1.

INTRODUCTION
The first question arise in our mind while reading the topic is
Actually, What Is Writ? The answer is here- A Writ is a formal written order
issued by a government entity in the name of the sovereign power. In most
cases, this government entity is a court. In modern democratic countries, the
administrative authorities are vested with vast discretionary powers. The
exercise of those powers often becomes subjective in the absence of specific
guidelines etc. Hence the need for a control of the discretionary powers is
essential to ensure that ‘Rule of Law’ exist in all governmental actions. The
judicial review of administrative actions in the form of writ jurisdiction is to
ensure that the decisions taken by the authorities are legal, rational, proper,
just, fair and reasonable. Safeguard of fundamental rights and assurance of
natural justice are the most important components of writ jurisdictions.

2. WRIT – A HISTORICAL PERSPECTIVE

The origin of writs1 can be drawn from the English Judicial system
and were created with the development of English folk courts-moots to the
common law courts. The law of writs has its origin from the orders passed by
the King's Bench in England. Writs were issued on a petition presented to the
king in council and were considered as a royal order. Writs were a written order
issued in the name of the king which acted as groundwork for the subsequent
proceedings.

However, with different segments writs took various forms and names.
The writs were issued by the crown and in the interest of the crown but with
the passage of time it became available for ordinary citizens also. However a
prescribed fee was charged for it and the filing of these writs were known as
Purchase of a writ.

The origin of writs in India goes back to the Regulating Act 1773 under
which a Supreme Court was established at Calcutta by a charter in 1774. A
similar charter also established the Supreme Courts of Madras and Bombay
with analogous provisions in 1801 and 1823 respectively. Letters patent were

1
https://shodhganga.inflibnet.ac.in/bitstream/10603/132538/5/05_chapter202.pdf
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given to all the three courts. These courts were replaced by the High Courts in
1862 under High Courts Act 1861. The High Courts so established enjoyed all
the powers, which were there with the Supreme Courts replaced by these
courts. Thus the three presidency High Courts inherited the power to issue
writs as successor to the Supreme Court. Other High Courts subsequently
established did not have these powers because they were newly created and
they could not inherit these powers as the presidency High Courts did. The
special authority, which was conferred by the charter on the three presidency
High Courts, was not mentioned in the letters patent of the subsequent courts.
However, the writ jurisdiction of these courts was limited to their original civil
jurisdiction, which they enjoyed under Section 45 of the Specific Relief Act,
1877.

A writ means an order. A writ is a written official order issued by the court.
The formal order may be in form of warrant, direction, command, order etc.
Writs can only be issued by the High Court Under Article 226 of Indian
Constitution,1950 and by The Supreme Court under Article 32 of Indian
Constitution,1950. Indian constitution has adopted the concept of ‘’prerogative
writs ‘from English common law. Writs was first used to describe a written
command of the King. Whereas, these writs are now available to a person
aggrieved by the decision of the inferior courts or administrative body in
England.

Differentiating between writs and order it can be said that writs can be issued
to provide extraordinary remedy i.e. in cases where the aggrieved person is
seeking for an extraordinary remedy usually against an administrative action,
whereas, order can in passes in any matter2. Hence, all the writs can be called
as order but all order can’t be called writs, because the ambit of order is larger
than writs.

2
https://blog.ipleaders.in/writ/
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3. PRINCIPLES OF EXERCISING WRIT JURIDICTION

Writs are meant as prerogative remedies. The writ jurisdictions

exercised by the Supreme Court under article 32 and by the high courts under
article 226, for the enforcement of fundamental rights are mandatory and not
discretionary. But the writ jurisdiction of high courts for 'any other purpose'
is discretionary. In that sense the writ jurisdiction of high courts are of a very
intrinsic nature. Hence high courts have the great responsibility of exercising
this jurisdiction strictly in accordance with judicial considerations and well
established principles. When ordinary legal remedies seem inadequate, in
exceptional cases, writs are applied3.

4. TYPES OF WRITS

The supreme court, and High courts have power to issue writs in the
nature of habeas corpus, quo warranto , mandamus , certiorari ,prohibition.
Under Arts. 32 and 226 respectively. These writs have been borrowed in India
from England where they had a long chequered history of development and
consequently have gathered a number of technicalities. Power to issue writs is
primarily a provision made to make available the Right to Constitutional
Remedies to every citizen. The right to constitutional remedies as we know is a
guarantor of all other fundamental rights available to the people of India. In
addition to the above, the constitution also provides for the parliament to confer
on the Supreme Court power to issue writs, for the purpose other than those
mentioned above. Similarly High courts in India are also empowered to issue
writs for the enforcement of any of the rights conferred by Part III and for any
other purpose.

 The concept of power to issue Writs has come from the maxim
“Ubi Jus Ibi Remedium” which states that for every wrong, the
law provides a remedy. Hence, when there is a violation of a
right, the law provides a remedy.
 Writs are issued for the enforcement of Fundamental Rights.

3
http://www.legalserviceindia.com/article/l402-Role-Of-Writs-In-The-Administrative-Law.html
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 The constitution of India identifies the following “five kinds of writs”
Writs that are issued by Constitutional courts i.e. Supreme Court and the High
Courts -

1. The writ of Habeas corpus

2. The writ of Prohibition

3. The writ of Certiorari

4. The writ of Mandamus

5. The writ of Quo warranto

1. The writ of Habeas corpus

In Latin Habeas Corpus literally means “you may have the body”.
This writ is basically meant for a remedy against illegal confinement of a person.
If a person is caused injury or wrong by wrongful confinement that person must
be discharged under this writ.

 Pre-condition for issuance of Habeas Corpus by Courts is that the person

should have been confined and such confinement should be illegal.
 Habeas Corpus is used for safeguarding individual freedom against
arbitrary state action which violates Fundamental Rights guaranteed
under the Constitution.
 It is well settled that even if fundamental rights are suspended during
Emergency, the right to move the High Court under Article 226 and the
Supreme Court under Article 32 is not suspended and therefore the
High Court and the Supreme Court could be moved in such a situation.

Who can file the writ of Habeas Corpus?

According to the general rule the writ of Habeas corpus can be filed by
the person whose rights have been infringed. But, there is always an exception.
It states that the person himself or his friend or relative can file the petition.

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To whom it is issued?

Authorities of states, Governments, Organizations or Individuals.

The writ can be issued in the following instances:

 When the person has been confined and not produced before the
magistrate within 24 hours.
 When the person has not violated any law and is still arrested.
 When the reason of arrest of a person under a law is unconstitutional.
 When detention is done to harm the person or is mala-fide

Case Law. A.D.M. Jabalpur v. Shiva Kant Shukla4

This case is known as habeas corpus case, here it is explained, what is

a writ of habeas corpus mean? Quoting Justice Khanna “writ of habeas
corpus is a process of securing the liberty of an aggrieved person by
providing an adequate method for immediate relief from wrongful or illegal
detention. Whether the person kept in wrongful custody is in prison or
under private custody of an individual.” and after the enquiry regarding
the cause of his imprisonment by the High Court and the judges of that
court, if it is found that there is no legal jurisdiction for that incarceration,
the aggrieved person is ordered to be released from custody.

Case Law. D.K.Basu v. State Of West Bengal 5

This is a landmark judgment in which Justice T.S.Thakur has laid

down 11 which are supposed to be followed by the person making an arrest of
an accused person. These guidelines include production of the person before
any magistrate within 24 hours from the time of his arrest and held that in case
if these guidelines are not being followed by the court then person detained
must be entitled to be released on the same grounds on a writ of habeas corpus.

4
(1976) 2 SCC 521
5
1977 1 SCC 416
5
 1. The legislature which is making law in regards to a man, depriving him
from his personal liberty must also be empowered to make laws under
Article 246 making knots with the distribution of legislative power.
2. Writ of habeas corpus can only be issued if there is illegal restrain and
the person is entitled to be released on a petition of habeas corpus.
Question asked by the court on a petition of habeas corpus is whether
the detention is lawful or not and if it is answered positively then such a
writ will not be issued and if answered negatively then the writ must be
issued.

Cases
This writ was issued in Rajan Case6, a student victim of torture in local
police custody during the nationwide Emergency in India in 1976.On 12th
March 2014, Subrata Roy’s counsel approached the Chief Justice moving a
habeas corpus petition.
Current Linkage- Hadiya Case: A unique Case of Habeas
Corpus Background of the case7

 Hadiya is a 24-year student of homoeopathy from Kerala who converted

to Islam before getting married to Shefin Jahan, a Muslim man.
 In early 2016, her father initially filed a missing person report with the
police and later filed a Habeas Corpus petition in the Kerala High Court
to trace her.
 Shefin Jahan is on the National Investigation Agency (NIA) radar.
 Both NIA and Hadiya's father claimed Jahan was a recruiter for radical
groups.
 After the petition and on NIAs report to the Supreme Court which stated
that Hadiya was a victim of indoctrination and psychological kidnapping
i.e. she was brainwashed to accept Islam and marry Jahan, the Kerala
High Court annulled the marriage.
 This case was popularised by the Indian media as a case of love jihad.

6
https://www.daytodaygk.com/different-types-of-writs-in-indian-constitution/
7
https://www.jatinverma.org/types-and-scopes-of-writs-in-the-constitution-of-india
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  A plea was filed by Hadiya’s husband. The Supreme Court bench
comprising Justices A M Khanwilkar and D Y Chandrachud examined
the plea.
 On January 23, 2018, the judges proclaimed the decision that no one
including the SC can question Hadiya’s choice of marrying a person and
that the NIA cannot investigate whether she married a good person or a
bad person.
 When it was stated that “Marriage is only a device to legitimise her illegal
confinement,” the Supreme Court said that “Who is the person to tell
the court? She must say. She is an adult. She appears in court and
says she is married. What can the court do?”
 Thus, the court alienated itself from questioning Hadiya’s choice for
a husband.

2. The writ of Prohibition

Typically prohibition means to stop. This writ is popularly known as a “Stay

order.” The Supreme Court and High Courts may prohibit the lower courts like
that of the special tribunals, magistrates, commissions or other judiciary
officers who are doing an act which exceeds to their jurisdiction or acting in
contrary to the rule of natural justice. E.g., if a judicial officer has personal
interest in a case, it may hamper the decision and the course of natural justice.

It means that, this writ is issued when the courts have acted in excess of
jurisdiction or in violation of principles of natural justice. When the writ is
issued, proceedings in the lower court have stayed i.e. Res sub judice.

Who can file the writ of Prohibition?

The writ of prohibition can only be filed by the aggrieved individual.

To whom it is issued?

An Inferior Court, Tribunal, Quasi-judicial Authority.

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The writ cannot be filed in the following circumstances:

 If the proceeding has matured into decision, writ will not lie.
 If the said court or authority in which writ is pending ceases to exist, writ
will not lie.

Requisites of Prohibition:

 The case must be an on-going in an Inferior Court, tribunal or Quasi-

judicial Authority;
 Writ of prohibition can be issued only when the proceedings are pending
in a court;
 Writ of prohibition can be issued at any stage of the proceeding.

Case Law. East India Commercial Co. Ltd v. Collector of Customs8

In the given case an observation is given by the Supreme Court that writ of
prohibition is an order directing inferior courts and tribunals to stop from
proceeding therein on the ground that the proceeding are taking place with
excess jurisdiction or lack of jurisdiction.

Current Linkage: An example of Prohibition, though not strictly applicable

[Writs] Ministers not under RTI: Delhi High Court9

 The Delhi High Court has set aside the Central Information Commission
(CIC) order declaring ministers as “public authorities” under the
transparency law.
 Delhi High Court overturned the 2016 order of the CIC, declaring the
“ministers in the Union Government and all State Governments as public
authorities” under the Right to Information (RTI) Act.
 Clarifying its stance, H.C. said that there was no occasions for the CIC to
enter upon the question as to whether a Minister is the public
authority under the Section 2(h) of the Act. Further, directions which

8
AIR 1960 Cal 1
9
https://www.jatinverma.org/types-and-scopes-of-writs-in-the-constitution-of-india
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 is issued by the CIC are also wholly outside the scope of the matter before
CIC.

Analysis: The CIC directive that ministers were answerable under the RTI Act
would mean that people can directly send the questions to a minister by filing
an RTI application which will be answered by the public information officer in
his office. The case emanates from the application filed by a man in 2014 before
Additional Private Secretary, Minister of Law and Justice seeking to know the
time period of minister or minister of state meeting the general public.

3. The writ of Certiorari

Certiorari means “to certify.” Writ of Certiorari is a curative writ. The

writ of certiorari is issued by the High Court to subordinate judicial or quasi-
judicial bodies, directing them to transfer the records of a particular case, in
order to determine whether the court has the jurisdiction to give the order, or
whether it is against the principles of natural justice. A writ of certiorari is
corrective in nature.

When can a writ of certiorari be issued?

Writ of certiorari can be applied in situations where a court, on passing an

order, has gone beyond their jurisdiction in doing so, fraud or error on the face
of records. E.g., when the court passes an order for a case which they had no
power to do so, the aggrieved can apply for the writ of certiorari.

Circumstances in which writ of certiorari can be issued:

1. The court, tribunal or an officer should be having legal authority to determine

the question with a duty to act judicially.

2. The order passed by the court, tribunal or officer must be without jurisdiction
or in excess of the judicial authority vested by law in such court, tribunal or
officer.

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3. The order could also be against the principles of natural justice or the order
could contain an error of judgment in appreciating the facts of the case.

Against who is it issued?

It is issued against the judicial or quasi-judicial authority, acting in a judicial

manner.

The difference between certiorari and prohibition is:

 The writ of certiorari will be issued when a case has been already
adjudicated upon, i.e. when the decision has been announced. (Res Sub
Judicata)
 Prohibition is issued during the pendency of the proceedings. (Res sub
judice).

Case Law. A.K.Kraipak v. Union of India10

The concept of natural justice and the requirement of fairness in

actions, the scope of certiorari have been extended even to administrative
decisions. An instance showing the certiorari powers was exercised by the
Hon’ble Supreme court in where the selection was challenged on the ground of
bias. The Supreme Court delineated the distinction between quasi-judicial and
administrative authority. The Supreme Court exercising the powers issued the
writ of Certiorari for quashing the action. Certiorari is corrective in nature. This
writ can be issued to any constitutional, statutory or non-statutory body or any
person who exercise powers affecting the rights of citizens.

4. The writ of Mandamus

The term “Mandamus” means, “We Command” and this writ is issued to a
person who is required under the law to perform a specify duty. In other words,

10
AIR 1970 SC 150
10
the “writ of Mandamus” compels the authority to perform that duty which
such authority is required to perform under the law.

Writ of Mandamus can be issued against following:

 a private individual or private body;

 if the duty in question is discretionary and not mandatory;
 against president or governors of state;
 against a working chief justice;
 To enforce some kind of private contract.

Who can file the writ of Mandamus?

A petition for writ of mandamus can be filed by any person who seeks a legal
duty to be performed by a person or a body. Such a filing person must have real
or special interest in the subject matter and must have legal right to do so.

What are the grounds of refusal?

When a writ of mandamus is filed the relief granted is discretionary and not a
matter of right. The Court on any of the following grounds may refuse it; the
Supreme Court has held that where the act against which mandamus is sought
has been completed, the writ if issued, will be in fructuous. The Court would
also refuse a writ of mandamus, if it would be meaningless, owing to lapse or
otherwise.

Difference between Mandamus and Prohibition

 While Mandamus directs activity, Prohibition directs inactivity.

 While Mandamus can be issued against any public official, public body,
corporation, inferior court, tribunal or government; prohibition can be
issued only against judicial and quasi-judicial authorities and NOT
against administrative authorities, legislative bodies

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Case Law. Bombay municipality v. Advanced builders 11

Bombay municipality had prepared town scheme which approved state

government no action was take for long time .The SC direct to municipality to
implement of a planning scheme.

5. The writ of Quo warranto

It means “by what authority?” or “show the authority”. It means ‘by

what authority or warrants’. The object of this writ is to prevent a person who

has wrongfully and unlawfully taken the possession of the office from

continuing in the office. This writ is issued to examine the legality of the claim

of a person or public office. The person or authority is stopped to act in an office

which he is not entitled to; and thus stops usurpation of public office by anyone.

The writ of Quo Warranto is in the nature of judicial remedy by which, any
person who has occupied the office unlawfully or illegally is asked to show by
what authority he holds such office. The writ of Quo warranto is pertinent only
to the public offices only and not to private offices.

Essentials

 The office must have been constituted by statute, or by the Constitution

itself;
 The duties of the office must be of public nature;
 The office must be one of the tenure of which is permanent in the sense
of not being terminable at pleasure; and
 The person proceeded against has been in actual possession and in the
user of particular office in question.

11
AIR 1972 SC 793
12
Case Law. Anand Bihari Mishra v. Ram sahay 12

In this case the office of speaker of a legislative assembly is held a public office
and writ of quo warranto can be issued for inquiring the appointment made.It
can also lie to question the appointment of a High Court judge.

Case Law. University of Mysore v. Govinda Rao13

In this case the Supreme Court observed that the procedure of quo Warranto
confers the jurisdiction and authority on the judiciary to control executive
action in making the appointments to public offices against the relevant
statutory provisions; it also protects a citizen being deprived of public office to
which he may have a right.

5. CONSTITUTIONAL PROVISIONS

There has been specifically made provisions in the Constitution which

empowers the Supreme Court and High Courts to issue writs in the nature of
Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari. Article
32 and 226 of the constitution of India has designed for the enforcement of
fundamental rights and for a judicial review of administrative actions, in the
form of writs. It is a constitutional remedy available to a person to bring his
complaint or grievance against any administrative action to the notice of the
court. Safeguard of fundamental rights and assurance of natural justice are the
most important components of writ jurisdictions

Writ jurisdiction is exercised by the Supreme Court and the High courts
only. This power is conferred to Supreme Court by article 32 and to high courts
by article 226.

•Article 32(1) guarantee a person the right to move the Supreme Court for the
enforcement of fundamental rights guaranteed by part III of the constitution.

12
https://www.casemine.com/judgement/in/5ac5e2ed4a932619d9038b

13
1965 AIR 491
13
•Article 32(2) empowers the Supreme Court to issue direction or orders or writs
in the nature of Habeas Corpus, Certiorari, Prohibition, mandamus and Quo-
warranto for the enforcement of fundamental rights.

•Article 226 empowers the state high courts to issue directions, orders or writs
as mentioned above for the enforcement of fundamental rights and for 'any
other purpose'. i.e., High courts can exercise the power of writs not only for the
enforcement of fundamental rights but also for a 'non fundamental right'

Thus the constitution provides the discretionary remedies on the High

Court and the Supreme Court. In the absence of the provisions of such remedies
no one can enforce its rights given. Thus wherever there is a right there must
be a remedy for it. Thus it should satisfy the maxim, ‘ubi jus ibi remedium.’
One of the principle makers of the constitution, Dr. Ambedkar has given the
prime importance to Article 32 among all other articles from the Indian
Constitution. He has referred that, “It is the very soul of the Constitution and
the very heart of it, “It is the very soul of the Constitution and the very heart of
it.”

In Devilal v. STO, it has been marked that, “There can be no doubt that
the Fundamental Rights, guaranteed to the citizens are a significant feature of
our Constitution and the High Courts under Article 226 are bound to protect
these Fundamental Rights.” In Daryao v. State of U.P14. it was held that the
right to obtain a writ must equally be a fundamental right when a petitioner
presents the case. Thus, it cannot merely be considered as an individual’s right
to move the Supreme Court but it is also the duty and responsibility of the
Supreme Court to protect the fundamental rights.

6. ROLE OF ADMINISTRATIVE LAW

The administrative law is that branch of law that keeps the government
actions within the bounds of law or to put in negatively, it present the
enforcement of blatantly bad orders from being derogatory. Administrative law
has greatly demarcated the checks, balance and permissible area of an exercise

14
1961 AIR 1457
14
of power, authority and jurisdiction over administrative actions enforced by any
State, Government agencies and instrumentalities defined under Article 12 of
the Constitution of India. And the judiciary is dynamically carving the principles
and exceptions, while making the judicial review of administrative action.

The Courts have constantly tried to protect the liberties of the people and
assume powers under the Constitution for judicial review of administrative
actions. The discretionary powers have to be curbed, if they are misused or
abused, it is the essence of justice. The socio- politics instrument need not cry,
if the courts do justice and perform the substantial role. That is the essence of
justice. The welfare state has to discharge its duty fairly without any arbitrary
and discriminatory treatment of the people in the country. If such powers come
to the notice of the Courts, the courts have raised the arms consistently with
the Rule of Law. Today, the Government is the provider of social services, new
form of poverty like jobs, quotas, licences etc. The dispenser of special services
cannot therefore act arbitrarily. Courts laid the standard of reasonableness in
Government act.

7. WRIT AS A TOOL FOR JUDICIAL REVIEW

Judicial review of administrative action has been a traditional function of

the courts. Now as far as the role of the writs is concerned, let us go by
illustration over the cases on discretion. Conferment of discretionary powers
has been accepted as necessary phenomena of modern administrative and
constitutional machinery. Law making agency legislates the law on any subject
to serve the public interest and while making law, it has become indispensable
to provide for discretionary powers that are subject to judicial review. The
Courts have retained their jurisdiction to test the Statute on the ground of
reasonableness.

Mostly, the courts review on two tools;

1. Firstly whether the statute is substantively valid piece of legislation and,

2. Secondly whether the statute provides procedural safeguards.

If these two tests are not found, the law is declared ultra vires and void of
Article 14 of the Constitution.

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The role of writs is also sensibly laid down in a famous PADFIELD’S CASE15

In England in earlier days the Courts usually refused to interfere where

the Government or the concerned officer passed what was called a non-speaking
order, that is, an order which on the face of it did not specify the reasons for
the orders. Where a speaking order was passed the Courts proceeded to
consider whether the reasons given for the order or decision were relevant
reasons. Where there was a non-speaking order they used to say that it was
like the face of the Sphinx in the sense that it was incurable and therefore hold
that they could not consider the question of the validity of the order. Even in
England the Courts have travelled very far since those days. They no longer find
the face of the Sphinx inscrutable.

Case Law. S.R. Bommai v. Union of India16

That Supreme Court by a majority of six judges against three held that
the presidents satisfaction was justifiable. While three judges held that there
were not judicially manageable standards for determining the validity of the
Presidents action, six judges said that the Presidents decision could be reviewed
by the court. To the question whether court would apply the same standards
for the determination of the validity of action of any other administrative
authority the majority judges responded differently, some holding that the
standards would apply while other preferring to give greater presumption of
validity to the Presidents action.

8. CONCLUSION

The prerogative powers of writ jurisdiction conferred by the

constitution for judicial review of administrative action is undoubtedly
discretionary and yet unbounded in its limits. The discretion however should
be exercised on sound legal principles. In this respect it is important to
emphasis that the absence of arbitrary power is the first essential of the rule of
law upon which the whole constitution system is based. In a system governed
by rule of law when discretion is conferred upon the executive authorities it

15
UKHL 1,, AC 997
16
(1994)3 SCC1
16
must be based on clearly defied limits. Thus the rule of law from this point of
view means that the discretion or the decision must be based on some principles
and rules. In general the decision should be predictable and citizens should
know where he is. If a decision is taken not on the basis of any principle or rules
then such decision is arbitrary and is taken not in accordance with the rule of
law.

The Constitution is the law of the laws and nobody is supreme. Even the
judges of Supreme Court are not above law and they are bound by the decisions
which are the law of the land declared by them under the writ petitions. Thus,
the constitutional remedies provided under the constitution operate as a check
and keeps the administration of government within the bounds of law. In our
country the judiciary or law is supreme. Writ jurisdictions are judicial reviews
of administrative actions. Judiciaries always stand to ensure that all
administrative actions are confined to the limits of the law .Thus, the writ
jurisdictions act as judicial restraints of policy decisions which are
unreasonable, unfair and against public interest.

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 9. BIBILOGRAPHY

BOOK REFERRED:

 Lectures on Administrative Law, C.K. Takwani

 Administrative Law, S.P. Sathe
 Administrative Law, Dr. J.J.R. Upadhyay

WEBSITE REFERRED:

 www.legalserviceindia.com

 https://www.casemine.com

 https://www.jatinverma.org

 https://blog.ipleaders.in/writ/

 https://shodhganga.inflibnet.ac.in

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