Writ jurisdiction of Supreme Court and High Court

 

In this article we have made comprehensive study on Writ jurisdiction of Supreme Court and High Court

 

Introduction:

 

Unlike other rights it is remedial 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 liberties in England, the Article has been called the heart and soul of the Constitution.

 

Dr. Ambedkar:

 

If I was asked to name any particular article in this Constitution as the most important – an article away by an Act of the legislature unless the Constitution itself is amended. For this reason, the Supreme Court struck down the rule of the Court which required the petitioner to furnish security as a condition precedent to the hearing of the petition, since it would impose a financial obligation on the petitioner and if he is not able to comply with it, his petition would fail.

 

Clause (2) empowers the Supreme Court to issue directions or orders or writs, including the 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 Part III of the Constitution. The five writs specifically mentioned in clause (2) are known as the prerogative writs in the English law.

 

They are specifically directed to persons or authorities against whom redress was sought and were returnable in the Court issuing them and, in case of disobedience, were enforceable by attachment for contempt. The language of clause (2) is wide and does not confine the power of the Court to issuing of prerogative writs only; nor does it compel the Court to observe all procedural technicalities which had gathered round the prerogative writs in English laws.

 

Comparison with English Position:

 

The power of granting writs is not confined to the five writs specified in that clause nor need the power be exercised in the manner it is exercised in England because firstly the power is given in inclusive terms and secondly, it is given to issue writs ‘in the nature’ of those specified but not exactly the same. Therefore, even if the conditions for issue of any of the five prerogative writs are not fulfilled, the Supreme Court may still issue a writ in an appropriate case.

 

Moreover, the power of the Supreme Court in clause (2) is not confined only to the issuance of writs It extends to issuing of any directions or orders that may be appropriate for the enforcement of the fundamental rights. The power of the Court is not only injunctive in ambit, that is, preventing the infringement of a fundamental, but it is also remedial in scope and provides relief against a breach of a fundamental right already committed. In the exercise of that wide power, the Court has directed the State to pay compensation and exemplary costs for the violation of fundamental rights.

 

Appropriate directions may also be given where a fundamental right such as the one under Articles 17, 23 and 24 available against the private persons, is violated.

 

Provision for Compensation:

 

In respect of award of compensation, the Court has clarified that Article 32 is a public law remedy and the limitation of sovereign immunity in Article 300 in respect of private law remedies, is inapplicable to it Such compensation may, however, be awarded only to the victim of violation of the fundamental rights. i.e., the person whose fundamental rights have been violated. It cannot be ordered by the Court as an exemplary punishment to an official or authority without a claim of loss arising from the violation of fundamental rights of the petitioner by the act of such official or authority. Article 32 provides a remedy against the violation of fundamental rights and not a general remedy against all illegalities of the administration.

 

Though the compensation is awarded to the victim of the violation of fundamental rights, in case the victim is a lunatic and has no known relatives, the court may also direct the State to make a donation to a non-governmental protective home which will take care of the victim.

 

Sometimes Article 32 has also been invoked in matters of great public concern even though no violation of any fundamental right was alleged.

 

Again, clause (2) does not lay down the procedure which the Court has to follow in the enforcement of fundamental rights and granting appropriate relief. It does not mean that the Court can ignore all canons judicial procedure and propriety, but certainly it can devise appropriate procedures within the broad judicial parameters to suit the enforcement of a fundamental right. The Court is not bound by the adversary procedure envisaged in the Civil Procedure Code and the Evidence Act and can devise inquisitorial or other suitable procedure to achieve the objective and purpose of Article 32. In sum, the Court has said that Article 32 does not merely confer power on it but also lays a constitutional obligation to protect the fundamental rights of the people and for that purpose the Court has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights. The remedy may be both imposed, negotiated or quasi-negotiated. The procedure, being merely a hand-maiden of justice, should not stand in the way of access to justice.

 

Further, the Court has held that its power under Article 32 is plenary power which it can use even for correcting its own mistakes. The power can also be used for entrusting functions on other bodies such as the National Human Rights Commission. An order of the Court which directs the National Human Rights Commission to conduct certain investigations, which it could not conduct under the Protection of Human Rights Act, is therefore valid.

 

But it cannot direct the legislature and delegated authority to make any particular law. It can also not ask the government to take any policy decision. Nor can the right to vote or contest election, which is a statutory and not a fundamental right, be enforced under this article.

 

Territorial Limitation or extent:

 

The power of the Court under Article 32, are not circumscribed by any territorial limitation. It extends not merely over every authority within the territory of India but also those functioning outside, provided such authorities are under the control of the Government of India. But the power under Article 32 must be read in conjunction with Article 142 of the Constitution, Article 142 brings in the limitation as regards the territory in which the order or direction of the Court would be enforced.

 

An order made by a quasi-judicial authority with jurisdiction under an Act which is intra vires is not liable to the questioned on the sole ground that the provisions of the Act or the terms of the notification issued there under have been misconstrued.

 

Necessity to go to High Court before going to Supreme Court:

 

Although both the Supreme Court and the High Courts possess concurrent power to issue orders and writs in the matter of enforcement of fundamental rights, it is no condition for the exercise of the jurisdiction by the Supreme Court that the petitioner must, in the first instance, approach the High Court. In Ramesh Thapar V. State of Madras AIR 1950 SC 124, the petitioner had come directly to the Supreme Court for the enforcement of the fundamental rights. The Attorney General contended that as a matter of orderly procedure he should first resort to the High Court which, under Article 226, exercises a concurrent jurisdiction to deal with the matter; Rejecting the contention the Supreme Court said that unlike Article 226 which confers power or the High Court Article 32 confers a fundamental right on the individual and an obligation on the Supreme Court which obligation it must discharge when an individual complains of infringement of his fundamental right.

 

In view of the enormous arrears before it, the Supreme Court, however discourage petitions under Article 32 if equally effective remedy can be availed of before the High Court.

 

Res Judicata –

 

Petition to the Supreme Court under Article 82 are subject to the rule of res Judicata. Therefore, if a question has been decided by the Supreme Court under Article 32 between two parties, the same question cannot be reopened between the same parties under that article. The same will be the position where the matter has been heard and decided by the High Court under Article 226 and a fresh petition is filed under Article 32. In Daryao Vs. State of U.P. AIR 1961 SC 1457.the respondents objected against the maintainability of six writ petitions under Article 32 on the ground that in each one of them the petitioners had moved the High Court for similar writs on the same facts and the High Court had rejected them. The Supreme Court held that the writs were barred by the rule of res Judicata and could not be entertained. It further laid down:

 

(a) If a petition under Article 226 is considered on merits as a contested matter and is dismissed, the decision would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution.

 

(b) It would not be open to a party to ignore the said judgment and move the Supreme Court under Article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs.

 

(c) If the petition under Article 226 in a High Court is dismissed not on merits but because of the laches of the party applying for the writ or because it is held that the party had an alternative remedy available to it, the dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32.

 

(d) Such a dismissal may, however, constitute a bar to subsequent application under Article 32 where and if the facts thus found by the High Court be themselves relevant even under Article 32.

 

(e) If a writ petition is dismissed in limine and order is pronounced in that behalf, whether or not the dismissal would constitute a bar would depend on the nature of the order. If the order is on the merits, it would be a bar.

 

(f) If the petition is dismissed in limine without a speaking order, such dismissal cannot be treated as creating a bar of res Judicata.

 

 

Doctrine of res Judicata under Article 32 also applies against matters decided under Article 136.

 

Exception –

 

The writ of habeas corpus is an exception to the rule of res judicata. In other words, res judicata is not applicable in the writ of habeas corpus. Accordingly, where a writ of habeas corpus has been refused by the High Court the petitioner may file an independent petition for the same writ under Article 32 of the Constitution. Not only that, repeated petitions can be filed under Article 32 itself. The rule of constructive res judicata also does not apply in such case.

 

Laches: In Tilokchand Motichand Vs. H.B. Munshi AIR 1970 SC 898, the Supreme Court was confronted with two important questions; (i) can any time-limit be imposed on filing of petitions under Article 32 and (ii) whether the limitation Act applies by analogy appropriate to the facts of a case.

 

In 1968 the petitioner filed a writ petition in the Supreme Court seeking the order, making demands on him for the payment of tax, to be quashed, as it was issued under an unconstitutional statute. The petition was opposed on the ground of delay in approaching the Supreme Court. It was also not a petition or an application to which the Limitation Act applied. However, the party aggrieved must move to the Court at the earliest possible time and explain satisfactorily al semblance of delay. No period can be indicated for bringing the action. The question is one of discretion for the court in each case. There is no lower or upper limit.

 

Subsequently the doctrine of laches has been applied by the Court in dismissing petitions on grounds of unreasonable delay. Question of delay in invoking the jurisdiction of the Court should be considered along with the inaction on the part of authorities in performing their statutory duties.

 

The issue of Locus Standi, traditionally à petition could be filed by a person who has suffered infraction of his rights that is ‘an aggrieved person’. Exception is made in case of a petition for habeas corpus where a relative or friend could file à petition on behalf of the person in detention.

 

The emergence of pro bono publico litigation, that is litigation at the instance of a public-spirited person espousing cause of other, known as public interest litigation or social action litigation, has relaxed the traditional rule considerably.

 

Justice Bhagwati, in S.P. Gupta Vs. Union of India, AIR 1982 SC 149, allowing among others, petitions of lawyers against a circular of the ministry of Law and Justice on ground of violation of or threat to the independence of the Judiciary, held

“Any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the Constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision.”

 

Such extended approach on the question of focus standi, Justice Bhagwati, observed “is absolutely essential for maintaining the rule of law, furthering the cause of justice and accelerating the pace of realisation of the constitutional objective.” One of the several propositions laid down in support of this extended approach was repeated in Bandhua Mukti Morcha Vs. Union of India AIR 1984 SC 802.

 

In criminal matters, as far as possible, the Court should be approached only by the accused. More so when the accused is capable of approaching the Court. If the accused or convict is under no disability and yet does not approach the Court, any other person cannot do so on his behalf. The disability in his context means a disability recognized by law. A mere obsession based on religious belief or personal philosophy cannot be treated as legal disability. The Court has also cautioned that “those who invoke this Court's jurisdiction seeking a waiver of the lacus standi rule must exercise restraint in moving the Court by not plunging in areas where in they are not well-versed.” The petitioner in a public interest litigation, it may be noted, cannot withdraw the petition at his sweet will even if he has been appearing before the Court in person. Nor can we impose any conditions for its appearance in the proceedings.

 

Writ against Courts - An adjudication order passed by a High Court cannot be attacked in a proceeding under Article 32 on the ground that the order violates the fundamental rights of a citizen under Article 19 of the Constitution. In Naresh Shridhar Mirajkar Vs. State of Maharashtra AIR 1967 SC1, the question that came up for consideration before the Supreme Court was whether a judicial order passed by the Bombay High Court prohibiting the publication of the evidence of a witness in newspapers violated the fundamental rights under Article 19(1)(a) of the petitioners press who were strangers to the proceedings. The Supreme Court held that no writ under Article 32 of the Constitution could be issued. Whether the conclusion of law drawn by a judge of the High Court suffer from any infirmity can be concluded, considered, and decided only in an appeal before the appellate court. Judicial order by themselves do not violate fundamental rights. This applies as much, if not more, to the Supreme Court.

 

Writ Jurisdiction (High Court)

 

The writ jurisdiction conferred by Article 226(1) on the High Courts is wider, for a High Court may issue writs not only for the enforcement of fundamental rights (Article 32 confines it to fundamental rights only) but also for any other purpose. The power of the High Court under Article 226 are wider than those of the Courts of King's Bench in the United Kingdom for the high Court under Article 226 can issue a writ not only against State, statutory authority, but against any person or body performing a public duty.

 

Although the writs have been borrowed from English Law, but the technicalities of the English Law for the issuance of the writs are not required to be observed in India, because of the express provisions regulating these writs.

The High Courts can also issue directions, orders or writs other than the prerogative writs. It follows that the Courts may mould the relief to meet the peculiar and complicated requirements of our country. The founding fathers placed no limitation or fetters on the power of the High Court under Article 226 except self-imposed limitations. The power of Judicial review vested under Article 226 has been held to be an integral and essential feature of the Constitution, constituting part of its basic structure.

 

Territorial Extent of Writ Jurisdiction

 

In Election Commission Vs. Saka Venkata Subba Rao AIR 1953 SC 210, the Supreme Court held that the High Court of Madras had no power to issue a writ to the Election Commission, having its permanent office in New Delhi. This involved considerable hardship to litigants from distant place.

 

This hardship was remedied by for the Constitution (fifteenth Amendment) Act, 1963 which added Clause (2) to Article – 226 of the Constitution. Clause (2) says that the High Court “may issue writs to any government or authority, notwithstanding that the authority or the government is located outside its territorial limits, if the cause of action, wholly or in part, has arisen within the territory, in relation to which the High Court exercises jurisdiction,” Under Article, 226 read with Article 227, the High Courts exercise judicial superintendence over the decisions of all Courts and Tribunals within their respective jurisdiction.

 

Relief Against an Interim Order-Interim Relief [Article 226(3)]

 

Clause (3) was added to Article 226 by the Constitution (44th Amendment) Act 1978, with a view to regulate the procedure regarding the power of the High Court to issue interim order.

 

Clause (3) provides that where an interim order is passed against a party ex-parte without-

(a) furnishing him copies of such petition, and

(b) giving him an opportunity of being heard,

and if that party makes an application to the High Court for the vacation of such interim order, the High Court shall dispose of the application within two weeks. If the application is not so disposed of within the said period of two weeks, the interim order, on the expiry of that period, shall stand automatically vacated.

 

The High Court may issue interlocutory order under Article 226. However, these should be issued with circumspection having regard to larger public interest and that these should not be issued on more asking by parties.

 

Article 226 cannot be invoked to enforce contractual obligations. But, if facts pleaded do not involve complicated questions of fact for investigation, writ would lie.

 

Rule of Locus Standi

 

According to the traditional rule, a person whose constitutional or legal right is infringed, can invoke the jurisdiction of the High Court under Artible 226. However, this rule is liberalized considerably and courts now permit the public-spirited person, to file a writ petition, for the enforcement of the rights of other person or a class, if that person of class is unable to invoke the jurisdiction of the Court, due to poverty or any social and economic disability.

 

In A.B.S.K. Sangh (Rly) Vs. Union of India, AIR 1981 SC 298, it has been held that access to justice through “class actions”, “public interest litigation” or “representative proceedings” is the present constitutional jurisprudence. Any member of the public having “sufficient interest” can approach the Court for enforcing the constitutional or legal rights of those who cannot go to the Court because of their disabilities. However, the Court will have to decide, from case to case, as to whether the person approaching the Court for relief has “sufficient interest”

 

In State of West Bengal Vs. Ashutosh Lahiri, AIR 1995 SC 464, the petitioners representing a section of Hindu Community were held to have locus standi to file a writ petition under Article 226 for protecting religious Sentiments of the Community.

 

Writs - A Discretionary Remedy

 

Article 226 grants an extraordinary remedy which is essentially discretionary, although founded on legal injury. This remedy, therefore, cannot be claimed as a matter of right. It will be exercised only in furtherance of interests of justice and not merely on the making out of a legal point. The Court has to weigh the public interest vis-à-vis the private interest while exercising the power under Article 226. The Court may refuse to grant any remedy if the petitioner seeks to invoke its writ jurisdiction in order to secure a dishonest advantage to perpetuate an unjust gain. The High Court, in the exercise of their discretion, must be guided by well-recognised principles of law and must satisfy itself that normal statutory remedy is likely to be too dilatory or difficult to give reasonably quick relief.

 

Principles for the Exercise of Writ Jurisdiction

 

The following are some of the principles regulating the exercise of jurisdiction under Article 226.

 

(a) Alternative Remedy: As stated earlier, the remedy provided for in Article 226 is a discretionary remedy. The Court ordinarily refuse to grant any writ where an alternative remedy, equally efficient and adequate, exists, unless there is an exceptional reason for dealing with the matter under the writ jurisdiction. It has, however, been held that the rule that when there is an alternative remedy, the High Court will not interfere under Article 226, is only a rule of policy, convenience and discretion rather than a rule of law.

 

(b) Laches or Delay: It is now well settled that any laches or inordinate delay on the part of a person may disentitle him to move the High Courts under Article 226. The maxim of equity is vigilantibus non dormientibus jura subveniunt, i.e, Equity aid the vigilant and not the indolent.

 

There is no fixed period of limitation nor do the provisions of the Limitation Act apply to a petition under Article 226. But inordinate delay in invoking the jurisdiction of the High Court may be a good ground for refusing to grant relief.

 

For example, in Rabindra Nath Vs. Union of India, AIR 1970 SC 170, a writ petition filed to challenge the seniority rules, made 15 years earlier, was rejected because of laches.

 

However, the rule that the Court may not inquire into a belated or stale claims is not a rule of law but a rule of practice based on sound and proper exercise of discretion. Again, if the delay can satisfactorily and properly be explained, the Court would not refuse to grant relief to petitioner. If the wrong complained of is a continuing wrong, delay in invoking the writ jurisdiction may not be a ground for refusal to grant relief.

 

(c) Res Judicata: The rule of res judicata explains that there should be finality to binding decisions of courts of competent jurisdiction. That parties to the litigation should not be vexed with the same litigation again. It has been held that the general rule of res judicata applies to writ petitions filed under Article 226. Where a petition under Article 226 is dismissed on its merits it operates as res judicata and bar a fresh petition under Article 226, even where it is passed without hearing the other party.

 

WRITS

 

HABEAS CORPUS

 

Habeas Corpus literally means “you may have the body”. The writ is issued in the form of an order issued by the High Court calling upon a person, by whom another person is detained, to bring the detenu before the Court and to let the Court know by what authority he has detained that person.

 

The object of the writ is to give a quick and immediate remedy to a person for his release from an unlawful detention.

 

In Kanu Sanyal Vs. District Magistrate, Dargeeling AIR 1973 SC 2684, the Court held that in writ of habeas corpus under Article 32 the production of the body of the detenue before the Court was not necessary for hearing and disposing of the writ-petition by the Court.

 

The general rule is that an application for the writ of habeas corpus can be made by a person who is illegally detained. However, a friend of a relative or an advocate of the detenu may also file an application for habeas corpus.

 

The Court does not insist on strict rules of pleading to be followed nor places under emphasis as to the question as to on whom the burden of proof lies. In Sunil Batra Vs. Delhi Administration AIR 1980 SC 1679, a post card written by the detenue from jail was converted into a writ petition for habeas corpus. Again, the burden of proof to justify detention has always been placed on the detaining authority.

The writ of habeas corpus would lie if the detention is found to be unlawful or illegal. It would lie if the power of detention vested in the authority has been exercised mala fide or for a collateral or ulterior purpose. If the detention is justified under law, the writ would be refused. The detention would be justified if it is made in accordance with the procedure established by a valid law. In Ganpati K. Reddy Vs. Nafisul Hasan AIR 1954 SC 636, writ was issued for it was found that the detention was made without complying with the requirement of Article 22.

 

If the detention was unlawful at the time when it was made, but if at the time of the decision of the writ, the detention becomes lawful, then the writ would be refused.

 

Habeas Corpus may be issued for enquiring the conflicting claim for the custody of an infant. The Court may grant an interim bail while dealing with habeas corpus petition.

 

MANDAMUS

 

The term mandamus means “the Order”. The writ of mandamus is thus a command issued by the Court, asking a public authority, to perform a public duty belonging to its office. It is an order issued by a Court commanding a public authority to do some particular act which appertains to its office and is in the nature of a public duty.

 

Mandamus is issued only when a legal duty is imposed on a public authority in the performance of which the petitioner has a legal right.

 

Mandamus would lie when there is a failure to perform a mandatory duty. The petitioner must show that he has made a demand to enforce that duly and the demand was refused.

 

Mandamus is a discretionary remedy, issued, inter alia, to compel performance of public duties, which may be administrative, ministerial or statutory in nature. Statutory duty may be either directory or mandatory. If mandatory, it is indicated by the use of the words “shall” or “must”. But, sometimes, “shall” and “must” have been interpreted as “may”. What is determinative as to whether the duty is obligatory, mandatory or directory, is the scheme of the Statute in which the “duty” has been set out. Even the “duty” is not set out clearly and specifically in the Statute, may be implied as correlative to a Right.

 

The High Court may issue a writ of mandamus where the public authority has failed to exercise or has wrongly exercised the discretion, conferred on it by a Statute or has exercised such discretion mala fide or on irrelevant consideration.

 

Mandamus will not lie when the duty is merely discretionary.

 

A writ of mandamus will not lie against a private person or any private organization, for no public duty is entrusted to it.

 

However, were the State in collusion with a private individual or any private organisation is contravening a constitutional provision or a statute, the writ may be issued. Mandamus cannot be granted to enforce an obligation arising out of a contract.

 

QUO WARRANTO

 

Quo warranto means “What is your authority” or “Warrant your authority”. The writ of quo warranto is issued against the holder of a public office calling upon him to show with what authority he holds that office. The writ is issued to oust a person from an office to which he is not entitled. It is issued against the usurper of an office.

 

The object is to confer jurisdiction upon the judiciary to control the executive action in making appointments to public offices and also to protect the public from usurpers of public offices

 

If the holder of the office was initially not qualified to hold it the writ would not lie if he subsequently gets qualified for the office. The writ of quo warranto can be claimed by any member of the public, whether any night of such person, has been infringed or not.

 

PROHIBITION

 

The terms prohibition means “to prohibit”. The writ is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction or acting contrary to the rules of natural justice. The writ commands the court or tribunal to whom it is issued to refrain from doing something which it is about to do, which is not within its jurisdiction or power. The writ of prohibition prevents the inferior court from usurping a jurisdiction with which it was not legally vested. In other words, the writ compels the inferior court to keep within the limits of its jurisdiction.

 

The writ of prohibition is a jurisdictional writ and is issued in both cases i.e., where there is excess of jurisdiction and where there is want of jurisdiction. Prohibition has much in common with Certiorari. In Hari Vishnu Kamath Vs. S. Ahmad Ishaque AIR 1955 SC 233, the Supreme Court explained that both the writs of prohibition and certiorari have for their object the restraining of inferior courts from exceeding their jurisdiction and they could be issued not merely to court, but to authorities exercising judicial or quasi-judicial functions.

 

The Court making the difference between these writs said:

 

When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the superior court for a writ of prohibition, and on that, an order will be issued for bidding the inferior court from continuing the proceedings. On the other hand, if the court hears the cause or matter and gives a decision, the party aggrieved will have to move the superior court for a writ of certiorari, on that, an order will be made quashing the decision on the ground of want of jurisdiction.

 

If thus follows that both prohibition and certiorari are issued with the object of restraining the inferior courts from exceeding their jurisdiction, but they are issued at different stages of proceedings.

 

CERTIORARI

 

Certiorari means “to certify”. The writ of certiorari is an order issued to an inferior court or tribunal to transmit to it the record of proceedings pending with them for scrutiny and if necessary, for quashing the same.

 

The object of this writ is to keep the exercise of powers by judicial and quasi-judicial tribunals within the limits of the jurisdiction assigned to them by law and to restrain them from acting in excess of their authority.

 

The writ of certiorari may be issued whenever anybody of persons having legal authority to determine questions affecting the right of subjects, and having the duty to acts judicially, act in excess of their legal authority.

 

(1) Judicial and Quasi-Judicial Authorities

The writ of certiorari lies against judicial or quasi-judicial authorities. It is issued only if the act done by the inferior body or authority is a “judicial” act which includes, the concept of “quasi-judicial” act. The writ lies against a body or authority having the duty to act judicially. The expression “duty to act judicially” cannot be defined exhaustively.

 

The writ of certiorari may be issued to a judicial or quasi-judicial authority on the following grounds –

 

(a) Want or excess of jurisdiction;

(b) Violation of the principle of natural justice:

(c) Error of law apparent on the face of the record.

 

(ii) Certiorari Against Administrative Authorities

 

The Supreme Court of India has been taking seriously, arbitrary action taken by administrative authorities, in spheres where the relevant law does not lay down any quash judicial obligation. The Court has come to realize that it is not always possible to determine whether a decision is administrative or quasi-judicial, by applying the traditional tests laid down in this behalf. Therefore, in recent case, the Court has widend the scope of certiorari. The writ of certiorari have been issued to strike down an administrative action found to be not in conformity with the principle of “fair play”.

 

SUPERVISORY JURISDICTION (Articles 227, 228 & 235)

 

The Constitution confers on every High Court the following kinds of supervisory jurisdiction -

 

(i) General superintendence (Article/227)

(ii) Power to transfer certain cases (Article 223)

(iii) Control over Subordinate Cours (Article 235)

 

(i) High Court's Power of Superintendence (Article 227)

 

Article 227(1) confers on the High Court the power of “superintendence over the courts and tribunals: throughout the territories in relation to which it exercises jurisdiction”.

 

In the exercise of this power the High Court may-

 

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and account shall be kept by the offices of any such courts.

 

Clause (3) of Article 227 further empowers the High Court “to settle table of fees to be allowed to the sheriffs and all clerks and officers of such Courts and to attorneys, advocates and pleaders practicing in such Court.”

 

However, the power of superintendence conferred by Article 227(1) on a High Court “does not extend over any court or tribunal constituted under any law relating to the Armed Forces”.

 

The power of superintendence-conferred by Article 227(1) is in addition to the power conferred upon the High Courts under Article 226. It is not confined only to administrative superintendence but also judicial superintendence. But the Court cannot substitute its views in place of views taken by statutory authority while exercising power under Article 227.

 

Being extraordinary in nature, it should be exercised most sparingly and only in appropriate cases in order to keep the subordinate courts, within the bounds of their authority and not for correcting mere error of facts, however erroneous those may be. The High Court may exercise this power and interfere

 

(a) when the subordinate court/tribunal acts arbitrarily or in capricious manner.

(b) When the subordinate court/tribunal acts in excess of jurisdiction vested in it or fails to exercise jurisdiction vested in it.

(c) When the subordinate court/tribunal acts in violation of the principles of natural justice.

(d) When there is error of law apparent on the face of the record.

(e) When the subordinate court/tribunal arrives at a finding which is perverse or based on no material.

 

The power under Article 227 should not ordinarily be exercised if any alternative remedy is available to the aggrieved party, even though the pursuing of that remedy may involve some inconvenience of delay.

 

In proceeding under Article 226 and 227, the High Court cannot sit in appeal over the findings recorded by a competent Tribunal. It has been held in Shama Prashant Rajie Vs. Ganpatrao, ÁIR 2002 SC 3094, that the jurisdiction of the High Court was supervisory and not appellate Consequently, Article 226 is not intended 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 order to be made.

 

(ii) Transfer of Certain Cases to High Court (Article 228)

 

Article 228 empowers the High Court to withdraw to itself certain cases pending before subordinate Courts. For the exercise of this power following conditions must be existing-

 

the High Court must be satisfied that a case pending in a court subordinate to it-

 

(i) Involves a substantial question of law as to the interpretation of the Constitution, and

 

(ii) The determination of the said question is necessary for the disposal of the case.

 

Where the High Court withdraws a case to itself than-

 

(a) the High Court may dispose of the case itself, or

(b) the High Court may determine the said question and return the case to the court from which the case has been so withdrawn together with a copy of its judgment on such question.

 

When the High Court has so returned the case, the court shall, on receipt thereof, proceed to dispose of the case in conformity with the judgment of the High Court on that question.

 

The expression “substantial question of laws to the interpretation of the Constitution” would have the same meaning as given under Article 131.

 

The object of Article 228 is to make the High Court the sole interpreter of the constitution in a Stater. It is not that the subordinate courts have no jurisdiction to interpret the Constitution. But the object is to have most competent decisions on questions involving provisions of the Constitution and to maintain a certain degree of uniformity in their interpretation.

 

(iii) Control over Subordinate Court (Article 235)

 

Article 235 provides: “The Control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court”.

 

Conclusion:

 

The Writ jurisdiction of the Supreme Court and High Courts stands as a beacon of justice in the Indian legal system. By providing an avenue for citizens to seek redress against the violation of their rights, these constitutional provisions ensure that the principles of justice, liberty, and equality, as enshrined in the Constitution, remain steadfast and accessible to every citizen. The synergy between the Supreme Court and High Courts in wielding their Writ jurisdiction reinforces the democratic ethos of the Indian legal system, making it a robust guardian of individual rights and liberties.

 

Frequently Asked Question (FAQ)

 

Q: What is the Writ jurisdiction of the Supreme Court?

 

A: The Writ jurisdiction of the Supreme Court empowers it to issue writs for the enforcement of fundamental rights guaranteed by the Constitution under Article 32.

 

Q: Which writs fall under the Writ jurisdiction of the Supreme Court?

 

A: The Supreme Court can issue writs such as Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto to protect fundamental rights.

 

Q: What is the purpose of the Writ of Habeas Corpus?

 

A: The Writ of Habeas Corpus is issued to protect an individual's right to personal liberty, ensuring that a person is not unlawfully detained.

 

Q: When can the Writ of Mandamus be issued by the High Court?

 

A: The Writ of Mandamus can be issued by the High Court to compel a public authority or government official to perform a legal duty that they have failed to perform.

 

Q: What is the significance of the Writ of Prohibition?

 

A: The Writ of Prohibition is issued to prevent an inferior court or tribunal from exceeding its jurisdiction or acting contrary to the rules of natural justice.

 

Q: Under what circumstances can the Writ of Certiorari be issued?

 

A: The Writ of Certiorari is issued to quash the order of an inferior court or tribunal if it is found to be in excess of jurisdiction, illegal, or against the principles of natural justice.

 

Q: How does the Writ of Quo Warranto operate?

 

A: The Writ of Quo Warranto is used to inquire into the legality of a person holding a public office and to ensure that the person has the legitimate authority to hold that office.

 

Q: Can the High Courts also exercise Writ jurisdiction?

 

A: Yes, High Courts have the power to issue writs for the enforcement of fundamental rights under Article 226 of the Constitution, similar to the Supreme Court's Writ jurisdiction under Article 32.

 

Q: What is the key difference between the Writ jurisdiction of the Supreme Court and the High Courts?

 

A: While both can issue writs for the enforcement of fundamental rights, the Supreme Court's jurisdiction is primarily focused on fundamental rights, whereas High Courts can issue writs for any legal right, not just fundamental rights.

 

Q: Can Writs be issued against private individuals?

 

A: Generally, writs are issued against public authorities, but in certain cases, when a private individual performs a public function, Writs may be issued against them to enforce legal rights.