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Introduction

In this lecture you will be able to understand the concept of supreme court and
high courts in India. India has one of the oldest legal systems in the world. Its law
and jurisprudence has remarkable impact running from decades which blooms with
life and spirit ,sprouted into traditional concept of different people which
constituted India into a Sovereign Democratic Republic, containing a federal
system with Parliamentary form of Government in the Union and the States, an
independent judiciary, guaranteed Fundamental Rights and Directive Principles of
State Policy containing objectives which though not enforceable in law are
fundamental to the governance of the nation. In this lecture you will be able to
understand the concept of judicial activism which keeps the functioning of
supreme court and high courts in a independent and judicious manner. At the
apex of the entire judicial system, exists the Supreme Court of India below which
are the High Courts in each State or group of States.. In this lecture you will
understand the concept of writ jurisdiction of supreme court and high courts.
Articles 32 and 226 are the provisions of the Constitution that together provide an
effective guarantee that every person has a fundamental right of access to courts.
Article 32 confers power on the Supreme Court to enforce the fundamental rights.
It provides a guaranteed, quick and summary remedy for enforcing the
Fundamental Rights because a person can go straight to the Supreme Court without
having to go undergo the dilatory process of proceeding from the lower to higher
court as he has to do in other ordinary litigation. The Supreme Court is thus
constitution the protector and guarantor of the fundamental rights.
History

The Indian High Courts Act of 1861 was an act of the Parliament of the United
Kingdom to authorize the Crown to create High Courts in the Indian colony.
Queen Victoria created the High Courts in Calcutta, Madras, and Bombay by
Letters Patent in 1865. These High Courts would become the precursors to the
High Courts in the modern day India, Pakistan, and Bangladesh. The Act was
passed after the Indian Rebellion of 1857 and consolidated the parallel legal
system of the Crown and the East India Company. These new High Courts had the
distinction of being the highest Courts for all cases till the creation of Federal
Court of India under the Government of India Act 1935. The Federal Court had
jurisdiction to solve disputes between provinces and federal states and hear appeal
against judgements of the High Courts. On the 28th of January, 1950, two days
after India became a Sovereign Democratic Republic, the Supreme Court came
into being. The inauguration took place in the Chamber of Princes in the
Parliament building which also housed India's Parliament, consisting of the
Council of States and the House of the People. Supreme Court initially had its seat
at Chamber of Princes in the Parliament building where the previous Federal Court
of India sat from 1937 to 1950. The first Chief Justice of India was Sir H J Kania.
In 1958, the Supreme Court moved to its present premises. Originally, Constitution
of India envisaged a Supreme Court with a Chief Justice and seven Judges; leaving
it to Parliament to increase this number. They began at 9.45 a.m. when the Judges
of the Federal Court - Chief Justice Harilal J.Kania and Justices Saiyid Fazl Ali, M.
Patanjali Sastri, Mehr Chand Mahajan, Bijan Kumar Mukherjea and S.R.Das - took
their seats. In attendance were the Chief Justices of the High Courts of Allahabad,
Bombay, Madras, Orissa, Assam, Nagpur, Punjab, Saurashtra, Patiala and the East
Punjab States Union, Mysore, Hyderabad, Madhya Bharat and Travancore-Cochin.
The original Constitution of 1950 envisaged a Supreme Court with a Chief Justice
and 7 puisne Judges - leaving it to Parliament to increase this number. In the early
years, all the Judges of the Supreme Court sat together to hear the cases presented
before them. As the work of the Court increased and arrears of cases began to
cumulate, Parliament increased the number of Judges from 8 in 1950 to 11 in 1956,
14 in 1960, 18 in 1978, 26 in 1986 and 31 in 2008 (current strength). As the
number of the Judges has increased, they sit in smaller Benches of two and three -
coming together in larger Benches of 5 and more only when required to do so or to
settle a difference of opinion or controversy. The Constitution seeks to ensure the
independence of Supreme Court Judges in various ways. A Judge of the Supreme
Court cannot be removed from office except by an order of the President passed
after an address in each House of Parliament supported by a majority of the total
membership of that House and by a majority of not less than two-thirds of
members present and voting, and presented to the President in the same Session for
such removal on the ground of proved misbehaviour or incapacity. A person who
has been a Judge of the Supreme Court is debarred from practising in any court of
law or before any other authority in India.The proceedings of the Supreme Court
are conducted in English only. Supreme Court Rules, 1966 are framed under
Article 145 of the Constitution to regulate the practice and procedure of the
Supreme Court.The Registry of the Supreme Court is headed by the Secretary
General who is assisted in his work by seven Registrars, and twenty one Additional
Registrars etc. Article 146 of the Constitution deals with the appointments of
officers and servants of the Supreme Court Registry.
Concept of Supreme Sourt and High Courts:

The Supreme Court of India is the highest court of the land as established by Part
V, Chapter IV of the Constitution of India. According to it, the Supreme Court is a
federal court, guardian and protector of the Constitution and the highest court of
appeal.Articles 124 to 147 of the Constitution lay down the composition and
jurisdiction of the Court. First of all it is an appellate court which takes up appeals
against judgments of the High Courts of the states and territories. However, it also
takes writ petitions in cases of serious human rights violations or any petition filed
under Article 32 which is the right to constitutional remedies or if a case involves a
serious issue that needs immediate resolution. Supreme court is also having powers
to transfer cases on the basis of application made by attorney general of India or by
parties themselves that questions are substantially important, then supreme court
may decide the matter itself. Supreme court’s judgement is binding on all other
courts not because of its conclusion but because of its ratio and principles laid
therin which is very difficult job to do as different judges are having different
opinions and on the basis of those reasons based on principles .Culling out ratio
from a judgment is difficult. A thorough reading of an entire judgment is required
to identify a ratio.

Powers and Jurisdiction of Supreme Court: powers of supreme court are wide
than any other organs and no other organ is having jurisdiction to limit the powers
of supreme court but Parliament can only add to the powers and jurisdiction of the
Supreme Court. In the civil cases, Parliament may change the pecuniary limit for
the appeals to the Supreme Court. Parliament may enhance the appellate
jurisdiction of the Supreme Court. It may confer the supplementary powers on the
Supreme Court to enable it work more effectively. It may confer power to issue
directions, orders or writs for any purpose other than those mentioned in Art. 32.
Powers of the Supreme Court cannot be taken away. As in Article 124 it is laid,
“There shall be, a Supreme Court of India.” which is having supreme authority in
judiciary in the country and will manage and administer judiciary in accordance
with rules and regulations of supreme court. No appeal lies against its decisions.
The Supreme Court comprises the Chief Justice and 30 other Judges. The
proceedings of the Supreme Court are conducted in English only. Supreme Court
Rules, 1966 are framed under Article 145 of the Constitution to regulate the
practice and procedure of the Supreme Court. The Constitution provides for the
appointment of ad hoc judges if at any time the number of judges available is not
sufficient for the quorum to hold or continue any session of the Court, the Chief
Justice of India, with the prior consent of the President, can request in writing the
attendance of a High Court judge as an ad hoc judge in a session of the Supreme
Court for a definite period. The judges of the Supreme Court are appointed by the
President after consultation with some sitting Judges of the Supreme Court and the
High Courts in the states. In the appointment of other judges, the President consults
the Chief Justice of the Supreme Court and while appointing the Chief Justice; he
consults other judges or some of them. Regarding the method of appointment of
the Chief Justice of India, the seniority principle is respected and followed.
Whenever there is a vacancy in the office of Chief Justice of India, the senior-most
judge of the Supreme Court is elevated to this office. In case the office of the Chief
Justice suddenly falls vacant or when the Chief Justice may be unable to perform
his duties due to absence or otherwise, the President can appoint as Acting Chief
Justice. The President appoints the next senior-most judge of the Supreme Court as
the acting-Chief Justice. He continues to perform his duties till the appointment of
a new Chief Justice or till the resumption of office by the regular Chief Justice.
Each judge of the Supreme Court possesses following essential qualifications:
(i) He is a Citizen of India;

(ii) He has been, for at least 5 years, a judge of a High Court or of two or more
such Courts in succession; or

(iii) He has been an advocate of a High Court for at least ten years; or

(iv) He is, in the opinion of the President, a distinguished jurist.

A Judge of the Supreme Court holds office until he attains the age of sixty-
five years. The Constitution provides for a difficult method of removal of judges.
They can be removed only on the ground of proven misbehavior or incapacity.
Judges can be removed by impeachment. A judge of the Supreme Court can be
removed from his office by an order of the President. Such an order can be passed
by the President only when an address passed by the two Houses of the Parliament
by a majority of total members and 2/3rd majority of members present and voting
in each House, is presented to him. However, any Judge can at any time resign his
judgeship. The Chief Justice of India and every other judge draws a monthly salary
of Rs. 100000 and Rs. 90000 respectively. These salaries are charged on the
Consolidated Fund of India and hence are not subject to Parliament’s vote. Besides
the salary, every judge draws several other allowances, and upon retirement is
entitled to a pension. The Supreme Court sits in Delhi. It can, however, meet in any
other place as the Chief Justice may decide with the approval of the President of
India.

Original Jurisdiction: The Supreme Court can directly hear several cases, which
cannot be heard by any other court. It constitutes its original jurisdiction, like
Disputes between the Government of India and one or more States, Disputes
between the Government of India and any State or States on the one side and one
or more States on the other, Disputes between two or more States which involves
any question on which the existence of a legal right depends. So all legal disputes
between the centre and states and among the states can be heard and settled by the
Supreme Court. The Supreme Court is the highest court of appeal in all civil and
criminal cases. It can hear appeals against the decisions of the State High Courts,
and this constitutes its Appellate Jurisdiction. The appeal can come before the
Supreme Court in case the High Court issues a certificate to this effect.

In civil cases there can be an appeal against the judgement of the High Court when
the latter certifies that. The case involves a substantial question of law of general
importance; or In the opinion of the High Court the said question needs to be
decided by the Supreme Court.

In criminal cases an appeal lies from any judgement given by the High Court if.
The High Court has reversed an order of acquittal of an accused and sentenced him
to death; or The High Court has withdrawn for trial a case from any subordinate
court and awarded death sentence to the accused; or The High Court certifies under
Article 134(A) that the case is fit for appeal to the Supreme Court. The Supreme
Court can grant special leave of appeal against any judgement, decree, or order in
any case decided by any court or tribunal in India. The President of India can seek
the advice of the Supreme Court in respect of any legal matter of high public
importance. In such a case the Supreme Court has to give its advisory opinion to
the President. However, such an advice is not binding upon the President. The
Supreme Court has the power to issue writs for the enforcement of the
Fundamental Rights of the people under Article 32 of constitution. It acts as the
guardian and protector of the fundamental rights of the people. Jurisdiction
regarding the electoral dispute in respect of the election of the President and the
vice president. It has the power to reject any law, which it finds to be
unconstitutional. It can determine the constitutional validity of all laws, which are
challenged before it. This is known as the Court’s power of Judicial Review. The
Supreme Court is a Court of Record. Its decisions bind all courts in India. High
Courts and Subordinate Courts use its decisions/judgments as laws and decide the
cases before them. Records of the Supreme Court are admitted as Final evidences
and cannot be questioned when these are produced and referred to in any court of
India. The Supreme Court has the power to review its own decisions. At any time it
can change or revise its earlier Judgments.

Miscellaneous Powers and Functions:

i. The Supreme Court has the power to make rules regarding the organisation,
functioning and procedures to be followed by all courts.

ii. The Supreme Court, with the approval of the President, makes rules regulating
its own practice and procedure.

iii. The Supreme Court, with the approval of the President, can lay down the
conditions of service of its employees.

iv. The President can take action, including removal from membership, against the
members of the Union Public Service Commission but only when the Supreme
Court finds them guilty of misbehavior. In this sphere, the President can act only
on the recommendations of the Supreme Court.

v. When the office of the President falls vacant, and due to some reason the Vice-
President is not available to act as President, the Chief Justice of India takes over
as the acting-President. He continues to act so till the filling up of the vacancy.

The above account of the powers and jurisdiction of the Supreme Court of
India clearly brings out the strong position enjoyed by it in the Indian Political
System. It happens to be, as Prof. K.V. Rao describes, “the most powerful court in
the world having the largest jurisdiction.” Supreme Court of India has played and
is still playing an important role in the evolution of the Constitution.

Under article 32 rights can be enforced before Supreme Court of India.

(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 warrant
to 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 clauses (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.

Present position of appointment of judges according to collegiums system in

supreme court of India and High courts.
Recently government make fresh appointments and number of Supreme Court
judges to 29 from 25, still two short of its approved strength. However, at least five
current judges are slated to retire by the end of this year of 2016.On 24 April,
Chief Justice T. S. Thakur had made an emotional appeal to Prime Minister
Narendra Modi to appoint more judges speedily to help in reducing pendency of
cases. In turn, Modi promised prompt action and a possible consultation with the
judiciary to tackle the issue. These are the first set of appointments to the top court
since it declared the National Judicial Appointments Commission (NJAC) Act,
2014, as unconstitutional and an infringement on judicial independence. In October
last year, a five-judge constitution bench struck down the Constitution (Ninety-
ninth Amendment) Act, 2014, and the NJAC Act that sought to give the executive
a say in the appointment of top judges and restored the collegium system of
making judicial appointments.Under the collegium system, a group of the five
most senior Supreme Court judges appoints other judges to the higher judiciary—
the high courts and the Supreme Court. Articles 124 and 217 of the Constitution
stipulate that judges will be appointed by the president of India after “consultation”
with the chief justice of India and other judges

Power and jurisdiction of High Courts in India

There are 24 High Courts at the State level. Article 141 of the Constitution of
India mandates that they are bound by the judgments and orders of the Supreme
Court of India by precedence. These courts have jurisdiction over a state, a union
territory or a group of states and union territories. Below the High Courts are a
hierarchy of subordinate courts such as the civil courts, family courts, criminal
courts and various other district courts. High courts are instituted as constitutional
courts under Part VI, Chapter V, Article 214 of the Indian Constitution.

The High Courts are the principal civil courts of original jurisdiction in the state
along with District Courts which are subordinate to the High courts. However,
High courts exercise their original civil and criminal jurisdiction only if the courts
subordinate to the high court in the state are not competent (not authorized by law)
to try such matters for lack of pecuniary, territorial jurisdiction. High courts may
also enjoy original jurisdiction in certain matters if so designated specifically in a
state or Federal law. e.g.: Company law cases are instituted only in a high court.
However, primarily the work of most High Courts consists of Appeals from lower
courts and writ petitions in terms of Article 226 of the Constitution of India. Writ
Jurisdiction is also original jurisdiction of High Court. The precise territorial
jurisdiction of each High Court varies. Judges in a high court are appointed by the
President after consultation with the Chief Justice of India, Chief Justice of High
Court and the governor of the state. The number of judges in a court is decided by
dividing the average institution of main cases during the last five years by the
national average, or the average rate of disposal of main cases per judge per year in
that High Court, whichever is higher. Allahabad high court is having greater
strength (95) of judges than any other high courts in India. And Manipur and
Maghaliya having lesser number (3) high court judges.The Calcutta High Court is
the oldest High Court in the country, established on 2 July 1862, whereas
the Allahabad High Court is the largest, having a sanctioned strength of judges at
160.High courts which handle a large number of cases of a particular region, have
permanent benches (or a branch of the court) established there. For litigants of
remote regions, 'circuit benches' are set up, which work for those days in a month
when judges visit.

Under article 226 rights, orders or directions can be issued before high courts of
India.

(1) Notwithstanding anything in article 32, every High Court shall have power,
throughout the territories in relation to which it exercises 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, prohibition, quo warranto and 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 High Court
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 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 said 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 32

JUDICIAL ACTIVISM:

The legislative and executive wings are closely connected with each other due to
this, the executive is responsible to the legislature for its actions and derives its
powers from the legistlature. The head of the executive is the president, but in
reality he is only a nominal head and the real power vests with the Prime Minister
and his Cabinet of ministers as in Article 74(1). In certain situations the President
has the capacity to exercise judicial and legislative functions. For example, while
issuing ordinances The judiciary too performs administrative and legislative
functions. The parliament too may perform judicial functions, for example if a
president is to be impeached both houses of Parliament are to take an active
participatory role. Thus all three organs have a check and balance to each other and
work in coordination and cooperation to make our parliamentary system of
governance work properly.It is important to note that the separation of powers is
still an important guiding principle of the constitution. Most noteworthy is our
judicial system which is completely independant from the executive and the
legislature. Indian judiciary is having ample powers on sufficient grounds to
declare any law passed in a parliament as unconstitutional. Our constitution has
given judges full protection as their role is not open for discussion in parliament
and their appointment can only be made by the President in consultation with the
Chief Justice of India and the judges of the Supreme court. Judicial activism
contemplates judges assuming legislative or executive functions but does that
mean judges are stepping into the shoes of the legislature and executive? A
reference to Montesquieu’s passage in his book Separation of Powers may be
made, “Again there is no liberty, if the power of judgment be not separated from
the legislative and executive powers. Were it joined with the legislative the life and
liberty of the subject would be exposed to arbitrary control; for the judge would be
then the legislator. Were it joined to the executive power, the judge might behave
with all the violence of an oppressor. Miserable indeed would be the case, where
the same man, or the same body, whether of the nobles or of the people, to exercise
those three powers, of enacting laws, that of executing the public resolutions and
that of judging the crimes or differences of individuals.” Montesquieu’s concern
raised in the passage extends to the combination of powers exercised by all three
organs. Actually there is line of difference between when we say that there are
‘essential’ powers of one of the organs of the government and the ‘incidental’
powers of the organs. Hence, though one organ cannot seize the ‘essential’ powers
of an organ, it can exercise its powers on the ‘incidental’ powers for smooth
cooperative running and management of the nation. So one can properly
visualize the tendency of encroachment over the undertakings of other. For
example, though the judiciary has the right to judicial activism to check
legislatures which may be unconstitutional, it cannot seize any others powers
without legal authority. So we don’t have water tight compartment type of the
Separation of in our country nor been given Constitutional status but a diluted and
modern approach is followed to aid and guide our parliamentary system of
governance. Black's Law Dictionary defines judicial activism as a "philosophy of
judicial decision-making whereby judges allow their personal views about public
policy, among other factors, to guide their decision. Judicial activism refers
to judicial rulings suspected of being based on personal or political considerations
rather than on existing law. It is sometimes used as an antonym of judicial
restraint The definition of judicial activism, and which specific decisions are
activist, is a controversial political issue, particularly in the United States.

Leading cases by supreme court of India and High courts.

1. Jury decision overturned by High Court (KM Nanavati v State of

Maharashtra) - 1961

Hardly an open-and-shut case, the nature of the crime garnered media attention.
This case is notable for being the last case when a jury trial was held in India. KM
Nanavati, a naval officer, murdered his wife's lover, Prem Ahuja. The jury ruled in
favour of Nanavati and declared him "not guilty" which was eventually set aside
by the Bombay High Court.

2. Amendment masquerades as law (IC Golaknath v State of Punjab) - 1967

Parliament's prevented from taking away individual rights.

In the highly famous case of Golaknath V State of Punjab in 1967 the Supreme
Court ruled that Parliament could not curtail any of the Fundamental Rights of
individuals mentioned in the Constitution. Parliament's overarching ambitions
nipped in the bud (Keshavananda Bharti vs State of Kerala) 1973.

“The Constitution brings into existence different constitutional entities, namely, the
Union, the States and the Union Territories. It creates three major instruments of
power, namely, the Legislature, the Executive and the Judiciary. It demarcates their
jurisdiction minutely and expects them to exercise their respective powers without
overstepping their limits. They should function within the spheres allotted to
them.” Essential functions were defined in Mallikarjuna v. State of Andhra
Pradesh [AIR 1990 SC 1251], when the Andhra Pradesh Administrative Tribunal
directed the State Government “to evolve proper and rational method of
determination of seniority among the veterinary surgeons in the matters of
promotions to next higher rank of Assistant Director of Veterinary Surgeons”. The
Supreme Court quashed the aforesaid direction and observed that the power under
Article 309 of the Constitution to frame rules is the legislative power which has to
be exercised by the President or the Governor of the State as the case may be. The
High Court or Administrative Tribunals cannot issue a mandate to the State
Government to legislate on any matter. In this way the principle of restraint
prevents any organ of the State from becoming superior to another or others in
action.

3. Elected representatives cannot be given the benefit of doubt

A highly notable case which introduced the concept of "basic structure" of the
constitution of India and declared that those points decided as basic structure could
not be amended by the Parliament. The case was triggered by the 42nd
Amendment Act.

4. Beginning of the fall of Indira Gandhi (Indira Gandhi v Raj Narain) - 1975

The trigger that led to the imposition of emergency.

In this landmark case regarding election disputes, the primary issue was the
validity of clause 4 of the 39th Amendment Act. The Supreme Court held clause 4
as unconstitutional and void on the ground that it was outright denial of the right to
equality enshrined in Article 14. The Supreme Court also added the following
features as “basic features” laid down in Keshavananda Bharti case – democracy,
judicial review, rule of law and jurisdiction of Supreme Court under Article 32.

5. Yakub Memon sentenced to death (Yakub Abdul Razak Memon V State of

Maharashtra and Anr) - July 2015

No reprieve for the accused in 1993 Mumbai serial blasts.

Yakub Abdul Razak Memon was convicted and sentenced to execution by hanging
in March 2015 for his involvement in the 1993 Bombay serial blasts. His
conviction sparked a nationwide debate on capital punishment in India.

6. Dance bars functional again - October 2015

After a gap of two decades, dance bars open.

The Supreme Court in July 2013 passed a judgment directing the state government
to reopen dance bars in Maharashtra which had earlier been banned under the
Maharashtra Police Act. The resultant ban by the Bombay High Court was stayed.

WRITS:

Mandamus: Mandamus literally means ‘we command.’ It commands the person,

to whom it is addressed to perform some public or quasi-public legal duty which
she/he has refused to perform and the performance of which cannot be enforced by
any other adequate legal remedy. It is, therefore, clear that mandamus will not be
issued unless the applicant has a legal right for the performance of that particular
legal duty of a public nature and the party against whom the writ is sought, is
bound to perform that duty. It is a judicial remedy in the form of an order from a
superior court, to any government subordinate court, corporation, or public
authority—to do (or forbear from doing) some specific act which that body is
obliged under law to do (or refrain from doing)—and which is in the nature of
public duty, and in certain cases one of a statutory duty. It cannot be issued to
compel an authority to do something against statutory provision. For example, it
cannot be used to force a lower court to reject or authorize applications that have
been made, but if the court refuses to rule one way or the other then a mandamus
can be used to order the court to rule on the applications. Whenever there is a
violation of a fundamental rights by public officer who violates the fundamental
rights of a person, the court would issue writ of mandamus restraining the public
officer or the government from enforcing that order. To compel a person to
perform his public duty where the duty is imposed by the Constitution or a statute
or a statutory instrument, To compel a court or judicial tribunal to exercise its
jurisdiction when it has refused to exercise it.
Certiorari: is an extraordinary prerogative writ granted in cases that otherwis
e would not be entitled to review.

A petition for certiorari is made to a superior appellate court, which may exercise it
s discretion iaccepting a case for review, while an appeal of a case from a lower co
urt to an intermediate appellate
court, or from an intermediate appellate court to a superior appellate court, is regul
ated by statute.Appellate review of a case that is granted by the issuance of certiora
ri is sometimes called an appeal,although such review is at the discretion of the app
ellate court. The literal meaning of the word ‘certiorari’ is “to be more fully
informed of”. Though prohibition and certiorari are both issued against Courts or
tribunals exercising judicial or quasi-judicial powers, certiorari is issued to quash
the order or decision of the tribunal while prohibition is issued to prohibit the
tribunal from an ultra vires order or decision.

Quo Warranto: (Medieval Latin for "by what warrant?") is a prerogative

writ requiring the person to whom it is directed to show what authority they have
for exercising some right or power they claim to hold.Quo warranto is a
proceeding whereby the court enquires into the legality of the claim which a party
asserts to a public office, and to oust him/her from its enjoyment if the claim is
found to be fake or invalid.

The conditions necessary for the issue of a writ of quo warranto are as follows:

(i) The office must be public and it must be created by statute or by the
Constitution itself;

(ii) The office must be a substantive one and not merely the function or
employment of a servant at the will and during the pleasure of another.
(iii) There has been a contravention of the Constitution or a statute or statutory
instrument, in appointing such a person to that office.

The fundamental basis of the proceeding of quo warranto is that the public has an
interest to see that an unlawful claimant does not usurp a public office. It is,
however, a discretionary remedy that the court may grant or refuse according to the
facts, and circumstances in each case. Quo warranto is thus a very powerful
instrument for safeguarding against the usurpation of public offices.

Habeas corpus: The words ‘habeas corpus’ literally mean ‘you may have the
body’. The writ may be addressed to any person whatever, an official or a private
person who has another person in his custody and disobedience to the writ is met
with punishment for the contempt of the court. A writ of habeas corpus is known
as "the great and efficacious writ in all manner of illegal confinement", being a
remedy available to the meanest against the mightiest. A writ of habeas corpus is in
the nature of an order calling upon the person who has detained another, to produce
the latter before the Court in order to let the Court know on what ground she/ he
has been confined and to set him/her free if there is no legal justification for the
imprisonment. The different purposes for which the writ of habeas corpus can be
issued are: (a) for the enforcement of fundamental rights, (b) to decide whether the
order of imprisonment or detention is ultra vires the statute that authorises the
imprisonment or detention. But where a person has been kept in custody because
of some criminal charge or who has committed any offence as per IPC writ of
habeas carpus cannot be issued.
Prohibition: A writ of prohibition is a writ directing a subordinate to stop doing
something the law prohibits The writ of prohibition is a writ issued by the Supreme
Court or a High Court to an inferior court forbidding the latter to continue
proceedings therein in excess of its jurisdiction or to usurp a jurisdiction with
which, it is legally not vested. The writ of prohibition differs from the writ of
mandamus in the sense that while mandamus commands activity, prohibition
commands inactivity. Further, while mandamus is available not only against
judicial authorities but also against administrative authorities, prohibition as well
as certiorari are issued only against judicial or quasi-judicial authorities.