THIS ARTICLE IS WRITTEN BY KARTIKA SEHGAL PURSUING BA.LLB CURRENTLY IN 3rd YEAR FROM THE LAW SCHOOL, UNIVERSITY OF JAMMU during his internship with Le Droit India.
Introduction
Writ petitions are of great significance in the Indian legal system since they provide a facility for the enforcement of constitutional guarantees, protect the fundamental rights of an individual, and maintain the rule of law. The writ jurisdiction of Indian Courts permits individuals to directly approach the higher courts to avail remedies against violation of constitutional rights or issues pertaining to unlawful exercise of power by public authorities. While the concept of writs in India has emanated from English common law, it finds a place in the constitutional framework and has come up as strong weapons for judicial review and redressal of grievances.
The present article proposes to discuss the historical genesis, types, reach, and significance of writ petitions in India, relating to their role in the protection of fundamental rights and their impact on public administration and governance. It looks into landmark judgments, legal procedures, and the interaction between the judiciary and executive while drawing special attention to constitutional provisions empowering every citizen to question arbitrary or illegal actions of authorities.
1. Historical Background and Constitutional Provisions
- Evolution of Writs in English Common Law
The concept of writs could be traced to English common law wherein formal written orders were given by the English monarch or courts instructing any public authority to act or not to act upon an activity in question. Writs were important instruments in delivering justice and resolving disputes; thus, these tools took time to formalize within the English judicial system. These writs included habeas corpus for challenging illegal detention, mandamus to force a public authority to carry out a duty, certiorari to review the legality of lower court decisions, prohibition to prevent a lower court from acting ultra vires, and quo warranto to challenge the right of a person occupying a public office.1
Wrongs remedy The Indian legal system, with its roots in common law, embodied the principle of writs as the enforcing factor for individual rights and self-discipline of public administration. In this backdrop, the Indian Constitution explicitly established writ jurisdiction after the advent of independence to enable the public to approach the higher courts directly for cure of their fundamental rights and all other legally bestowed rights.
1 https://www.jstor.org/stable/789568
2. Types of Writs in India2
The Constitution provides for five types of writs that can be issued by the Supreme Court and High Courts to address violations of rights or unlawful actions by public authorities. These writs are based on their counterparts in English common law but have been adapted to the Indian context.
2.1 Habeas Corpus
The term habeas corpus actually translates to “you shall have the body. “It is a writ used in setting free a person that was confined or put in prison, contrary to the law. The writ of habeas corpus performs one cardinal function: in order to defend human freedom against arbitrary confinement of a person. Therefore, the writ of habeas corpus instructs the detaining authority to produce the detained person before the court and to provide the quizzes as to why a person has been so detained. On this, if in the opinion of the court the detention is illegal or without sufficient cause it releases the condemned immediately.
Habeas corpus has peculiar importance in cases of illegal detention, wrongful arrests, or custodial violations and, as such, serves as an imperative check on arbitrary exercise of power by the state.
2 https://www.legalserviceindia.com/legal/article-9960-5-types-of-writs-in-indian- constitution.html#:~:text=There%20are%20five%20types%20of,to%20perform%20under%20the%20law.
Landmark Case: ADM Jabalpur v. Shivkant Shukla (1976)3
Habeas corpus was also suspended in this regard in this particular case during the period of emergency in India and the power to detain citizens was established and no judicial review could be made by the Supreme Court of India. Since then, this judgment has been widely criticized for undermining individual liberties. However, over the years, the court recognized the inters fundamental role of habeas corpus in saving individual liberty against state excesses.
2.2 Mandamus
Mandamus comes from a latin word meaning “we command.” It is a writ from a court to any public authority, including any government officer, to do some work that, according to the law, the officer ought to perform but has refused or neglected to perform. Mandamus ensures that public officers remain within the bounds of their statutory duties and powers.
An order of mandamus normally issues when a government body, public corporation, or lower court has omitted to carry out some act required by law, which has resulted in a denial of some individual or group of individuals their rights.
Landmark Case: The State of West Bengal v. Nuruddin (1998)4
In the particular case, the Supreme Court of India passed a writ of mandamus against the State Government to pay compensation to the victims of police atrocities. The court held that the State was under a duty to protect the citizens’ rights and failure to do so justified judicial intervention by mandamus.
2.3 Prohibition
A writ of prohibition is the direction given by a higher court to a lower court or tribunal not to proceed with the proceedings of the case as the same are outside the jurisdictions or authority of the lower court or tribunal. The purpose of the writ of prohibition is to prevent the subordinate
3 ADM Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521, AIR 1976 SC 1207 https://indiankanoon.org/doc/1735815/
4 The State of West Bengal v. Nuruddin, (1998) 8 SCC 143. https://indiankanoon.org/doc/90532573/
courts or quasi-judicial authorities from assuming proceedings which are ultra-vires the law or contrary to natural justice.
Prohibition is, in the main, preventive, as it issues before the proceedings in question are brought to a close. It ensures the judicial process does not exceed the boundaries set by the prescribed jurisdiction thereof and also that there be no unjust or unlawful outcome.
Landmark Case: East India Commercial Co. Ltd. v. Collector of Customs (1962)5
In this case, a writ of prohibition was issued by the Supreme Court of India to the Collector of Customs to prevent him from exceeding his jurisdiction in adjudicating upon the matters pertaining to importation of goods. The court held that for acts done beyond the powers of authority, the writ of prohibition is an appropriate remedy to restrain authorities from acting beyond their rule of law.
2.4 Certiorari
Certiorari is an order by a superior court to call records of a lower court, tribunal, or quasi-judicial authority for the purpose of reviewing and quashing its decision when such a decision has been made in excess of jurisdiction, or there is a failure of or excess of jurisdiction, or it has failed to act in accordance with principles of procedural fairness, or if for any reason the decision leads to miscarriage of justice. While prohibition, being preventive, prohibits a lower court from taking up or proceeding with an action, certiorari is corrective, seeking to annul the action already completed.
Application of writ of certiorari would prove as a very useful arm in ensuring judicial accountability, that there is no abuse of powers by lower courts or for that matter any quasi-judicial body, and that ends of natural justice are not defeated in any case.
Landmark Case: T.C. Basappa v. T. Nagappa (1954)6
In this case, the Supreme Court of India explained to what extent a writ of certiorari would run and passed that it could be granted to correct errors of jurisdiction or law committed by subordinate courts. The court abused the process of certiorari to ensure that the rule of fair play in the judicial process is not abused.
2.5 Quo Warranto
5 East India Commercial Co. Ltd. v. Collector of Customs, AIR 1962 SC 1893, (1963) 3 SCR 338. https://indiankanoon.org/doc/1839963/
6 T.C. Basappa v. T. Nagappa, AIR 1954 SC 440, 1955 SCR 250. https://indiankanoon.org/doc/1959866/
Quo warranto comes from a Latin term which when translated means ‘by what right or authority’. It is a special writ which can be issued by a court in its attempt to challenge the legitimacy of the holder to a certain office. The writ thereby makes sure that a person holding a public office has legal authority to hold that office and that he is legally qualified for holding that office. Quo warranto is especially handy whenever an appointment to a public post is contested on the premise of illegality, ineligibility, or corrupt practice.
Quo warranto is a remedy that ensures no person holds any public office to which he is not entitled or qualified. It ensures that public appointments are openly and transparently done.
Landmark Case: University of Mysore v. Govinda Rao (1964)7
Herein, the Supreme Court of India upheld the issuance of a writ of quo warranto against a person who had been appointed as a professor despite the statutory qualifications laid down for holding the post. Quo warranto, as held by the court, ensures that public offices are not allowed to be occupied by persons who do not possess the legal and formal authority to occupy them.
3. Procedure for Filing Writ Petitions
The procedure for filing writ petitions in India varies slightly between the Supreme Court and High Courts, but the general process involves the following steps:
3.1 Filing in the Supreme Court under Article 32
- Who can file: Under Article 32, any person whose fundamental rights have been violated can file a writ petition. Public interest litigations can also be filed by individuals or organizations on behalf of other persons whose rights have been violated.
- Jurisdiction: The Supreme Court has original jurisdiction in all matters related with enforcement of Fundamental RIghts.
-Quantum and Content: The writ petition shall be filed in the prescribed form, containing details of infringement of fundamental rights, relevant facts, legal grounds, and the relief sought.
-Affidavit: The petition shall be supported by an affidavit stating that the facts stated in the petition are correct.
- Hearing and Decision: A notice shall be issued to the respondents on the petition filed before the Supreme Court, and thereafter, after hearing the parties, an appropriate writ may be issued or the petition may be dismissed if no violation of fundamental rights is found.
7 University of Mysore v. C.D. Govinda Rao, AIR 1965 SC 491, (1964) 4 SCR 575. https://indiankanoon.org/doc/295084/
3.2 Filing in High Courts under Article 226
-Who can file: Under Article 226, any person whose fundamental rights or other legal rights have been infringed can file a writ petition. High Courts also entertain PILs in matters of public interest.
-Jurisdiction High Courts have wider writ jurisdiction than the Supreme Court because High Courts are empowered to issue writs for the enforcement of both fundamental and non- fundamental rights. High Courts can also issue writs against private bodies when performing public functions.
- Format and Content: The same procedure as in the Supreme Court, the writ petition shall be filed in the prescribed format, stating the infringement of fundamental rights, legal grounds, and what relief is sought.
- Affidavit: The petition shall be supported by an affidavit, which will state the correctness of the facts.
- Hearing and decision: The High Court after considering facts and arguments may issue appropriate writ in case of violation of rights or reject the petition if it sees no violation of rights.
4. Scope of Judicial Review through Writ Petitions
In Indian jurisprudence, these writ petitions are considered a strong tool for judicial review. These grant the courts extensive powers to oversee both the executive and the legislature, ensuring that both comply with constitutional precepts. By exercising writ jurisdiction, courts have been able to strike down unconstitutional laws; they can set aside arbitrary administrative orders and thus preserve the liberties of citizens.
Judicial review by way of writs played an important role in shaping Indian constitutional law and was instrumental in developing various legal doctrines such as the basic structure doctrine, judicial activism, and public interest litigation.
5. Significance and Impact of Writ Petitions
- Protection of Fundamental Rights
Writ petitions are the fastest and most effective way in which aggrieved persons seek redress against infringement upon their fundamental rights. If Article 32 guarantees citizens an enforceable right of approach to the Supreme Court, Article 226 extends the same protection in regard to legal rights through the High Courts. The issuance of writs serves to check or undo the overreach committed by governmental machinery to ensure that the constitutional promises to the people are not reneged upon.
5.2 Accountability and Good Governance
Writs such as mandamus and certiorari work to ensure that public authorities do not act outside their authority or in a manner opposed to the rule of law. This helps ensure accountability and transparency in governance, with the required performance and discharge by public functionaries of their duties as provided under the law and the Constitution. In effect, writ petitions would also successfully restrain arbitrary exercise of authority, corruption, and mismanagement, adding to better public governance.
5.3 Public Interest Litigation (PIL)
The growth of PILs has greatly widened the scope of writ petitions in India. PILs empower individuals or organizations to file writ petitions on behalf of the underprivileged sections of society who are not in a position to approach the courts themselves. PILs have empowered the judiciary to address a bevy of social, environmental, and economic issues, relating to protection of the environment, rights of prisoners, women, and children, amongst others.
8. Conclusion
Writ petitions are, in fact, the cornerstone of the constitutional framework in India and will fundamentally assist an individual in an effort to protect his or her rights and search for justice. By placing this power in the judiciary-to issue writs-the framers of the Constitution had ensured that the rule of law ultimately prevails and no person is above the law, not even the state.
Writ jurisdiction has played an immensely important role in the maintenance of purity of fundamental rights, assuring good governance, and keeping the public administration accountable before the Supreme Court and High Courts. Setbacks notwithstanding, the writ petitions remain a necessary tool for enforcing ideals underlying the concepts of justice, equality, and freedom in the Constitution of India.
With the Indian legal system constantly evolving, writ petitions will doubtless remain central in the working of a democratic society by providing an approachable and efficacious way for citizens to challenge illegal acts and protect their rights under the Constitution.
