ICFAI LAW SCHOOL

ICFAI UNIVERSITY, DEHRADUN

CONSTITUTION ASSIGNMENT

TOPIC- Nature and scope of High Court powers regarding issuance of writs
under Art. 226 of Constitution.

SUBMITTED BY: SUSHALI SHRUTI SUBMITTED TO: DR. VAGISH UPADHYAY

ENROLLMENT NO: 18FLICDDNO1144 FACULTY OF LAW
BATCH: 2018-2023

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INTRODUCTION:

The High courts have a parallel power under Article 226 to enforce the fundamental rights.
Article 226 differs from Article 32 in that whereas Article 32 can be invoked only for the
enforcement of Fundamental Rights, Article 226 can be invoked not only for the enforcement of
Fundamental Rights but for any other purpose as well. This means that the Supreme Courts
power under Article 32 is restricted as compared with the power of a High Court under Article
226, for, if an administrative action does not affect a Fundamental Right, then it can be
challenged only in the High Court under Article 226, and not in the Supreme Court under Article
32. Another corollary to this difference is that a PIL (Public Interest Litigation) writ petition can
be filed in Supreme Court under Article 32 only if a question concerning the enforcement of a
fundamental right is involved. Under Article 226, a writ petition can be filed in a High court
whether or not a Fundamental Right is involved.

 Article 32 Remedies for enforcement of rights

 (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.

Article 226 Power of High Courts to issue certain rights

 (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.

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  (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 favor 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 article 32.

The provision of legal aid is fundamental to promoting access to courts. The Supreme Court of
India has taken imaginative measures to promote access to justice when people would otherwise
be denied their fundamental rights. It has done this by the twin strategy of loosening the
traditional rules of locus standi, and relaxing procedural rules in such cases. Thus where it
receives a letter addressed to it by an individual acting pro bono publico, it may treat the letter as
a writ initiating legal proceedings. In appropriate cases it has appointed commissioners or expert
bodies to undertake fact-finding investigations. Thus, the mechanism of PIL now serves a much
broader function that merely espousal of the grievances of the weak and the disadvantaged
persons. It is now being used to ventilate public grievances where the society as a whole, rather
than a specific individual, feels aggrieved.

Several sections of the constitution such as Articles 13 (Laws inconsistent with or in derogation
of the fundamental rights (are void)); 14 (Equality before law); 20 (Protection in respect of
conviction for offenses); 21 (Protection of life and personal liberty); 22 (Protection against arrest
and detention in certain cases); 38 (State to secure a social order for the promotion of welfare of
the people); 39 (Certain principles of policy to be followed by the State) have been interpreted in
conjunction with Article 32 and 226 to extend right of access to courts and judicial redress in
various matters.

Article 226 of Indian Constitution provides that every High Court shall have power, throughout
the territorial limits in relation to which it exercises jurisdiction to issue to any person or
authority including the appropriate cases, any Government, within those territories directions,
orders of writs, including writs in the nature of habeas corpus, mandamus, prohibition, qua
warranto and certiorari or any of them-
 for the enforcement of fundamental rights conferred by Constitution, and
 for any other purpose

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The writs mentioned in Article 226 of Indian Constitution are known as prerogative writs
because they had their origin in the prerogative power of superintendence over its officers and
subordinate courts.

Who can apply- The traditional rule is that a person whose constitutional or legal right is
infringed can apply for relief under “Article 226 of Indian Constitution”? But the Supreme Court
has now considerably liberalized the above rule of locus standi.

The Court now permits the public-spirited persons to file a writ petition for the enforcement of
constitutional and statutory rights of any other person or a class, if that person or a class is unable
to invoke the jurisdiction of the High Court due to poverty or any social and economic disability.

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WRITS PROVIDED:

Writ of Habeas Corpus

Habeas Corpus” is a Latin term which literally means “you may have the body”. The writ is
issued in form of an order calling upon a person by whom another person is detained to bring
that person before the Court and to let the Court know by what authority he has detained that
person.
 If the cause shown discloses that detained person has been detained illegally the Court will order
that he be released.

Thus the main object of the writ is to give quick and immediate remedy to a person who is
unlawfully detained by the person whether in prison or private custody.
Who can apply for the writ of Habeas Corpus under article 226 of Indian constitution-The
general rule is that an application can be made by a person who is illegally detained? But in
certain cases, an application of habeas corpus can be made by any person on behalf of the
prisoner, i.e., a friend or a relation.
Technicalities and legal necessities-Technicalities and legal necessities are no impediments to
the Court entertaining even an informal communication as a proceeding for habeas corpus if the
basic facts are found.

The writ of habeas corpus cannot only be used for releasing a person illegally detained but it will
be also used for protecting him from treatment inside jails. The dynamic role of judicial remedies
after  Batra’s case imparts to the  habeas corpus writ a versatile vitality and operational utility
that makes the healing presence of the law live up to its reputation as bastion of liberty even
within jails declared Krishna Iyer, J.
When it will lie.–The “writ of habeas corpus” will lie if the power of detention vested in an
authority was exercised mala fide and is made in collateral or ulterior purposes. But if the
detention is justified the High Court will not grant the writ of habeas corpus. If the following
conditions are satisfied the detention is illegal:
 If the detention is made in accordance with the procedure established by law. The law
must be valid law and the procedure must be strictly followed. (Art. 21)
 The detention is lawful if the condition laid down in Article 22 are complied with.

Writ of Mandamus under Article 226 of Indian Constitution

The word mandamus means “the order”. The “writ of mandamus” is thus an order application

for issue by a court commanding a person or a public authority ( including the government
and public corporation) to do or forbear to do something in the nature of public duty or in certain
cases of a statutory duty.
For instance, a licensing officer is under a duty to issue a license to an applicant who fulfils all
the conditions laid down for the issue of such license. But despite the fulfilment of such
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conditions if the officer or the authority concerned refuses or fails to issue the license the
aggrieved person has a right to seek the remedy with the help of article 226 of Indian
Constitution – a writ of mandamus.

When it will lie.-The writ or order in the nature of mandamus would be issued when there is a
failure to perform a mandatory duty. But even in cases of alleged breaches of mandatory duty the
party must show that he has made a distinct demand to enforce that duty and the demand was
met with refusal.
The writ of mandamus can only be granted when there is in the applicant a right to compel the
performance of some duty cast upon the authority. The duty sought to be enforced must be a
public duty, that is, duty cast by law. A private right cannot be enforced by the writ of
mandamus.
Article 226 of Indian Constitution issue writ of mandamus to public authority to restrain it from
acting under a law which has been declared unconstitutional.
The writ of mandamus can be granted only in cases where there is a statutory duty imposed upon
the officer concerned, and there is a failure on the part of that officer to discharge the statutory
obligation.

The High Courts have the power to issue a writ of mandamus where the government or a public
authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a
statute or a rule or a policy decision of the Government or has exercised such discretion mala
fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in
such a manner as to frustrate the object of conferring such discretion of the policy for
implementing such discretion.

Writ of Prohibition

A writ of prohibition is issued primarily to prevent an inferior court or tribunal from exceeding
its jurisdiction, or acting contrary to the rules of natural justice. It is issued by a Superior Court to
inferior courts for the purpose of preventing inferior Courts from usurping a jurisdiction with
which it was not legally vested, or in other words to compel inferior courts to keep within the
limits of their jurisdiction.
Thus the writ is issued in both cases where there is excess of jurisdiction and where there is
absence of jurisdiction.

Writ of Certiorari Under Article 226 of Indian Constitution

A writ of certiorari is issued by a Superior Court (Supreme Court and High Courts) to an inferior
court or body exercising judicial or quasi-judicial functions to remove a suit from such inferior

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court or body and adjudicate upon the validity of the proceedings or body exercising judicial or
quasi-judicial functions.

 It may be used before the trial to prevent an excess or abuse of jurisdiction and remove the case
for trial to higher Court. It is invoked also after trial to quash an order which has been made
without jurisdiction or in violation of the rules of natural justice.

Speaking on the scope of the writ the Supreme Court in the Province of Bombay v.
Khushaldas,held that, whenever anybody of persons having legal authority to determine
questions affecting the rights of subject and having the duty to act judicially, acts in excess of
their legal authority a writ of certiorari lies. It does not lie to remove merely ministerial act or to
remove oh cancel executive administrative acts.

Prohibition and certiorari-Distinguished

Prohibition has much in common with certiorari. Both the writs are issued with the object of
restraining the inferior courts from exceeding their jurisdiction. The difference between the two
writs was explained by the Supreme Court in the following words :

“When an inferior court takes up for hearing a matter over which it has no jurisdiction, the
person against whom the proceedings are taken can move the Supreme Court for a writ of
prohibition and on that an order will issue forbidding the inferior court from continuing the
proceedings. On the other hand, if the court hears the cause or matter and gives a decision, the
party aggrieved would have to move the Supreme Court for a writ of certiorari on that an order
will be made quashing the decision on the ground of jurisdiction.”

Grounds on which writ can be issued.–The writ of certiorari is issued to a quasi-judicial body on
the following grounds :
 Where there is want of excess of jurisdiction;
 Where there is error of law apparent on the face of the record but not error of a fact;
 Where there is violation of procedure or disregards of principles of natural justice.

In exercise of writ of certiorari– The High Court not to assume the role of Appellate Court.-In
exercising the writ of certiorari, the High Court cannot assume the role of the appellate Court.
The High Court can interfere if in recording the finding and the Tribunal/Court erroneously
refused to admit the admissible evidence or had erroneously admitted any inadmissible evidence
which-has influenced the impugned finding. A finding of fact recorded on no evidence is
regarded as an error of law which can be corrected by a writ of certiorari.

When it will not lie-The writ of certiorari cannot be issued against a private body. Co-operative
Electricity Supply Society Limited incorporated under the Cooperative Societies Act, is a private

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body and not a public body discharging public function and the writ-petition is, therefore, not
maintainable against such a private society.

Writ of Quo warranto Under Article 226 of Indian Constitution

The words ‘quo warranto’ means ‘what is your authority’. By this writ a holder of an office is
called upon to show to the court under what authority he holds the office.
The object of the writ of quo warranto is to prevent a person to hold an office which he is not
legally entitled to hold. If the inquiry leads to the finding that the holder of the office has no valid
title to it, the Court may pass an order preventing the holder to continue in office and may also
declare the office vacant.
If the holder of a public office was initially disqualified to hold that office, the writ of qua
warranto would not be issued if at a subsequent stage that disqualification was removed and after
the removal of the disqualification the incumbent concerned could have been appointed on the
same post,
The doctrine is that in cases where the initial disqualification is removed it would be open to the
authorities concerned to appoint the same person immediately even if the court grants the writ of
qua warranto as desired by the petitioner. The general principle is that the court would not pass
any decree which becomes futile.

Who can apply – A writ of qua warranto can be claimed by a person if he satisfies the Court
that :
 the office in question is a public office; and
 it is held by a person without legal authority
The writ of qua warranto is not issued in respect of an office of a private character. Thus
in Jamalpur Arya Samaj Sabha v. Dr. D. Ram, the High Court refused to issue a writ of qua
warranto against the members of the working committee of the Bihar Arya Samaj Sabha, a
private association.

A citizen can claim a writ of qua-warranto and he stands in the position of a relater. He need not
have any special interest or personal interest? The real test is to see whether the person holding
the office is authorized to hold the same as per law.

Qua warranto not issued as a matter of course– A writ of “qua warranto” is never issued as a
matter of course and it is always within the discretion of the Court to decide after having
considered the facts and circumstances of each case, whether the petitioner concerned is the
person who could be entrusted with such a writ which is always issued only in the interest of the
public in general. 
The Court may refuse to grant a writ of qua warranto if it is vexatious or where the petitioner is
guilty of laches, or where he has acquiesced or concurred in the very act against which he
complains or where the motive of the petitioner is suspicious.

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Scope of Article 226 of Indian Constitution

Speaking on the scope of this power of the High Court in T. C. Basappa v. Nagappa, the
Supreme Court held that Article 226 of Indian Constitutions couched in comprehensive
phraseology and it confers a wide power on the High Courts to remedy injustice wherever it is
found. The Constitution has purposely used wide language in describing the nature of the power,
the purpose for which and the person or authority against whom It can be exercised. It can issue
writs in the nature of prerogative writs as understood in England; but the scope of writs is
widened by the use of the expression “nature” of habeaus corpus, mandamus, prohibition and
qua warranto and certiorari, or any of them, for the enforcement of the rights conferred by Part
III and for any other purpose. The expression does not equate the writs that can be issued in India
with those in England but only draws analogy from them. Apart from that. High Courts can also
issue directions, orders or writs other than the prerogative writs. Thus Article 226 of Indian
Constitution enables the High Courts to mold the reliefs to meet the peculiar and complicated
requirement of this country.

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CASE LAWS:

L Chandra Kumar V. UOI & ORS

Mr. SN Bhuyan, learned counsel for the petitioner submitted that the petitioner has retired from
service on 31.5.97 and is no longer a member of an All India Service. The Central
Administrative Tribunal therefore does not have jurisdiction under section 14 of the
administrative tribunals act 1985 (for short the act) to decide the present dispute between the
petitioner and the respondents. He argued that even if the Central Administrative Tribunal had
jurisdiction under the Act to decide the dispute between petitioner and respondents, the High
Court also has powers under article 226 of the constitution to entertain and decide the dispute.
He explained that in the earlier case of SP Sampath Kumar vs. Union of India, AIR 1987 SC 386
the Supreme Court had held that the Tribunal constituted under the Act was riot supplemental to
the High Court but a substitute for the High Court. But in the latter case of L. Chandra Kumar vs.
Union of India, (1997) 3 SCC 261 the Supreme Court held that the Tribunal constituted under
the Act played a supplementary role to the High Court under article 226/227 of the constitution
and that the jurisdiction of the High Court under article 226/227 of the constitution was not
ousted. Mr. Bhuyan relied on the decision of the Supreme Court in the case of State of AP vs. K.
Mohanlal, (1998) 5 SCC 468 in which the Supreme Court took note of the aforesaid law laid
down in the cases of SP Sampath Kumar and L. Chandra Kumar and observed that the power of
judicial review of the decisions of the Tribunals is now expressly preserved as a basic feature of
the Constitution in the judgment of Supreme Court in the case of L. Chandra Kumar. According
to Mr. Bhuyan, therefore, even in respect of matters within the jurisdiction of the Central
Administrative Tribunal, the High Court can exercise its power under article 226 of the
constitution. He cited the decision of the Supreme Court in Kartar Singh vs. State of Punjab,
(1994) 3 SCC 569 in which it was held that if the High Court was inclined to entertain any
application in respect of a matter arising out the TADA Act, this power should be exercised most
sparingly and only in rare and appropriate cases in extreme circumstances.

K.D Sharma V. Steel Authority of India Limited & ORS

The Supreme Court in the case of K.D Sharma v. Steel Authority of India Limited, reported in
(2008) 12 SCC 481, coming down very heavily on the persons adopting such practices in the
petitions invoking extraordinary jurisdiction under Article 32 and Article 226 of the Constitution
of India, has observed as under:- 34. The jurisdiction of the Supreme Court under Article 32 and

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of the High Court under Article 226 of the Constitution is extraordinary, equitable and
discretionary. Prerogative writs mentioned therein are issued for doing substantial justice. It is,
therefore, of utmost necessity that the petitioner approaching the Writ Court must come with
clean hands, put forward all the facts before the Court without concealing or suppressing
anything and seek an appropriate relief. If there is no candid disclosure of relevant and material
facts or the petitioner is guilty of misleading the Court, his petition may be dismissed at the
threshold without considering the merits of the claim.
Sunil Batra V. Delhi Corporation
Their Lordships of Hon'ble Supreme Court in (1980) 3 SCC 488 in the case of Sunil Batra v.
Delhi, Administration. have held that protection of the prisoner within his rights is part of the
office of Article 32 and Article 226. Whether inside prison or outside, a person shall not be
deprived of his guaranteed freedom save by methods right, just and fair .

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