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Protection of Fundamental Rights through Writ Jurisdiction: a Critical Study

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Protection of Fundamental Rights through Writ Jurisdiction: a Critical Study
Debabrata Basu1
Abstract
Since the inception of the Constitution of India, law of writ is a strong bludgeon provided
to the citizen of India to minimize or to cure inequality arisen out of the government
action. The main aspect of this writ jurisdiction through Articles 32 and 226 is to protect
the fundamental as well as legal rights of the citizen of India. Writ is the basic structure
of the Constitution which cannot be amended. There is a lack of knowledge and
awareness about the basic fundamental rights of the citizens, they even not concern about
their rights and duties. Everyone is equal in the eyes of law and no one should be
deprived of their rights on the ground of race, caste, sex, place of birth, religion as well
as should not be discriminated on the above ground2.
Key Words: Law, Writ, Fundamental right, Inequality, Government action.
I. Introduction:
Our founding fathers after a close study of the various Constitutions of the world realized
that the aspirations of the people are to be reflected in the constitution3. The term “Writ”
has not been defined anywhere in the Constitution of India though etymologically the
word means a written order issued under seal, in the name of a sovereign or the
government or by the court of law or any other authority or body having the power of
commanding an officer to whom the writ has been issued to do or not to do something.
According to common law, writ is just a formal written order issued by a body having
sovereign administrative or judicial power within the jurisdiction. Writ means a precept
which is mandatory, issued by the concerned authority having proper power to issue it,
the main purpose of compelling the defendant to do particular thing therein captioned.
There are five kinds of writ namely Habeas corpus (you may have the body), Mandamus
(we command), Prohibition (prohibition of proceeding), Certiorari (to be certified), Quo
Warranto (what is your authority?). Habeas corpus lies to release a person who has been
detained unlawfully. Mandamus lies to secure the duties of public authority to do.

1
Assistant Professor of Law, West Bengal Education Service (W.B.E.S), Hooghly Mohsin College,
Government of West Bengal, Chinsurah, District- Hooghly, West Bengal, Pin-712101. Mob--7890545876.
2
Jain Prof. M.P,(2008) Indian Constitutional law, Nagpur.
3
Pandey Dr. J.N, (2007) Constitutional Law of India, central law Agency.

1
Prohibition lies to prohibit an inferior court from continuing the proceeding in a
particular case where it has no jurisdiction to try. Certiorari lies to quash the order already
passed by an inferior court, tribunal or quasi judicial authority. Quo warranto lies to
restrain a person from holding a public office which he is not entitled to hold.
II. Historical Perspective of Writ Jurisdiction4:
In British Law, an original writ is a letter which is mandatory, issuing through the
Hon’ble Court.5In older days, it was a written order to someone to do some act and for
the purpose of elections for the House of Representatives or State Governors, writs were
used by the medieval British Kings to issue summon to person of the Parliament6. The
origin of writs took place in the English judicial system. The law of writs originated from
orders passed by the King’s Bench in England.7 The US Constitution assumed the
existence of the prerogative writs of English Common Law and except in national
emergency all prerogative writs were enforceable by the American Courts and only the
writ of habeas corpus could be suspended during the national emergencies.
III. Various kinds of Writs:
a. Habeas Corpus:
This prerogative writ is the most valuable contribution of the British Common Law for
the protection of the human liberty as a whole. The writ has become a means of testing
the legality of detention. It is described by May as “the first security of civil liberty”.8
Julius Stone described it as a picturesque writ with an extraordinary scope and flexibility

4
Silky Bhattacharyya presented her Dissertation topic on this subject to the Department of Law, the
University of Burdwan for her LL.M studies.
5
Halsbury’s Laws of England, (4th edn), Vol. 11, para 1452, p. 768.
6
Halsbury’s Laws of England, (4th edn), Vol. 11, para 1452, p. 768.
7
https://shodhganga.inflibnet.ac.in/bitstream/10603/132538/5/05_chapter%202.pdf
“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 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.”
8
Constitutional History of England, (1912), vol. II, p. 130 cited in A.D.M., Jabalpur vs Shivakant Shukla,
(1976) 2 SCC 521 (652) : AIR 1976 SC 1207: (1976) Supp SCR 172.

2
of application”.9 Habeas corpus is a Latin term which means “you must have the body”.
According to Blackstone10 “It is a writ antecedent to statute, and throwing its root deep
into the genus of our common law. It is perhaps the most important writ known to the
constitutional law of England, affording as it does a swift and imperative remedy in all
cases of illegal restraint or confinement. It is of immemorial antiquity, an instance of its
use occurring in the thirty third year of Edwards I.”
b. Mandamus:
This writ is highly prerogative at the most remedial in nature. It is a royal command
issued in the name of the Crown from the Court of King’s Bench, ordering the
performance of a public legal duty. According to Bowen, LJ,“by Magna Carta the Crown
is bound neither to deny justice to anybody, nor to delay anybody in obtaining justice.”11
The Constitution of India under Article 32 and 226 empowers the Supreme Court and all
High Courts to issue writ of mandamus to appropriate authority. Mandamus can be
invoked against any public authority. According to Halsbury’s Law of England, it is most
extensive remedy.12 Mandamus is an appropriate and the most suitable remedy to compel
a court, corporation, tribunal to exercise jurisdiction. The general rule of mandamus is to
grant of an order, which is the matter of the discretion of the court. However, neither
mandamus granted as of right nor it issued as a matter of course. For the ends of justice
the Learned Court, if there is no specific remedy prescribed, issues mandamus.13 In a
leading case ‘Praga Tools Corporation vs C.A. Imanual,’14 the Hon’ble Supreme Court
has observed that an order in the form of command to a person, Corporation or inferior

9
Social Dimensions of Laws and Justice , (1966), p. 203 cited in A.D.M., Jabalpur vs Shivakant Shukla,.
10
Halsbury’s Laws of England, (4th edn), Vol. 11, para 1452, p. 768.
11
Nathan, Re, (1884) 12 QBD 468.
12
Halsbury’s Laws of England, (4th edn), Vol. 1, para 89, p. 111.
The Order of Mandamus is of a most extensive remedial nature, and is in form, a command issuing from
the High Court of Justice, directed to any person, corporation or inferior Tribunal, requiring him or them to
do some particular thing therein specified which appertains to his or their office and is in the nature of
public duty. Its purpose is to supply defects of Justice; and it will issue to the end that Justice may be done,
in all cases where there is a specific legal rights and no specific legal remedy for enforcing such right and it
may issue in cases where although there is an alternative legal remedy, yet such mode of redress is less
convenient, beneficial and effectual.
13
Halsbury’s Laws of England, (4th edn), Vol. 1, para 91, p. 112. State of Kerala vs Lakshmikutty, 1986 4
SCC 632(654)
14
(1969) 1 SCC 585 (589); AIR 1969 SC 1306

3
Tribunal is to be considered as mandamus. According to Lord Mansfield, it is very
important writ to prevent failure of justice.15
c. Prohibition:
This writ is issued against the Judicial and Quasi Judicial authorities where such
authorities wrongly exercised the jurisdiction or exceeded their jurisdiction. This writ is
directed to the inferior or subordinate Court forbidding that court to continue proceedings
in excess of that Courts jurisdiction.16 According to Black Stone,17 “a prohibition is a writ
directed to the Judge of any inferior Court, commanding him to cease from prosecuting
thereof, upon a suggestion that either the cause originally or some collateral matter
arising therein, does not belong to that jurisdiction, but to cognizance of some other Court
or if, in handling matters clearly within his cognizance, he transgresses the bounds
prescribed to him by the laws of England.” Writ of prohibition has been given by both
under Article 32 and 226 of the Constitution of India. In the case of ‘East India Co. Ltd.
Vs. Collector of Customs’18 it was stated that the Supreme Court or any High court
directs to any subordinate Court or any Tribunal prohibiting from proceeding pertaining
to the matter regarding which that lower Court/Tribunal has no such jurisdiction. In
Govinda Menon vs. Union of India19, the Supreme Court has observed that the
jurisdiction for grant of a writ of prohibition is primarily supervisory and the object of
that writ is to restrain courts or inferior Tribunals from exercising a jurisdiction which
they do not possess at all or else to prevent them from exceeding the limits of their
jurisdiction. In other words, the object is to confine Courts or Tribunals of inferior or
limited jurisdiction within their bounds.
d. Certiorari:

15
(1762) 3 Burr 1265 (1267) : 16 Digest 315 ; cited by Wade : Administrative Law, (1988) p. 651.
In ‘R vs. Barker’ the Lord Mansfield has said that “it was introduced to prevent disorder from a failure of
justice, and defects of police. Therefore it ought to be used upon all occasions where the law has
established no specific remedy, and where in justice and good government there ought to be one. The value
of matter, or the degree of its importance to the public police, is not scrupulously weighed. If there be a
right and no other specific remedy this should not be denied. Writs of mandamus have been granted to
admit lecturers, and attorney to practice in an inferior Court, etc.”
16
East Indian Commercial Co. vs. Collector of Customs AIR 1962 SC 1893.
17
Comm, III; pp. 111-12
18
East India Commercial Co. Ltd. Vs. Collector of Customs AIR 1962 SC, AIR 1962 SC 1893: (1963) 3
SCR 338.
19
AIR 1967 SC 1274 (1277); (1967) 2 SCR 566.

4
It means to certify. An order of certiorari is an order directing the subordinate tribunal to
transfer the record to be dealt with there. In Basappa vs Nagappa, the Supreme Court has
observed that as is well known the issue of prerogative writs, within which certiorari is
included, had their origin in England in the King’s prerogative power of superintendence
over the due observance of by his officials and tribunals. The writ of Certiorari is so
named because in its original form it required that the King should be ‘Certified of’ the
proceedings to be investigated and the object was to secure by the authority of a superior
court that the jurisdiction of the inferior tribunal should be properly exercised.20
e. Quo Warranto:
This writ can be issued against the holder of a Government office to know that under
what authority he holds the office. If the holder has no proper authority to posses the
office, he should be ousted from holding the position21. Edward I, used this writ to
prevent encroach on his rights and prerogatives. This writ is a remedy which is used to
try the civil rights to public office. It confers jurisdiction on the Hon’ble Supreme Court
under Article 3222 and Hon’ble High Court under Article 22623 of the Constitution of
India to issue this writ.

20
AIR 1954 SC 440; (1955) 1 SCR 250.
21
University of Mysore vs. Govinda Rao, (1964) 4 SCR 575: AIR 1965 SC 491(494)
22
Article 32 of the Constitution provided that: -
“Article 32 Remedies for enforcement of rights conferred by this part:
The right to move the Supreme Court by appropriate proceedings for the enforcement of rights conferred
by this part is guaranteed.
The Supreme Court shall have power to issue directions or orders or writs in the nature of habeas corpus,
mandamus, prohibition, quo warrant and certiorari, which ever may be appropriate, for the enforcement of
any of the rights conferred by this part.
Without prejudice to the powers conferred on the Supreme Court by Clause (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).
The right guaranteed by this Article shall not be suspended except as otherwise provided by this
constitution.”
23
Observation of Writs through the Article 226 of the Indian Constitution:-
“Article 226 Power of High Courts to issue certain writs —
(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, quo warranto and certiorari,
or any of them for the enforcement of any of the right conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs in any government, authority or
person may be exercised by any High Court exercising jurisdiction in relation to the territories within 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 or in any proceedings relating to petition under clause (1) without—

5
IV. Scope of Writ Petition:
The Framers of our Constitution have decided to retain the concepts of prerogative writ
as such in its nature in broad parameter with keeping in view the hope and aspirations of
the people. Fundamental rights are concurrent which is enforceable either Article 32 or
Article 226. If any person wishes to approach before the Hon’ble Supreme Court instead
of High Court for violation of fundamental rights then it is obligatory for the Supreme
Court to intervene into matter as because the Supreme Court has been made the guarantor
of the fundamental rights. Therefore the choice lies on the victim either to go the
Supreme Court or to go to the High Court for enforcement of fundamental rights. The
High Court can interfere not only violation of the fundamental rights but also violation of
legal rights.
V. Procedure for filling Writ before Hon’ble High Court24:
Admission is a necessary procedure for adjudication of writ jurisdiction. It is a stage,
which entertains the writs for hearing on merits. After the writ is admitted, the court
proceeds for its appropriate adjudication on merits. When a writ petition is filed under
Article 226 of the constitution, it has to be framed according to the prescribed procedure
as mentioned in the respective Rules for filling writ along with all necessary documents
properly indicating the law points involved. After due scrutiny of the writ and after
getting the technical defects, if any, cured at the level of the registry, the writ is placed
before Division Bench of the Hon’ble High Court for Motion hearing. The court hears the
petitioner/his advocate at this stage and after hearing the petitioner, forms a prima facie
view regarding the writ petition. If the Court is of the view that, there is no reason to
exercise writ jurisdiction then the Court would dismiss the writ petition at this

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim
order; and 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 the 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 the period, before the
expiry of 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 Article 32.”
24
Supra note 4.

6
preliminary stage. If the Court is satisfied that there is a prima facie issue involved in the
petition which requires the exercise of writ jurisdiction of the High Court, the Court may
issue notice or Rule Nisi to the respondents to show cause, why the writ may not be
allowed and the Rule may be made absolute. After motion hearing when the writ is
admitted; it is normally shifted to the single judge for disposal. This issuance of ‘Rule
Nisi’ amounts to admission of writ for hearing. Once the rule is issued, the respondents
file the written statement in response to such notice or the rule and after the pleadings of
the parties are complete, it is followed by arguments leading to the disposal of the writ
petition. As soon as the notice of motion or rule Nisi is issued by the court after
preliminary hearing, the writ petition stands admitted as per the procedural rules of the
High Court. The Supreme Court has jurisdiction to hear appeal arising from any Order or
Judgment passed by a High Court under Articles 133/134 read with Article 134A or
Article 136.
VI. Data Analysis through Table, columns, pie diagram25:
Table 1: Opinion given by common people at Chinsurah

Question Questions put to the Respondents Answers in %

Number (Total No. of Respondents: 20)
YES NO
1. Do you heard about Constitution of India? 90 10

2. Do you heard about Writ Petition? 70 30

3. Do you know where Writ Petition is to be filled? 55 45

4. Do you know why writ petition is to be filled? 55 45

5. Do you know about fundamental rights? 90 10

25
Field survey by the author.
This study is partly empirical and partly doctrinal. In Doctrinal part, two types of reference have been used
i.e. primary sources and secondary sources. Primary sources consist of statute and legislations and
secondary sources are books, journals, articles. In Empirical part, the primary data has been obtained by
field survey from common people to assess the knowledge of common people with respect to the present
study. The sample of 40 persons were taken up and interviewed. For empirical study the author adopted
field survey method for data collection from selected areas by means of interview through close ended
questionnaires. Accordingly 20 common people were interviewed, who were resident of Chinsurah sub-
division under Hooghly District of West Bengal and 20 common people were interviewed, who were
resident of Barrackpore sub-division under 24 PGS(N) District of West Bengal. The information has been
collected on stratified random sampling method. The data obtained through the field survey is processed
and presented in tables, columns, pie diagrams for deriving conclusions. Simple statistical tools like
percentages, is used for deriving inferences and conclusions.

7
 6. Do you think that the existing law is adequate to handle issue? 30 70

7. Do you know where you will file a petition in case of violation 55 45

of Your fundamental rights or legal rights?
No. Of Male Respondent: 12 No. Of Female Respondent: 08

From 21-30 years: 04 From 21-30 years: 02

Ag Ag
e From 31-40 years: 03 e From 31-40 years: 04
wi From 41-50 years: 02 wis From 41-50 years: 01
se- e-
M Fe
ale From 50 and above years: 03 mal From 50 and above years: 01
e

Table 2: Opinion given by common people at Barrackpore

Question Questions put to the Respondents Answers in %

Number (Total No. of Respondents: 20)
YES NO
1. Do you heard about Constitution of India? 85 15

2. Do you heard about Writ Petition? 75 25

3. Do you know where Writ Petition is to be filled? 50 50

4. Do you know why writ petition is to be filled? 45 55

5. Do you know about fundamental rights? 85 15

6. Do you think that the existing law is adequate to handle issue? 40 60

7. Do you know where you will file a petition in case of violation 45 55

of Your fundamental rights or legal rights?
No. Of Male Respondent: 09 No. Of Female Respondent: 11

From 21-30 years: 03 From 21-30 years: 04

Ag Ag
e From 31-40 years: 03 e From 31-40 years: 03
wi From 41-50 years: 01 wis From 41-50 years: 03
se- e-
M Fe
ale From 50 and above years: 02 mal From 50 and above years: 01
e

8
Column No. 1
100
p
e 80 question 1
r question 2
c 60
question 3
e
40
n question 4
t 20 question 5
a
question 6
g 0
e Chinsurah Barrackpore question 7
Positive response to specific question nombers as asked in Tables

Column No. 2
4.5
4
Number of Participants

3.5
3
2.5 21-30
2
1.5 31-40
1 41-50
0.5
50 & above
0
Chinsurah male Chinsurah female Barrackpore Barrackpore
male female
Age wise male female participants

Column No. 3
6
Number of Participants

5
4
3 10th Standard
2 12ve Standard
1
Graduation
0
Master Degree
Education male Education Education male Education
Chinsurah female Barrackpore female
Chinsurah Barrackpore
Education level of male female participants

9
 Pie diagram No. 1 Pie diagram No. 2

Male female Male female

respondent at respondent at
Chinsurah Barrackpore

Male Male

Female Female

Line No. 1
40
35
Number of Participants

30
25
20
15 Positive response in
numbers
10
Negative response in
5 numbers
0

Response given by the participants w.r.t questions numbers asked in Tables 1

& 2. Total number of participants are 40 within the study area.

VII. Conclusion and suggestions:

There is a lack of knowledge and awareness about the basic fundamental rights of the
citizens, they even not concern about their rights and duties. Therefore, the basic
awareness is highly required in this regard. Writ jurisdiction (also include PIL) makes the
rights effective to the people. It is the strongest remedial action against the Government
Authority. The heavy traffic of litigation on a narrow track of justice has almost created a
jam from where going back and forth both have become tedious. The first and foremost

10
 step in this regard is the enhancement in the effective strength of judges. The Supreme
Court has been continuously stressing this necessity in various judgments delivered from
time to time26.The second level of operation may be in the form of filling up the
vacancies as sanctioned for additional judges in all the High Courts. For increasing
pressure on the High Court is the lengthy process of civil courts and if the efficiency of
the lower judiciary is improved, it may reduce some pressure on the High Courts.
Another factor to improve the justice delivery system is the will and priority of the
Government.
BIBLIOGRAPHY
Books:
1. Pandey Dr. J.N, (2007) Constitutional Law of India, central law Agency.
2. Jain Prof. M.P,(2008) Indian Constitutional law, Nagpur.
3. Kumar Prof.Narendra, (2007),Constituttional Law of India, Allahabad Law Agency.
4.Basu, Durga Das,(2002) Introduction to the Constitution of India, Wadhwa and Company law
Publishers.
5.Bakshi,P.M,(2002) The Constitution of India, Universal law Publishing
6. SEERVAI, H.M. “The Constitutional Law of India”, Universal Law Publishing Co. Pvt. Ltd.
7. V.G. RAMACHANDRAN’S, “Law of Writs” Eastern Book Company.
8. V.N. SHUKLA, “ Constitution of India”, EBC (Estern Book Company)
9. JUSTICE B.P. BANERJEE, “Writ Remidies”, LexisNexis.
10. P. Ishwara Bhat, Law & Social Transformation, Eastern Book Company, Lucknow, Reprinted
2012.
Journals:
1. Administrator
2. All India Reporters
3. Allahabad Law Journal
4. Andhra Law Times
5. Amity Law Review
6. Banaras Law Journal
7. Cuttack Law Times
8. Chotanagpur Law Journal

26
SP Gupta v. Union of India, AIR 1982 SC at page 208.
“The strength of the High Courts has been increased from time to time. In doing this, however, the post
constitutional developments which have been thrown a much heavier burden on the High Courts have, in
our view, not been adequately taken into account. To expect the existing number of judges in the various
High Courts to deal efficiently with the vastly increased volume of work is, in our opinion, to ask them to
attempt the impossible. As pointed out to us by a senior counsel, if there is a congestion on the roads due to
an increase in traffic, the remedy is not to blame the traffic but to wider the roads”

11

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