and certiorari, or any of them, for the enforcement of any of the rights

conferred by Part III and for any other purpose

(2) The power conferred by clause (1) to issue directions, orders or writs to

any Government, authority or person may also be exercised by any HighCourt exercising jurisdiction in relation to the territories within which the

cause of action, wholly or in part, arises for the exercise of such power,

notwithstanding that the seat of such Government or authority or the

residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of

injunction or stay or in any other manner, is made on, or in any proceedings

relating to, a petition under clause ( 1 ), without

(a) Furnishing to such party copies of such petition and all documents in

support of the plea for such interim order; and(b) giving such party an opportunity of being heard, makes an application to

the High Court for the vacation of such order and furnishes a copy of such

application to the party in whose favour such order has been made or the

counsel of such party, the High Court shall dispose of the application within

a period of two weeks from the date on which it is received or from the date

on which the copy of such application is so furnished, whichever is later, or

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where the High Court is closed on the last day of that period, before the

expiry of the next day afterwards on which the High Court is open; and if the

application is not so disposed of, the interim order shall, on the expiry of that

period, or, as the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in

derogation of the power conferred on the Supreme court by clause ( 2 ) of

Article 32

226. A Constitutional validity of Central laws not to be considered in

proceedings under Article 226 Omitted

Comment: Article 226 of the constitution confers a power on all the high

courts of India which they did not enjoy before the commencement of the

constitution. It enables them to issue to any person or authority, including in

appropriate cases any government, orders or writs for enforcement of any of

the rights conferred by part III and for any other purpose. The powerconferred on the high courts under article 226(1) can, in a proper case, be

exercised even against the legislature.

The five writs specifically mentioned in article 226 are known in English

law as prerogative writs, for they had originated in the kings prerogative

power of superintendence over the due observance of law by his officers and

tribunals. The prerogative writs are extraordinary remedies intended to be

applied in exceptional cases in which ordinary legal remedies are not

adequate. Primarily the powers under article 226 have to be exercised

against public bodies and rarely against private persons except in the area of

human rights which is acquiring horizontal application.

The court explained the reasons ,which led the framers of the constitution to

confer power on high court to issue prerogative writs,in the following words:

The makers of the constitution , having decided to provide for certain basic

safeguards for the people in the new set up which they called fundamental

rights,evidently thought it necessary to provide also a quick and inexpensive

remedy for the enforcement of such rights and, finding that the prerogativewrits, which the courts in England have developed and used whenever

urgent necessity demended immediate and decisive inter-position ,were

peculiarly suited for the purpose,they conferred ,in the states sphere,new

and wide powers on the high courts of issuing directions,orders or writs

primarily for the enforcement of fundamental rights ,the power to issue such

direction,etc. For any other purpose being also included with a view

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apparentaly to place all the high courts in the country in somewhat the same

position as the court of kings bench in England34

So,the very purpose of this article seems to safeguard the fundamental rights

of the public in any case.

IMPLIED CONCEPTS IN WRIT JURISDICTION

I. LOCUS STANDI

Locus standi means, whether a petitioner is entitled to invoke the jurisdiction

of the Court. It means the legal capacity of the person concerned to

challenge an act or a decision. Whether the decision is legally valid or not is

irrelevant for considering the question whether the petitioner has the locus

standi to invoke the jurisdiction the Court. Only an aggrieved person or an

interested person can invoke the jurisdiction of the court for redressal ofgrievances. If a petitioner has no locus standi to file the petition before the

Court he cannot be heard on merits. In order to have locus standi to file the

petition to invoke the jurisdiction of the High Court the petitioner should be

an aggrieved person. Generally a person is said to be aggrieved by an order

which is to his detriment pecuniary or otherwise cause him some prejudice

in one form or other. It should be understood that to mean that an aggrieved

person will be a person who has genuine grievance to be submitted before

the Court because of an action which has been made or taken and which

prejudicially affected his interest.

II. Where a legal wrong or a legal injury is caused to a person or to a class of

persons due to the violation of any Constitutional or legal right or any

burden is imposed in contravention of any constitution or provision or

without authority of law or any such legal wrong or legal injury or illegal

burden is threatened and such person or definite class of person is by reason

of poverty, helplessness or disability or economically disadvantaged position

to approach the court for appropriate reliefs, any member of the public can

maintain an application for an appropriate direction or order from the High

Court under Article 226 of the Constitution of India.

III. against Whom Writ may be issued.

34 Election Commission v. Saka Venkata Subba Rao,AIR 1953 SC 210,212

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A writ can be filed only against State and the same is not maintainable

against private individual or corporations. However, a private individual or

corporation can be a party in the writ partition if relief sought in the writ

petition affects his interest.

Who is State: State has been defined under Article 12 of the

Constitution as "the State" includes the Governmental and Parliament of

India and the Government and the Legislature of each of the States and all

local or other authorities within the territory of India or under the control of

the Government of India. However after the decision of the Supreme Court

in Airport Authority case the definition of the state has been widened up and

it includes all authorities which are instrumental to government or

Government has control in the appointment/removal of office

bearer/employees, funding and functions of such authorities. Now the

societies registered under societies Act, Universities, Boards etc. are stateunder Article 12 of Constitution of India.

For deciding the question whether a writ would be issued by the High

Court in a given circumstance first it should be decided whether against

whom a writ can be issued. The general rule is that a writ lies against the

State as defined under Article 12 of the Constitution of India. The

definition of State include (1) the Government and the Parliament of India(2) the Government and Legislature of each State(3) all local or other

authorities within the territory of India and (4) all local or authorities under

the control of Government of India. The expression other authority as

contemplated under Article 12 of the Constitution is wide enough to include

within it every authority which is a creature of a statute or it is functioning

within the territory of India or under the control of India. In R.D Shetty Vs.

International Airport Authority (AIR 1979 SC 1628) the Supreme Court held

that the Airport Authority comes within the ambit of State as defined under

Article 12 of the Constitution of India following the earlier judgement in

Rajasthan Electricity Board case (AIR 1967 SC 1857) and Sukhdeo

decisions of the Supreme Court on the Interpretation of the word other

authorities contained in Article 12 of the Constitution of India, viz 1981 SC

487.

Since Article 226 of the Constitution says that every High Court has got

power to issue writ, order or direction to any person or authority including

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or in whole arises. The Constitution 15th Amendment Act came into force on

05- 10- 1963.

The word cause of action has not been defined either in the Constitution

or in the Code of Civil Procedure. But it should be understood that as a

bundle of essential facts which it is necessary for the litigant to prove before

he can succeed in the litigation. In the decision reported in AIR 1989 SC

1239 it is observed that a cause of action means a very fact which if

traversed it is necessary for the plaintiff to prove in order to support his right

in the judgement of Court. In other words it is a bundle of facts which taken

with the law applicable to them gives the plaintiff a right to relief against the

defendant. Whether any particular facts constituted a cause of action or not

will depend upon the facts and circumstances of each case.

VIII. Purpose for which Writs may be issued by the High Court

The High Court may exercise the power vested in it under Article 226 of

the Constitution of India for two purposes viz., (1) for enforcement of

fundamental rights and (2) for any other purpose. The power of the High

Court under Article 226 are much wider than the power conferred on the

Supreme Court under article 32 of the Constitution of India. The right of a

citizen to move the Supreme Court under Article 32 of the Constitution is for

the issue of writs, directions or orders for the enforcement of the rights

conferred on a citizen under Part III of the Constitution which deals with

fundamental rights. The expression for any other purpose, contained in

Article 226 of the Constitution contemplate the issue of writs, orders and

directions for purposes other than enforcement of fundamental rights. The

correct interpretation of the above words means for the enforcement of any

legal right and the performance of any legal duty.

IX. Disputed question of facts:

The High Courts exercise of its extraordinary jurisdiction vested in it

under Article 226 of the Constitution of India will not make a rowingenquiry into disputed question of fact. Since the proceedings under Article

226 of the Constitution are of a summary nature disputed questions of facts

are not normally allowed to be agitated and High Court would not proceed to

determine such questions.

X. Suppression or concealment of material facts:

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It is a fundamental principle of law that a person invoking the

extraordinary jurisdiction of the High Court under Article 226 of the

Constitution of India must come with clean hands and should make full and

candid disclosure of all material facts and should not suppress deliberately

any material facts and circumstances from the Court. The person who seeks

to invoke the extra-ordinary jurisdiction of the High Court under Article 226

of the Constitution of India should disclose all materials without any

reservation even if those facts are against him. He cannot pick and choose

facts which are in his favour and disclose them and to suppress other facts

which may go against him. Material Facts though not defined under the

Constitution would mean a fact which has some bearing or connection to the

main points in the petition and which is material for granting the relief

claimed.

XI. Delay and Laches:

The power conferred on the High Court under Article 226 of the

Constitution is a discretionary remedy. Nobody can claim the relief under

Article 226 of the Constitution as of a right. It is mandatory that a person

who wants to get his grievances redressed by invoking the extraordinary

jurisdiction of the High Court should come to the Court at the earliest

possible opportunity. The inordinate delay in approaching the High Court

with a grievance will entail the refusal of the extra ordinary jurisdiction in

favour of a person. There is no period of limitation prescribed under Indian

Limitation Act for filing a writ petition in the High Court for redressal of

grievance. The measure of delay is left to the judicial discretion of the court.

There is no hard and fast rule as to when the High Court should refuse to

exercise its jurisdiction in favour of a party who moves the Court after

considerable delay. If there is willful negligence and laches and there is

unexplained delay and the matter has become stale the Court will refuse to

exercise its extraordinary jurisdiction.

XII.RES JUDICATA- The general principles of res judicata apply even towrit petitions filed under Article 226 of the Constitution of India. Once the

petition filed under Article 226 of the Constitution is dismissed by the Court,

a subsequent petition is barred. Similarly if a writ petition filed by a party

under Article 226 is considered on merits as a contested matter and is

dismissed, the decision thus pronounced would continue to bind the parties

unless it is otherwise modified or reversed in appeal or in other appropriate

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XV. Alternative remedy:

Since the power conferred on the High Court under Article 226 of the

Constitution to issue writs, orders and directions is a discretionary remedy

and since the High Court has always the discretion to refuse to grant such a

relief in certain circumstances, availability of an alternative remedy is one of

such considerations which the High Court will take into account to refuse to

exercise its jurisdiction. If the alternative statutory remedy is equally

efficacious and effective, the High Court may not invoke and would relegate

the party to pursue his alternative remedy. If the person aggrieved has a right

to file an appeal or revision against an order impugned under the provisionsof any statute the High Court will decline its jurisdiction under Article 226

of the Constitution of India. If the person can obtain other adequate and

proper reliefs by filing a civil suit the High Court may refuse to entertain a

Writ Petition.

XVI. Parties to petition:

Persons who will be adversely affected by an order of the Court in a Writ

Petition should be made parties to the petition. There is a distinction

between a necessary party and a proper party. A necessary party is one

whose presence is indispensable to the Constitution of the Writ, against

whom the relief is sought and without whom no order can be passed. A

proper party is one in whose absence an effective order can be passed but

whose presence is necessary for a complete and final decision on the

questions involved in the proceeding. The High Court will not hear and grant

relief to a petitioner who has failed to implead the necessary parties in a writ

petition. The Court can also suo motto direct the petitioner to implead any

person as a party to the petition in order to adjudicate the points involved in

the writ petition effectively and completely. The general principle is that allpersons who are likely to be affected by the issue of a writ have been made

parties to the writ petition.

XVII. Pleadings:

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The whole object of pleadings is to bring the parties to definite issues and

to avoid delay and to prevent surprise at the hearing. A party is entitled to

know the case of the opponent so that he can meet it. In other words the sole

object of pleadings is to ascertain the real disputes between the parties. A

petition under Article 226 of the Constitution must be concise and to the

point. For example, when malafides is alleged the pleadings should be

specific and should give all the details of the malafides alleged and the

person against whom the malafide is alleged should be added as a party to

the petition. If the names and addresses of those persons who will be

affected by the issue of a writ is not known to the petitioner and their

number is numerous, the petitioner can implead one person in a

representative capacity by the leave of the court and seek publication of the

leave of the court and seek publication of the notice in a daily newspaper.

XVIII. Relevant Documents should accompany the Writ Petition.

The true copies of all the impugned orders sought to be challenged should

be produced along with the writ petition. The true copies of the documents

relied on by the petitioner in support of his case also should be produced

along with the writ petition. When the copy of the impugned order is not

produced in the writ petition the same is liable to be dismissed on that sole

ground.

XIX. Limitation

The provisions of the Indian Limitation Act are not applicable to writ

proceedings. But it is well settled that a person who is approaching the High

Court invoking its extra ordinary jurisdiction under Article 226 of the

Constitution is expected to approach the court as expeditiously as possible.

Inordinate delay and laches in approaching the High Court will entail the

dismissal of the writ petition by the High Court.

XX. Applicability of C.P.C.:

In view of the explanation added to Section 141 of the Code of Civil

Procedure by the C.P.C. Amendment Act 1976 the proceeding under Article

226 of the Constitution of India are excluded from the procedure rules laid

down in the C.P.C. in regard to suits. But however our High Court has held

that even though Order 47 Rule (1) of the C.P.C. may not apply to writ

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proceedings, the High Court has inherent power to review its own orders

under Article 226 of the Constitution of India.

CONCLUSION

Uncontrolled discretion by administrative authority may lead to illegal

interference with the rights of citizens. However, discretion is not open to

objection, when the circumstances and the grounds are stated or the decision

lays down a policy of discretion or if there are adequate procedural safe

guards against possible abuse of discretion. Uncontrolled and unguided

discretion is liable to be struck down as infringing Article 19 or Article 14 of

the Constitution of India. Power of Judicial Review is conferred on the HighCourts under Article 226 of the Constitution of India and on the Supreme

Court under Article 32 of the Constitution of India. Article 226 empowers

the High Court to issue directions, orders or writs, in the nature of habeas

corpus, mandamus, prohibition, quo warranto, certiorari or any of them in

enforcement of fundamental right or other statutory rights.

The High Court may exercise the power vested in it under Article 226 of the

Constitution of India for two purposes viz., (1) for enforcement of

fundamental rights and (2) for any other purpose. The power of the HighCourt under Article 226 are much wider than the power conferred on the

Supreme Court under article 32 of the Constitution of India. The right of a

citizen to move the Supreme Court under Article 32 of the Constitution is for

the issue of writs, directions or orders for the enforcement of the rights

conferred on a citizen under Part III of the Constitution which deals with

fundamental rights. The expression for any other purpose, contained in

Article 226 of the Constitution contemplate the issue of writs, orders and

directions for purposes other than enforcement of fundamental rights. The

correct interpretation of the above words means for the enforcement of any

legal right and the performance of any legal duty.

The five writs specifically mentioned in article 226 are known in English

law as prerogative writs, for they had originated in the kings prerogative

power of superintendence over the due observance of law by his officers and

tribunals. The prerogative writs are extraordinary remedies intended to be

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applied in exceptional cases in which ordinary legal remedies are not

adequate.

Although the prerogative writs have been borrowed from English law,in

view of the expressed provisions in the constitution we need not now look

back to early history. What is necessary is to keep the broad and the

fundamental principles that regulate the exercise of jurisdiction. These writ

provisions are of immense importance in view of the public law remedy and

safeguarding the fundamental rights of the citizens.

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CHANAKYA NATIONAL LAW UNIVERSITY,PATNA

WRIT JURISDICTION

Submitted to: Mr. Puspendra Pandey(Faculty for Legal theory)

Submitted by:Girijapati Kaushal

ROLL NO. 331

1st Semester

CNLU,Patna

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RESEARCH METHODOLOGYAims and Objectives:

The aim of the project is to present a detailed study of writ jurisdiction through

decisions, statutes, amendments, suggestions and different writings and articles.

Scope and Limitations:

Though this is an immense project and pages can be written over the topic but because of

certain restrictions and limitations I was not able to deal with the topic in great detail.

Sources of Data:

The following secondary sources of data have been used in the project-

1. Articles

2. Books

3. Websites

Method of Writing:

The method of writing followed in the course of this research paper is primarily

analytical.

Mode of Citation:The researcher has followed a uniform mode of citation throughout

the course of this research paper.