Project on

CONSTITUTIONAL
LAW
TOPIC: FIVE WRITS

Submitted to: Submitted by:

DR. SHRUTI JASMINE
BEDI B.A. Llb.(hons.)
Roll No. 32/13
Section- A
3rd semester
Table of contents
ACKNOWLEDGEMENT
Every project big or small is successful largely due to the effort of a number
of wonderful people who have always given their valuable advice or lent a
helping hand. I sincerely appreciate the inspiration; support and guidance of
all those people who have been instrumental in making this project a
success. At this juncture I feel deeply honored in expressing my sincere
thanks to Dr. Shruti Bedi for providing valuable insights leading to the
successful completion of my project. Last but not the least I place a deep
sense of gratitude to my family members and my friends who have
been constant source of inspiration during the preparation of this project
work.

JASMINE
B.A.Llb (SECTION A)
Roll no. 32/13
3rd Semester
 TABLE OF CASES
1. Province of Bombay v. Khusaldas S. Advani
2.Lords in Ridge v. Baldwin
3.Rafiq khan v. State of U.P.
4.Wood v. Wood
5.Dimes v. Grand Junction Canal
6.Sarva Shramik Sangh v. Indian Oil Corpn. Ltd.
7.G.D. Karkare v. T.L. Shavde
8.P.L. Lakhanpal v. Justice A.N. Ray
9.Kanu Sanyal v. District Magisterate, Darjeeling
10. Sunil Batra v. Delhi Administration
 WRITS
In common law a writ is a formal written order issued by a body with
administrative or judicial jurisdiction. Under the Indian legal system, jurisdiction
to issue 'prerogative writs is given to the Supreme Court, and to the High Courts
of Judicature of all Indian states. Parts of the law relating to writs are set forth in
the Constitution of India. The Supreme Court, the highest in the country, may issue
writs under Article 32 of the Constitution for enforcement of Fundamental Rights
and under Articles 139 for enforcement of rights other than Fundamental Rights,
while High Courts, the superior courts of the States, may issue writs under Articles
226. Constitution broadly provides the five kinds of writs.

1. WRIT OF CERTEORARI
2. WRIT OF PROHIBITION
3. WRIT OF MANDAMUS
4. WRIT OF QUO WARRANTO
5. WRIT OF HABEAS CORPUS
 1.WRIT OF CERTIORARI

The writ of certiorari is an order of he highcourt issuedto inferior courts, tribunals

or authorities to transmit to it the record of proceeding pendingwith them for
scrutiny and if necessary, for quashing the same. It consists of four components.

Any body of persons

Having legal authority
To determine the questions affectinng the ringhts of the subjects
Having the duty to act judicially

The duty to act judicially may arise in widely different circumstances and it
would me impossible to define exhaustively all of them.1 Where the decision is that
of the court , it is clearly under a duty to act judicially. When the decision is that of
the administrative body and actuated in whole or in part by questions of policy, the
duty to act judicially may arise in the course of arriving at the decision.

In Province of Bombay V. Khusaldas S. Advani2 , it was held that the decision

about the expediency or necessity of requisitioning was left to the unfettered
subjective opinionof the government and there was no judicial process involved for
determining the matter. Therefore, the decision to requisition the house of
petitioner in that case was held to be an administrative act of government.

In determining the jurisdiction of writ of certiorari, the body may satisfy the
required test,it is not enough that it should have legal authority to determine

1
HALSBURYS LAWS OF ENGLAND, Vol. 2, p. 57

2
AIR 1950 SC 222: 1950 SCR 621
questions affecting the rights of subjects; there must be superadded to the
characteristics, the further characteristics that body has the duty to act judicially.
In Lords in Ridge V. Baldwin,3 Lord Reid decided that no writ could be issued
unless the duty to act judicially was laid down by statute either expressely or
impliedly. He holds that the judicial character of the duty has to be inferred from
the nature of the duty itself and is not required to be superadded by any
provision of the law granting the power.

The writ of certiorari is discretionary; it is not issued merely because it is lawful to

do so. Grounds for issue of certiorari The writ of certiorari can be issued to a
judicial or quasi-judicial body on the following grounds

Want or excess of jurisdiction.

Violation of procedure ordisregard of principles of natural justice.
Error of law apperent on the face of the record.

Want or excess of jurisdiction

The writ of certiorari goes to a body performing judicial or quadi-judicial functions

for correcting errors of jurisdiction, as when an inferior court or tribunal acts
without jurisdiction or in excess of it or fails to exercise it.4

The want of jurisdiction may arise from the nature of the subject matter of
theproceeding, so that the inferior court had no authority to enter on the enquiry or
upon some part of it. Rafiq khan V. State of U.P.5 is illustrative on this ground.
Under Section 85 of the U.P. Panchayat Raj Act, 1947, the Sub-Divisional

3
1964 AC 40
4
State of UP v. Mohd. Nooh, AIR 1958 SC 86: 1958 SCR 595
5
AIR 1954 All
Magisterate has no jurisdiction to modify the order of conviction and sentence
passed by the Panchayati Adalat. He can either quash the entire order or cancel the
jurisdiction of the Panchayati Adalat. Where the subdivisional Magisterate
maintained the convictions of the accused in respect of one of the offences only
and quashed their conviction in respect of other offences, the Allahabad High
Court held that the order was against the provisions of Section 85 and quashed it
by a writ of certiorari.

Violation of principles of natural justice

A writ of certiorari shall be issued if the court or tribunal acts in disregard of the

principles of natural justice. The two generally accepted principles of natural

justice are.

Audi alteram pertem

Bias or interest

Audi alteram pertem (rule of fair hearing): - The principle is that both the
sides should have a full and fair hearing. Every judicial or quasi-judicial body
must give a reasonable opportunity to the parties affected to put forth their case.
No men should be condemned unheard. In Wood v Wood .6, the committee
purported to expel a member of mutual insurance society without hearing him, and
it was held that their action was void, and so he was still a member. Kelly, C.B.
said of audi alteram palterm: this rule is not confined to the conduct of strictly

6
1874 LR 9 X 190
legal tribunals, but is applicable to every tribunal or bodies of persons invested
with authority of adjudicate upon matters involving civil consequences of
individuals.

Bias or interest (rule against bias):- The other rule of natural justice is that
the judge must not have an interest or bias in the subject-matter of decision. The
principles governing the doctrine of bias are.

(i) No man shall be a judge in his own cause

(ii) Justice should not only be done but manifestly and undoubtedly seem to
be done

If a member of judicial body is, subject to wise in favour or against any party to
a dispute, or in such a position that bias must be assumed to exist, he ought not to
take part in the decision or sit on the tribunal. Any direct pecuniary interest,
however small, in the subject-matter of enquiry will disqualify a judge, and any
other interest, though not pecuniary, will have the same effect, if it is sufficiently
substantial to create a reasonable suspicion of bias. In Dimes v. Grand Junction
Canal7, a decree of Lord Cottonham was set aside on the ground that he held
shares in the company though it was not suggested that he was influenced be that
fact in his decision.

7
(1832) 3 HLC 759
Error of law

An error of law in the decision or determination itself may also be amenable to a

writ of certiorari but it must be a manifest error apparent on the face of the
proceedings, e.g., when it is based on the clear ignorance or disregard of the
provisions of law. In other words it is patent or self- evident error of law which
can be corrected by certiorari but not a mere wrong decision.8

8
T.C. Basappa v. T. Nagappa AIR 1954 SC 440
 2. WRIT OF PROHIBITION

The term prohibition means to prohibit. This writ commands the court or
tribunal to whom it is issued to refrain from doing something which it is about to
do. It prevents a tribunal processing judicial or quasi-judicial powers form
assuming or threatening to assume jurisdiction which it does not possess. It is
issued in both the cases, i.e., where there is excess of jurisdiction and where there
is want of jurisdiction.

Both judicial and quasi-judicial writs lie against a judicial or quasii-judicial body
but not against an executive body.

Writ of Prohibition is different from the writ of Certiorari i.e., When an inferior
court takes up for hearing matter over which it has no jurisdiction, the person
against whom the proceeding are taken can move the superior court for a writ of
prohibition, and on that, an order will issue forbidding the inferior court from
continuing the proceeding. On the other hand, if the court hears that case or matter
and gives a decision, the party aggrieved will have to move the superior court for a
writ of certiorari, and on that, an order will be made quashing the decision on the
ground of want of jurisdiction.

Prohibition has much in common with Certiorari. Both writs are issued with the
object of restraining the inferior courts from exceeding their jurisdiction, but they
are issued at different stages of proceedings.9

9
Hari Vishnu Kamath v. S. Ahmad Ishaque AIR 1955 SC 233
It might happen that the proceedings of an inferior courts or tribunal are partly
within and partly without jurisdiction. In that case, prohibition will lie against
doing what is in excess of jurisdiction.10

10
Sewpujanrai I. Ltd. V. Collector of Customs AIR 1958 SC 845
 3. WRIT OF 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. The essence of mandamus, in England was that it was a royal command
issued by the Kings Bench directing performance of the public duty. It is pre-
eminently a public law remedy and can be issued against private body or persons
but on for enforcement of public duty. Thus if a private body is discharging a
public function and the denial of any right is in connection with the public duty
imposed on such body, the public law remedy can be enforced. The duty cast on
that body may be either statutory and the source of such power is immaterial.

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. The writ cannot be issued on
mere askance. The petitioner must have a judicially enforceable right as well as
legally protected 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 duty and the
demand was refused.
In Sarva Shramik Sangh v. Indian Oil Corpn. Ltd.11 the state Government, after
examining the case on merit, refused to make the reference of the dispute to the
industrial adjudication on the ground that the workers were not employees of IOC.
The Apex Court, stating that the very dispute related to the questions to whether
the workers are employees of the IOC, directed the Central Government to
reconsider the matter and take appropriate decision on request for reference. The
court held that the writ of mandamus would be issued if the refusal of the app.
Government was on irrelevant, irrational or extraneous grounds or that it was mala
fide.

No mandamus can be issued based on the civil court decree, which would be in the
nature of executing or giving effect to a Civil decree and the remedy will be only
before the Civil Court. Likewise the issuance of mandamus on the basis of Civil
Court deecree, directing party to hand over possession of propety is not
permissible.

A writ of mandamus will not lie against a private person or any private
organisation, for no public duty is entrusted to it.12

However, where the state in collision with a private individual ororganisation is

contravening a constituitional provision or a Statute, the writ may be issued.
Mandamus cannot be granted to enforce an obligation arising out of a contract.

11
AIR 2009 SC 2355
12
G.B. Reddy v. I.C.R.I. , AIR 2003 SC 1764
 4.WRIT OF 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.

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
hortified his right.13

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. The writ can only be issued when the appointment is
contrary to Statutory Rules.

If 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 number of the public, whether any right of such person, has been
infringed or not.

13
Corpus Juris Secundum, 74,1.
The writ of Quo Warranto will lie if the following conditions are satisfied.

The office in question must be a public office.

The offic must be substantive in character, i.e., office independent in title. It
is therefore not applicabe to minsterial officeswho hold office at the pleasure
of the mater.
Therespondent must not e legally qualified to hold the office or to reman in
the office.

In G.D. Karkare v. T.L. Shavde,14the court issued THE WRIT OF Qou Warranto
against the Advocate-General of the State, who was found not qualified to hold
that office.

The writ will be refused if it becomes futile. In P.L. Lakhanpal v. Justice A.N.
Ray15, the petitioner challenged the appointment of Justice A.N. Ray. Who was
junior to three judges of Supreme Court, as the Chief Justice of India. Before the
court could decide the writ, the persons senior to him had resigned from office, as a
result, the respondent became the senior most Judge of the Supreme Court. The
writ was refused as it had become futile.

Like wise, where the respondent, the Chairman of the Public Corpn., against whom
the writ was filed, resigned during the pendency of the writ petition, considering
the writ petition on merits was held to be futile exercise, the qquestion raised in the
writ petition had become academic only.

14
AIR 1952 Nag 330
15
1975 Delhi 66
 5.WRIT OF HABEAS CORPUS

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

This writ is a device, requiring examination of the question of illegal detention

with utmost promptitude. It is a great and efficacious writ in all manner of illegal
confinement. The writ has been described as a writ of right which is granted ex
debito justitae. The writ has been described as a great constitutional privilage of
the Citizen or the first security of civil liberty.

The object of the writ is to give the quick and immediate remedy to a person for his
release from an unlawful detention. in a petition for Habeas Corpus, the issue
before the High Ccourt is about the validity of the detention order and the
curtailment of the personal liberty of the detenu and nothing more. The Court
cannot go through the materials as if it is as appellate Court and dismiss the
petition with costs by relying on Section 482 or Cr. P.C. and the directing the
department to institute criminal proceedings ahainst the detenu under provision of
IPC.
In Kanu Sanyal v. District Magisterate, Darjeeling16, the court ruled 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 be 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 or a relative or an
advocate of the detenu may also file an application for Habeas Corpus.

The Court doesnot insist on strict rules of pleadinf to be followed nor places undue
emphasis as to the question as to on whom the burden of proof lies. In Sunil Batra
v. Delhi Administration17, a postcard written by the detenue from jail was
converted into a writ petition for Habeas Corpus. Again, the burden of proof is to
justify detention has always been placed on the detaining authority.

This writ would lie if the detention is found to be unlawful or illegal. If the
detention is justified under law, the writ would be refused. If the detention was
unlawful at the time it was made, but writ would be refused of at te time of the
decision of the writ, the detention becomes lawful.

16
AIR 1973 SC 2684
17
AIR 1980 SC 1579
 BIBLIOGRAPHY

1. Prof. Narender Kumar, Constitution Law of India, 8th

edition-2011
2. V.N. Shukla, Constitution of India, 11th edition-2008
3. M.P. Jain, Indial Constitutional Law, vol. 1
4. www.wikipedia.org
5. www.scribd.com