Dr.

Ram Manohar Lohiya

National Law University
Lucknow

Basics of Case Law

Final Draft
Writs under High Court

Submitted under supervision of

Shashank Shekhar (Astt. Professor)

Submitted by
Shreepath Jain
168
Semester I

Contents

1. List of abbreviations
2. Table of cases
3. Preface
4. Mandamus
5. Habeas Corpus
6. Certiorari
7. Quo Warranto
8. Prohibition
9. Conclusion
10.

Bibliography

]
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List of abbreviations
v. Versus
AIR All India Reporter
SCC Supreme Court Cases
Dist. District
&
And
Mad Madras
IT
Income Tax

Table of cases

Anna Mathew v. N. Kannadasan, Chennai High Court

dwarka nath v. income tax officer ,Special Circle, D ward Kanpur AIR 1966 SC 81

Hari Vishnu Kamath v. Ahmad Ishaque 1955-I S 1104 : ((s) AIR 1955 SC 233)

Kanu Sanyal v. Dist. Magistrate, Darjeeling, 1974 SCR (3) 279

Minneapolis star & tribune co. v. Schumacher NO. C8-86-65.

Mohammad Ikram v. State of UP AIR 1964 SC 1625, paras 12,13.

Prabodh verma v. State of Uttar PradeshAIR 1985 SC 167 para 31

Ramayya v. state of madras,AIR 1952 Mad 300.

Satyanarayanamurthi v. IT appellate Madras bench, AIR 1957AP 123

Sheela Barse v. State of Maharashtra, JT 1988 (3) 15

Sheela Barse v. State of Maharashtra, JT 1988 (3) 15

The Comptroller and Auditor General of India, Gian Prakash, New Delhi and another
v. K.S. Jagannathan and another (AIR 1987 SC 537)

Preface
First we will have a brief look at what prerogative writs are?
Prerogative writs are so named because they are issued by virtue of the crowns prerogative or
entitlement.

The common law regards the sovereign as a source or fountain of justice and certain ancient
remedial processes of an extra ordinary nature, known as prerogative writs have from the
earliest times, issued from the Court of Kings bench, in which the sovereign was always
present in contemplation of la.1

The purposes conferred on the 24 high courts of India is divided into two categories i.e.
enforcement of fundamental rights and the second being other miscellaneous purposes.
Jurisdiction of these high courts under article 226 is vaguely described as writ jurisdiction.

This jurisdiction of the said high courts should not be confused with appellate or revisional
jurisdiction. In a landmark case Ramayya v state of madras2 the honorable bench decided and
further stated that the power to issue writs is the original jurisdiction of high courts. In a case
in Andhra high court, the bench stated it to be an extra ordinary original jurisdiction.3

By going in to the history of the high courts in India and the power to issue writs under its
jurisdiction, we can easily assimilate that initially it was possessed by the three chartered
courts of Delhi, Bombay and Madras. The manner and procedure that is being followed till
now has been given a legal sanctity by the makers of the constitution. They proposed and
recommended it for all high courts that might come up later and further inserted article
226,227 and 228 in the constitution also putting them beyond the legislative reach of the
parliament and the state legislatures.

Prabodh verma v. State of Uttar PradeshAIR 1985 SC 167 para 31

Ramayya v. state of madras,AIR 1952 Mad 300.
3 Satyanarayanamurthi v. IT appellate Madras bench, AIR 1957AP 123
2

Wherever there is a matter of fundamental rights being violated or for that matter any act
committed against someone, which is out of the purview of legality under the statutes of the
state, the high court can intervene to provide justice.

As a matter of fact the Supreme Court of India in a case stated:

High court is to reach justice wherever it is found.4

Article 226 provides a public law remedy to a person who is aggrieved by any prejudicial
governmental action or decision. The jurisdiction conferred on the high court under art 226 is
very wide. Apart from enforcement of fundamental rights we will try to establish the fact that
high courts in India can issue necessary order and directions for the purposes other than the
enforcement of fundamental rights also. 5 In general, the term other purposes would mean
judicial review or declaring statutory provisions.

We will be covering the five writs under the high courts, their history, prominent cases and
the effects that these cases have had on the society.

4
5

dwarka nath v. income tax officer ,Special Circle, D ward Kanpur AIR 1966 SC 81
Mohammad Ikram v. State of UP AIR 1964 SC 1625, paras 12,13.

Mandamus
It is most useful jurisdiction which enables this Court to set right mistakes.
-Channell, J
Mandamus means a command. It is issued in favour of a person who establishes his legal
rights and against a person who has a legal duty but has failed to perform it. Here are some
key points regarding remedy of writ of mandamus:

1. Petitioner must possess a legal right.

2. Relief prayed for must have been demanded and refused (or not considered within
reasonable time) before filing of writ petition.
3 Normally writ cannot be issued against a private person.
4. Respondent must have statutory duty to perform.
5. Mandamus cannot be issued to comply the administrative instructions or departmental
orders.
6. Mandamus cannot be issued to enforce contractual obligations.
7. Mandamus cannot be issued in violation of statutory provisions.
8. Mandamus cannot be issued to Legislature or Government to make laws or rules.
9. When an application is pending since long, mandamus can be issued to concerned
authority to decide the same.
The bench in a landmark case6 stated purpose of writ of mandamus
Justice may be done, in all cases where there is a specific legal right and no specific legal
remedy for enforcing that right, and it may issue in cases where, although there is an
alternative legal remedy yet that mode of redress is less convenient beneficial and effectual.

The Comptroller and Auditor General of India, Gian Prakash, New Delhi and another v. K.S. Jagannathan
and another (AIR 1987 SC 537)
6

Certiorari
Certiorari is a writ issued from a superior court to an inferior court or tribunal commanding
the latter to send up the record of a particular case. The underlying policy is that all inferior
courts and authorities have only limited jurisdiction or powers and must be kept within their
legal bounds.

The principles on which the writ of certiorari is issued are well settled. The following
four propositions were laid down in a benchmark case7 in India. These are:

1) Certiorari will be issued for correcting errors of jurisdiction;

(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of
its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to
be heard, or violates the principles of natural justice;

(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate
jurisdiction. One consequence of this is that the court will not review findings of fact reached
by the inferior court or tribunal, even if they be erroneous.

(4) An error in the decision or determination itself may also be amenable to a writ of
certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is
based on clear ignorance or disregard of the provisions of law. In other words, it is a patent
error that can be corrected by certiorari but not a mere wrong decision.

Certiorari jurisdiction though available is not to be exercised as a matter of course. The High
Court would be justified in refusing the writ of certiorari if no failure of justice has been
occasioned. The procedure ordinarily followed by the High Court is to command the inferior
court or tribunal to certify its record or proceedings to the High Court for its inspection so as
to enable the High Court to determine whether on the face of the record the inferior court has
committed any of the preceding errors occasioning failure of justice.
7

Hari Vishnu Kamath v. Ahmad Ishaque 1955-I S 1104 : ((s) AIR 1955 SC 233)

Quo Warranto
It is a writ calling upon a person to show by what authority ha claims to an office, franchise
or liberty. It is regarded as an appropriate and adequate remedy to determine rights or title to
a public office and to oust one who has unlawfully usurped or intruded into such office. The
writ affords a judicial inquiry into such matters. However, quo warranto cannot be claimed as
a matter of right in the sense that the court is not bound to grant the relief prayed for, but
if the validity of an appointment or a claim to an office by a person is challenged by a
applicant for a writ and the court is satisfied that the writ has been presented by bona fide, is
without improper delay, it has the right to investigate the matter and decide on the validity of
the appointment.

In India, in an appropriate case, a High Court can issue a writ of quo warranto even though
there is no prayer to that effect in the writ petition.

A writ of quo warranto is issued against a holder of a public office to show under what
authority the person concerned holds such public office. It is a judicial remedy against an
intruder or usurper of such public office that raises the question to such person "where is your
warrant of appointment by which you are holding this office?" In Corpus Juris Secundum,
"Quo

warranto"

is

defined

as:

"Quo warranto is a proceeding to determine the right to the exercise of a franchise or office
and to oust the holder if his claim is not well founded, or if he has forfeited his right." 8

In Halsbury's Laws of England, the scope of quo warranto has been explained thus:

"An information in the nature of quo warranto took the place of the obsolete writ of quo
warranto which lay against a person who claimed or usurped an office, franchise or liberty, to
enquire by what authority he supported his claim, in order that the right to the office or
franchise might be determined."

Anna Mathew v. N. Kannadasan, Chennai High Court

Habeas corpus
The concept of writ essentially originated in England and to issue appropriate writ was
always considered to be a prerogative of the crown. One of such important prerogative writs
originated in England is known as the writ of habeas corpus.

The writ of habeas corpus has always been looked upon as an effective means to ensure
release of the detained person from the prison. It must be emphasized that the primary
purpose of the writ is and was to inquire into the legality of the detention. However, even
when writ of habeas corpus is issued, it does not automatically exonerate the detained person
from liability. It merely ensures his release from the prison and it does not have any bearing
on his guilt or otherwise.

The judiciary while going one step further, has also dispensed with strict rules of pleadings.
-The Supreme Court opined that while dealing with a petition9 for writ of habeas corpus, the
court may examine the legality of the detention without requiring the person detained to be
produced before it.
-The apex court in a prominent case10 held that if the detained person is unable to pray for the
writ of habeas corpus, someone else may pray for such writ on his behalf.

In this manner, writ of habeas corpus has been used effectively by the judiciary for protecting
personal liberty by securing the release of a person from illegal custody.

Kanu Sanyal v. Dist. Magistrate, Darjeeling, 1974 SCR (3) 279

10

Sheela Barse v. State of Maharashtra, JT 1988 (3) 15

Prohibition
A writ of prohibition is issued primarily to prevent an inferior court from exceeding its
jurisdiction, or acting contrary to the rule of natural justice, for example, to restrain a Judge
from hearing a case in which he is personally interested.

The writ can be issued only when the proceedings are pending in a court if the proceeding has
matured into decision, writ will not lie.

The Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'.
This writ is issued when a lower court or a body tries to transgress the limits or powers vested
in it. Any High Court or the Supreme Court issues the writ of prohibition to any inferior
court, or quasi-judicial body prohibiting the latter from continuing the proceedings in a
particular case, where it has no jurisdiction to try. After the issue of this writ, proceedings in
the lower court etc. come to a stop.
There are three requirements for a writ to be granted11

-Inferior court must be about to exercise judicial powers

-Such power must be unauthorized by law
-Must result in an injury with no adequate remedy

11

Minneapolis star & tribune co. v. Schumacher NO. C8-86-65.

392 N.W.2d 197 (1986)

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Conclusion
The writ jurisdiction of the High Court under Article 226 of the Constitution of India is a
very effective and powerful remedy available in law. Amongst various powers available to
the High Court under the above-mentioned Articles is power to correct the error committed
by the courts subordinate to the High Court. It is however necessary that it must be clearly
understood as to when could the scope of High Court be successfully invoked in exercising
its jurisdiction. The Article 226 empowers High Courts to issue directions, orders or writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Such
directions, orders or writs may be issued for the enforcement of fundamental rights or for any
other purpose. It is well established that the remedy provided for in Article 226 of the
Constitution of India is a discretionary remedy and the High Court has always the discretion
to refuse to grant such a relief in certain circumstances even though a legal right might have
been infringed. Availability of an alternative remedy is one of such considerations which the
High Court may take into account to refuse to exercise its jurisdiction, but this principle does
not apply to the enforcement of fundamental rights either under Article 32 or under Article
226 of the Constitution.

The Court where the impugned order, not patently erroneous, is made by an authority within
his jurisdiction will not ordinarily issue a writ. However, where the defect of jurisdiction is
apparent on the face of the proceedings, or there is an abuse of power, a writ of prohibition or
other appropriate writ or order will be issued despite some delay in filing the petition or the
existence of an alternative remedy, eg the right of appeal.
Likewise, the existence of an alternative remedy is not an absolute bar to the issue of a writ of
certiorari; and a writ of mandamus would not be refused merely because the assessee could
have filed a suit. A writ of prohibition or mandamus may be issued to restrain recovery
proceedings in pursuance of an assessment order made without or in excess of jurisdiction,
even if such a plea as to jurisdiction was not raised in the assessment proceedings.

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Bibliography
Books-

Writs and Other Constitutional Remedies, Asim Pandya.

Introduction to Indian constitution, D.D.Basu

Websites-

http://indiankanoon.org/

http://www.legallyindia.com/

www.manupatra.com

https://scconline.co.in/

Articles referred-

http://www.indianexpress.com/

Case reporters-

Supreme Court Cases

All India Reporters

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