Semester- II

Subject- Clinical Legal Education

Assignment on- Writ Petitions under

the Indian Constitution

Roll No.: 35

Submitted to: Dr Nisha Kushwaha Submitted by: Ravi Gupta

1
Writ Petitions under the Indian Constitution

2
3
 Index

 Introduction.....................................................................................5
 What is the need?..........................................................................5
 Growth of Writ Jurisdiction in India: Origin and
Development...................................................................................6
 Historical Development in India..............................................6
 Writs Provisions under Different Statutes and
Constitution.....................................................................................8
Writs under the Indian Constitution-............................8
The Code of Criminal Procedure, 1898.......................9
The Specific Relief Act, 1877.........................................9
The Code of Civil Procedure, 1908...............................9
 Types of writs..............................................................................10
Habeas Corpus...................................................................10
Mandamus...........................................................................13
Certiorari..............................................................................15
Writ of Prohibition...........................................................16
Writ of Quo Warranto.....................................................18
 How to file a Writ petition in court......................................20
 Conclusion....................................................................................21
 Bibliography.................................................................................22

4
Introduction
One of the terms from English Common Law is "prerogative writ." It refers to the Sovereign's
exceptional writs issued in the name of justice because usual legal remedies are insufficient.
Over time, the Sovereign's judicial powers were exercised through the High Court of Justice,
and these writs were issued as extraordinary remedies in circumstances when there was either
no remedy available under ordinary law or the remedy provided was insufficient. Habeas
Corpus, Mandamus, Prohibition, Certiorari, and Quo warranto are among the writs that can
be used. The Supreme Court of India, under Article 32, and the High Courts, under Article
226 of the Indian Constitution, have writ jurisdiction.

The writ is a constitutional remedy available to a person to bring his complaint or grievance
against any administrative action to the notice of the court. The importance of remedies
generally is reflected in the maxim ubi jus ibi remedium- where there is a right, there is a
remedy. It is axiomatic that a legal right is of little, if any, use unless accompanied by an
effective remedy. Remedies should be effective in terms of both procedure and effect, i.e the
procedure for obtaining the remedy should be clear, simple and speedy and the remedy once
granted should be suitable to protect the legal right from infringement and to compensate the
victim for such infringement.1

These writs were borrowed in India from England, where they had a long history of
development and had accumulated a lot of technicalities as a result. The power to issue writs
is primarily intended to ensure that every citizen has access to the Right to Constitutional
Remedies.

What is the need?

A writ petition is generally filed in case of violation of the fundamental rights or injustice
served to any individual/aggrieved. It is basically a remedial measure that is provided by the
constitution against the law and order regulating authority in the country for the reasons
mentioned below:
1. To help citizens protect their fundamental rights against court orders.

1
David Stott & Alexandra Felix, “Principles of Administrative Law”, Cavendish Publishing Limited, London &
Sydney, (1997) 155.
5
 2. To offer an alternative to the aggrieved in case of impugnment is not objected to by
the appeals made to the authorized higher authorities in the legal system.
3. To make sure that justice is served and not denied. 

Growth of Writ Jurisdiction in India: Origin and Development

The origin of writs took place in the English Judicial system, with the development of
English law from folk courts-moots to the formal courts of common law. The law of writs
originated from orders passed by the King’s Bench in England. The writ was precisely a royal
order, which was issued under the Royal seal. It used to be issued on a petition presented to
the king in council for the exercise of the extraordinary judicial powers in a particular matter.
In the earlier stage, the King’s court consisted of barons and high ecclesiastical with
legislative, judicial and administrative functions. However, with various phases of history, it
took different names and forms but the spirit of this extraordinary remained almost the same.2

Historical Development in India

Judicial review of administrative action is a product of English Common Law. The writ
procedure has been used in England since the thirteenth century for purposes somewhat
similar to the ends it is used for today. If a subject complained of injustice, the sovereign, the
fountain of justice, wishing to be informed of it, ordered that the record be transmitted to the
King's Bench. In the seventeenth century, it became a means of review of the newly acquired
activities of the justice of the peace. Over a period of time, this power was extended to the
review of all administrative bodies.3

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 three courts. These courts were replaced by the
High Courts in 1862 under High Courts Act, 1861. The High Court’s 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

2
Abhe Singh Yadav, “Law of Writs Jurisdiction and its Efficacy”, Universal law Publishing Company,(2009)
3
See Indian Law Institute, “Judicial Review through Writ Petition”, (1962) 3-4.
6
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, 1877.4

Writs Provisions under Different Statutes and Constitution

Writs under the Indian Constitution-

The Indian judiciary, particularly the higher judiciary, has been entrusted with important
responsibilities in areas such as upholding the federal principle, interpreting laws passed by
4
Ibid.
7
respective legislatures, determining the legality of such laws, and, most importantly,
protecting citizens' fundamental rights. The Supreme Court, as the country's highest court,
has a wide range of powers, including writ jurisdiction under Article 325 of the constitution.
The Supreme Court's authority to hear an application under Article 32 for the issuance of a
constitutional writ enforcing basic rights. It is the Supreme Court's original jurisdiction since
the party who has been wronged has the right to petition the Supreme Court directly rather
than going through a High Court.

The High Courts also have writ jurisdiction under Article 2266 of the Constitution, which is
actually wider than the Supreme Court's Article 32. The novelty of this jurisdiction is that,
because it is granted by the Constitution, it cannot be taken away or abridged by anything
other than a constitutional amendment.

As mentioned in the previous paragraph, the High Court's writ jurisdiction is wider in scope
than the Supreme Court in that, while the Supreme Court can only issue them when a
fundamental right has been violated, a High Court can issue them when an ordinary legal
right has been violated, provided that a writ is a proper remedy in such cases, according to
well-established principles. Article 226 cannot be suspended even during a national
emergency because it is not a basic right, whereas Article 32, which is a fundamental right, is
suspended during an emergency.

Unless such Constitutional remedies for its enforcement is not provided the rights guaranteed
by part III of the constitution cannot be ever implemented by the citizens. The main object of
Articles 32 and 226 is to maintain a balance between the competing interest of “personal
liberty” and “public safety” as reflected in the text of the Constitution and its subsequent
interpretation.7

The Code of Criminal Procedure, 1898

The Code of Criminal Procedure (Cr PC) 1898 empowered the High Courts in the Presidency
town to issue a writ of habeas corpus to set at liberty a person held in illegal detention.8 This
jurisdiction was also limited to the original jurisdiction of the High Court. The effect of this

5
Indian Const. Art. 32
6
Indian Const. Art. 226
7
Selvi v. State of Karnataka, AIR 2010 SC 1974.
8
Section 491, the Code of Criminal Procedure, 1898.
8
legislation was that it was no longer possible to apply for the Common Law writ of habeas
corpus.9 In 1923, the Cr PC amended to confer the power to issue writs on all High Courts.10

The Specific Relief Act, 1877

Section 45 of the Specific Relief Act, 1877 empowered the three Presidency High Courts to
make orders requiring any specific action to be done or forborne, within the local limits of
their ordinary civil jurisdiction, by any person holding a public office or by any corporation
or inferior Court. This Act deprived the High Court’s of the power to issue the common Law
writ of mandamus.11

The Code of Civil Procedure, 1908

Section 115 of the Code of Civil Procedure 1908 provided that a High Court might call for
the record of an inferior Court and if there had been the absence of jurisdiction or failure to
exercise jurisdiction or material irregularity in the exercise of jurisdiction, it could make such
orders as it thought fit. This was a provision similar to certiorari, although it did not take
away the power of the High Courts to issue a writ of certiorari. The writ jurisdiction could not
be taken away, except by express words. Thus, the provision for revisional jurisdiction of the
High Court has been retained in the CPC as amended in 1976 and the Cr PC 1973.12

Types of writs
In India, public law review is conducted through constitutional modes by way of issuing five
writs- habeas corpus, quo warranto, certiorari, prohibition and mandamus under Article 32
and 226.13

Habeas Corpus
Habeas Corpus is a prerogative writ that is a renowned contribution of the English Common
law to the protection of human liberty.14 It was granted to a subject of His Majesty, who was
detained illegally in a jail. It is an order of release. The words ‘habeas corpus ad
9
Girinder Nath v. Birendra Nath, AIR 1927 Cal 496; Mathen v. District Magistrate, AIR 1939 PC 213.
10
Section 30, The Criminal Law Amendment Act 1923 (XII of 1923).
11
Section 50, The Specific Relief Act 1877.
12
S.P.Sathe, Administrative Law, Lexis Nexis Butterworths Wadhwa, Nagpur (2006) 458-459.
13
Devinder Singh, Administrative Law, Allahabad Law Agency, Faridabad (Haryana), (2007) 218.
14
Gururaja Chari’s “Supreme Court Rules, Practice & Procedure”, Wadhwa & Company, Vol.1, First Edition
(2003), p. 196.
9
subjiciendum’ literally means that you have the body to answer. It means the writ of habeas
corpus is a process for securing the liberty of the subject by affording an effective means of
immediate release from unlawful or unjustifiable detention whether in person or in private
custody.15 It may be defined as a judicial order issued by the Supreme Court or a High Court
by which a person who is confined by any public or private agency may secure his release.
The writ in the form of order calls upon the person in whose confinement the person is to let
the court know the legal justification for the detention, and in the absence of such justification
to release the person from his confinement.

The fundamental object of the writ of habeas corpus is to the immediate determination of the
right of the detenues as to his liberty and freedom16 and to make them expeditious, to keep
them as free from technicalities as possible and to keep them as simple as possible.17 The writ
is of the highest constitutional importance being a remedy available to the lowliest subject
against the most powerful government. Its efficacy depends, to a large extent, on the
operative part of the law under which the freedom of an individual has been curtailed. The
writ has been described as a great constitutional privilege or the first security of civil liberty18
which aimed to ensure swift judicial review of alleged unlawful detention on liberty or
freedom of the prisoner or detenu.19

The writ of habeas corpus would lie against all wrongful deprivation of personal liberty.20 It
is available to the weakest against the mightiest with the only exception of prisoners of war
and the enemy alien.21 It is issued not only for release from detention by the State but also for
release from private detention. It may be issued against any person or authority who has
illegal been detained, arrested or confined or prisoner. In such circumstances, it is the duty of
the police to make necessary efforts to see that the detenu is got released but, if despite such
efforts if a person is not found, the police cannot be put under undue pressure to do
impossible.22 The remedy under habeas corpus lies against the three organs of the State
legislature, executive and judiciary, local authorities, other instrumentalities of the state, any

15
Aliya Shaim v. State, Srinagar L.J.,1999, p.311.
16
Ranjit v. Pepsu, AIR 1959 SC 843: 1959 Supp (2) SCR 727.
17
Ibid
18
Deepak Bajaj v. State of Maharashtra, AIR 2009SC 628; Vijay Kumar Karwa v. Official Liquidator, 2008 (3)
SCALE 311.
19
State of Maharashtra v. Bhaurao Punjabrao Gawande, (2008) 3 SCC 613, 624 (para 25).
20
C. Basavaraju, “The ‘Writ of Habeas Corpus’ as a Constitutional Remedy-An Analysis”, The Bangalore Law
Journal, Vol. 2 (2007-2009) 47.
21
Supra note 3 at 12.
22
Jayamma (Smt.) v. State of Karnataka. AIR 2009(NOC) 687 (kar) : 2009 (1) AIR Kar R 335 (DB).
10
administrative authority, and private persons including the company or any association of
persons. The writ was also issued when a ban was imposed on law students to conduct
interviews with prisoners for affording them legal relief.23

There is no hard and fast rule for making an application for a writ of habeas corpus under
Article 32 before the Supreme Court or under Article 226 before the High Court. An
application for habeas corpus can be made by any person on behalf of the prisoner as well as
the prisoner himself.24 The wife or the father of the detenue can bring a petition.25 In view of
the growth of PIL, the rule of locus standi stands further relaxed. Habeas corpus is available
even against private persons,26 to the wife against the husband,27 or for the custody of minor
children if they are illegally detained.28

Who can file the writ petition?

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, ie, a Friend or a Relatives. A writ of habeas corpus, also known as the "great writ",
is a summons with the force of a court order; it is addressed to the custodian (a prison official
for example) and demands that a prisoner be taken before the court and that the custodian
present proof of authority, allowing the court to determine whether the custodian has lawful
authority to detain the prisoner. If the custodian is acting beyond his authority, then the
prisoner must be released. Any prisoner, or another person acting on his or her behalf, may
petition the court, or a judge, for a writ of habeas corpus. One reason for the writ to be sought
by a person other than the prisoner is that the detainee might be held incommunicado. Habeas
corpus has certain limitations. It is technically only a procedural remedy; it is a guarantee
against any detention that is forbidden by law, but it does not necessarily protect other rights,
such as the entitlement to a fair trial.

When it will lie

23
Mohammad Ghouse, “Constitutional Law”, (1980) XVI ASIL 193-94.
24
Charanjit Lal v. Union of India, AIR 1951 SC 41.
25
Sundarajan v. India, AIR 1970 Del 29.
26
Dushyant Somal v. Sushma Somal, AIR 1981 SC 1026: (1981) 2 SCC 277.
27
Veena Kapur (Dr) v. Varinder Kumar, AIR 1982 SC 792.
28
Afzal v. Haryana (1994) 1 SCC 425; Elizabeth Dinshaw v. Arvand M Dinshaw (1987) 1 SCC 42:AIR 1987
SC 3; Mohd Ikram Hussain v. Uttar Pradesh, AIR 1964 SC 1625.
11
The writ of habeas corpus will lie if the power of detention vested in 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. In Sunil Bhatra V/S Delhi
Administration29 it has been held that the writ of habeas corpus can be issued not only for
releasing a person from illegal detention but also for protecting prisoners from the inhuman
and barbarous treatment. the dynamic role of judicial remedies imports to the habeas corpus
writ a versatile vitality and operational utility as a bastion of liberty even within jails.
In Veena Sethi V/S State Of Bihar[2]30 In this case, it was held that the court was informed
through a letter that some prisoners, who were insane at the time of trial but subsequently
declared sane, were not released due to inaction of state authorities and had to remain in jails
from 20 to 30 years. the court directed they be released forthwith. In D.S Nakara v/s Union of
India31 in this case, it was held that registered societies, non-political, non-profit making and
voluntary organizations are entitled to file a writ petition ie, habeas corpus under article 32 of
the constitution for espousing the cause for the large number of old infirm pensioners who are
unable to approach the court individually. We command you, that the body of A.B. in Our
prison under your custody detained, as it is said, together with the day and cause of his taking
and detention, by whatever name the said A.B. may be known therein, you have at our
Court ... to undergo and to receive that which our Court shall then and there consider and
order in that behalf. Hereof in no way fail, at your peril. And have you then there this writ.
The habeas writ was used in the Rajan case, a student victim of torture in local police custody
during the nationwide Emergency in India in 1976. On 12th March 2014, Subrata Roy's
counsel approached the Chief Justice moving a habeas corpus petition. It was also filed by
Panthers Party to protest the imprisonment of Anna Hazare, a social activist.

Mandamus
The writ of Mandamus is regarded as one of the highest remedies in the Indian judicial
System which literally means ‘command’. It is in the form of specific orders from the
Supreme Court or High Court to the inferior court, tribunal, a board, corporation or any
administrative authority, or a person requiring the performance of a specific duty fixed by
law or associated with the office occupied by the person.32
29
 AIR 1980 SC 1795
30
AIR 1983 SC 339
31
1983 1 SCC 304
32
Kabul Singh v. Niranjan Singh, AIR 1958 Punj 168.
12
In the modern era, the mandamus is also called a wakening call. It awakens the sleeping
authority to perform their duty. It demands activity and sets the authority in action.33 The
function of the mandamus is to keep the public authorities within the limits of their
jurisdiction while exercising public functions. It can be issued to any kind of authority in
respect of any type of function-administrative, legislative, judicial and quasi-judicial.

The main object of mandamus is to prevent the disorder from the failure of justice and is
required to be granted in all cases where the law has established no specific remedy and
whether justice despite demanded has not been granted.34 It normally issues only when an
officer or an authority by compulsion of the statute is required to perform a duty and which
despite demand in writing has not been performed. Under this writ, duties to be performed
may be directory or mandatory. If intended to be mandatory, the duties are indicated by the
use of the words “shall”, “must” and if not compelling the word used is more often than not
“may”. But, in all circumstances, the character of duties must depend on the interpretation of
the relevant law or statute.35

The writ of mandamus can be issued to the following:

(i) The three organs of the Government-legislature, executive and judiciary

(ii) Local authorities and instrumentalities of government. But it will not be issued
against the President or the Governor of a State for the exercise of powers and
performance of duties.36 It will not lie against the State legislature to prevent from
considering enacting a law alleged to be violative of Constitutional provisions. 37 It
will also not lie against an inferior or ministerial officer who is bound to obey the
orders of his Superior.38

Mandamus can be issued on all those grounds on which certiorari and prohibition can be
issued. It can be issued on the following grounds39:

(i) The error of jurisdiction-it includes an excess of jurisdiction and lack of

jurisdiction.

33
Types of writs in the Constitution of India, 10th March 2013, available on www.gktoday/types-of-writs-in-
the-constitution-of-india/. Visited on 3.5.13 at 12.40.pm.
34
Union of india v. S.B. Vohra, AIR 2004 SC 1402.
35
Mansukh Lal Vithal Das v. State of Gujarat, AIR 1997 SC 340.
36
Article 361, Constitution of India.
37
Narinder Chand v. Lt. Governor, Union Territory of H.P., AIR 1971 Sc 2399.
38
Halsbury’s Law of England, 2nd Edn, Vol. 9. p.763.
39
J.J.R. Upadhaya, Administrative Law, Central Law Publication (2001) 240.
13
 (ii) Jurisdictional facts
(iii) Violation of the principles of natural justice
(iv) The error of law apparent on the face of the record
(v) Abuse of jurisdiction

Cases Related to the Writ of Mandamus

Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav
Smarak Trust and Ors. v. V. R. R Udani and Ors40

The court held that it is not necessary that the duty is imposed by statute, mandamus may
apply even in cases where the duty is imposed by common law or custom. The ambit of the
mandamus is very wide, and it must be available when an injustice has occurred. It should not
be bogged down with too many technicalities.

State of West Bengal v. Nuruddin41

Supreme Court held the writ of mandamus is a personal action where the respondent has not
done the duty they were prescribed to do by law. The performance of the duty is the right of
the applicant.

Kerr v. United States District Court42

The Court upheld the denial of a writ of mandamus sought by prison officials to prevent the
district court from compelling them to turn over personnel and inmate files to seven prisoners
who had sued the prison over alleged constitutional violations. The officials argued that
turning over the records would compromise prison communications and confidentiality.

Certiorari
Certiorari is an extraordinary common law remedy of ancient origin. It is not a writ of right
but one of discretion. It is a Latin word that means “to certify”. It is in a form of judicial order
issued to the lower judicial authority by the High Court or Supreme Court to show the record

40
1989 AIR 1607
41
(1998) 8 SCC 143

42
426 U.S. 394 (1976)
14
 of proceeding ‘pending with’ such lower judicial authority for scrutiny and if necessary for
quashing the same. The main object of a writ of certiorari is to bring up the records of an
inferior Court, an administrative tribunal or other administrative body discharging some
quasi-judicial function, for examination before the higher judiciary so that it may be certified
by a higher judiciary that works and acts of the lower courts or tribunals does not exceed the
limits of jurisdiction fixed by law.

A writ of Certiorari lies against judicial or quasi-judicial authorities but will not issue against
a civil court, though it can issue against a tribunal. 43 The jurisdiction of the High Court to
issue a writ of certiorari is a supervisory jurisdiction and the court exercising it is not entitled
to act as an appellate court. It means that the finding of facts reached by the tribunals as a
result of the appreciation of evidence cannot be reopened or questioned in writ proceedings.
In regard to a finding of fact by a tribunal, a writ of certiorari can be issued if it is shown that
in arriving at such a finding, the tribunal had erroneously admitted inadmissible evidence,
which had influenced the impugned finding. Similarly, if a finding of fact is based on no
evidence that would be regarded as an error of law which can be corrected by certiorari. 44 The
writ is not issued against bodies like a court of inquiry entrusted with the work of merely
carrying out the investigation into a charge against employees and submitting a report to an
officer in the Ministry of Defence, Government of India.45

Cases Related to the Writ of Certiorari

Hari Vishnu Kamath v. Ahmad Ishaque46

This case lays down the scope and grounds of filing the writ.

1. When there is an error of jurisdiction.

2. When the court has not given the proper time for both parties to be heard or has violated
principles of natural justice.
3. This writ is supervisory in nature, and thus the High court cannot review the findings of the
lower courts.
4. If the error is evident.

Province of Bombay v/s Khushaldas47

43
RJ Fouzar Bus Service, Hoshangabad v. State, AIR 1994 MP 122.
44
Syed Yakoob v. Radhakrishnan, AIR 1964 SC 477, 479, per Gajendragadkar J.
45
A.K.Moittra v. Defence Ministry, AIR 1956 All 312.
46
AIR 1955 SC 233
47
1950 AIR 222
15
In this case, it was held that whenever anybody of a person having legal authority to
determine questions affecting the rights of subjects and having the duty to act judicially acts
in excess of their legal authority, a writ of certiorari will lie. It does not lie to remove merely
ministerial acts or to remove or cancel executive administrative acts.

Writ of Prohibition
Writ of prohibition means to forbid or to stop and it is popularly known as ‘Stay Order’.48 It is
in the nature a preventive writ with a view to an injunct or prevents order against a Court or
tribunal. It literally means to prohibit the lower Court or tribunal. It is a command by the
Superior Court to inferior courts and tribunals to refrain from doing what it is about to do. It
prevents them from assuming jurisdiction which is not vested in him. The term "inferior
courts" comprehends special tribunals, commissions, magistrates and officers who exercise
judicial powers, affecting the property or rights of the citizen and act in a summary way or in
a new course different from the common law. 49 In India, prohibition is issued to protect the
individual from arbitrary administrative actions.

Prohibition can be issued on the same grounds on which certiorari can be issued except in one
ground the error of law apparent on the face of the record. The grounds for the issue of
prohibition are as following50:

(i) Lack or excess of jurisdiction.

(ii) Violation of principles of natural justice.
(iii) Infringement of fundamental rights.
(iv) Fraud
(v) Contravention of the law of the land.

In Thirumala Tirupati Devasthanamas v. Thallappaka Anantha Charyulu,51 it was

held that a writ of Prohibition is normally issued when an inferior court or tribunal

(i) proceeds to act without jurisdiction or in excess of jurisdiction

(ii) proceeds to act in violation of the rules of natural justice or

48
Constitutional Remedy under Articles 32 and 226 of the Constitution of India, available on
www.lexvidhi.com/article-details/constitutional remedy-under-Article-32-and-226-of-the-constitution-of-India-
422-html. visited on 13.8.15 at 1.59 pm.
49
Arvind kumar, Short essay on the writ of prohibition, available on www.preservearticles.com/2011111216899/
Short-essay-on- the- writ- of –prohibition.html, visited on 13.8.15 at 11.42am
50
Asstt. Collector, Central Excise v. National Tabacco Co., (1972) 2 SCC 56: AIR 1972 SC 2563.
51
(2003) 8 SCC 134: AIR 2003 SC 3290, para 14.
16
 (iii) proceeds to act under a law which is itself ultra vires or unconstitutional,
(iv) proceeds to act in contravention of fundamental rights

Cases Related to the Writ of prohibition

East India Commercial Co. Ltd v. Collector of Customs52

It was held that a writ of prohibition is an order directed to an inferior Tribunal forbidding it
from continuing with a proceeding therein on the ground that the proceeding is without or in
excess of jurisdiction or contrary to the laws of the land, statutory or otherwise.

S. Govind Menon Vs. Union Of India53

Prohibition is not a continuation of the proceedings to be prohibited. Its object is on the

contrary to arrest the inferior tribunal's proceedings. It is a collateral matter progress
essentially between the two tribunals, an inferior one and another superior one by which the
latter, by virtue of its power of superintendence over the former, restrains it within its rightful
competence. Its nature is held to depend upon the nature of proceeding to be prohibited.

Calcutta Discount Co. Ltd. v. ITO54

Supreme Court held that when a subordinate court or tribunal is shown decisively that they
have acted in excess of their jurisdiction, the court will issue a writ of prohibition regardless
of whether there exists an alternative remedy or not.

Writ of Quo Warranto

The word quo warranto means what is your authority. It is a judicial order against a person
who occupies a substantive public office without any legal authority. In other words, the writ
calls upon the holder of a public office to show to the court under what authority he is
holding the office in question.55 It is a very effective method of judicial control that reviews
the actions of the administrative authority which appointed the person. It gives the judiciary a
weapon to control the executive, the legislature, statutory and non-statutory bodies in matters

52
1962 AIR 1893
53
1967 AIR 1274
54
1961 AIR 372
55
B.R.Kapur v. State of T.N., (2001) 7 SCC 231: AIR 2001 SC 3435, para 79.
17
of appointments to public offices. Conversely, it protects a citizen from being deprived of a
public office to which he has a right.56

Any member of the public can seek the remedy of quo warranto even if he is not personally
aggrieved or interested in the matter.57 He may be a stranger. In Satish Chander Sharma v.
University of Rajasthan,58 it was held that a registered graduate of a university could
challenge the election of a person to the syndicate though he was neither a voter for the
election nor a candidate. In the same manner, a Citizen has a right to move the High Court for
quo warranto against a chief minister who is occupying the post unauthorized.59

The writ of quo warranto will not be issued if there is an alternative legal remedy provided by
the statute. Where the constitution or any statute provides that a specific question of law is to
be decided by a tribunal, the higher judiciary cannot assume jurisdiction to issue the quo
warranto. This writ does not lie for quashing the order for the creation of the post before the
incumbent was appointed.60

In the end, it is concluded that under Article 32 of the constitution, Supreme Court has the
power to issue prerogative writs in the nature of habeas corpus, mandamus, prohibition,
certiorari and quo warranto for the protection of fundamental right enshrined in part III of the
Indian Constitution have been given to the citizens to get the justice in time. This remedy also
exists in the form of Art.226 of the Constitution for filing a writ in the High Court concerned
which does not prevent or place any bar on an aggrieved person to directly approach the
Supreme Court under Article 32 of the Constitution. In India for the protection of the
fundamental rights of citizens, effective Constitutional machinery is needed. The procedure
for filing the writs should be clear, simple and speedy so that people will be able to get justice
in time. Today, the Supreme Court, High Courts and the ordinary courts are overburdened
with appeals and litigations. To lessen their burden, more and more administrative tribunals
should be established as an alternative forum by which the disputes or grievances of the
peoples could be settled expeditiously and economically.

Cases Related to the Writ of Quo Warranto

56
I.P.Massey, Administrative Law, Eastern Book Company, Lucknow (2008) 416.
57
G. Venkateswara Rao v. Govt. of A.P., AIR 1966 SC 828.
58
AIR 1970 Raj 184.
59
Purushottam Lal v. State, AIR 1979 Raj 18.
60
D.D.Sahu v. Jatinder k.Mishra, (1998) 7 SCC 273.
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Jamalpur Arya Samaj Sabha v/s Dr. D. Ram61

In this case, it was held that the high court refused to issue a writ Quo Warranto against the
members of the working committee on the Bihar Arya Samaj Sabha, a private association.
The meaning of the term Quo Warranto is ‘by what authority. The writ of quo warranto may
be issued against a person holding a public office or governmental privilege.

University of Mysore v. Govinda Rao62

The Supreme Court observed that the procedure of quo Warranto confers the jurisdiction and
authority on the judiciary to control executive action in making the appointments to public
offices against the relevant statutory provisions; it also protects a citizen being deprived of
public office to which he may have a right.

How to file a Writ petition in court

The following steps need to be followed in order to file a writ petition-

1. A lawyer must be approached with the necessary documents. The documents are
necessary to draft the writ petition.

2. The drafting must take place as per the prescribed procedure and format of High
Court and Supreme Court as the case maybe. It has to be accompanied by all
necessary documents annexed therein and must properly indicate the law points and
violation of fundamental rights involved.

3. The draft is then taken to the court and submitted at the filing counter. The writ
petition may also be filed via e-filing through the website of the respective High court
or Supreme Court as the case may be.

4. The writ is then presented before the bench of the court for hearing. The court hears
the advocates for the petitioners. If the court finds that there is no basis for it to
exercise writ jurisdiction, it dismisses the petition.

61
AIR 1954 Pat. 297
62
1965 AIR 491
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 5. On the other hand, if the court is satisfied that there is a prima facie issue involved in
the petition, it sends notice or “Rule Nisi” to the respondents who are then called upon
to answer why the writ should not be allowed.

6. This “Rule Nisi” amounts to an admission of the writ petition.

Conclusion
According to article 21 of the Indian constitution, no person shall be deprived of his life or
personal liberty except according to procedure established by law. As a result, administrative
law has greatly demarcated the permissible area of an exercise of power, authority and
jurisdiction over administrative actions enforced by and state and government agencies.
Indian Constitution guarantees fundamental rights, but merely providing the rights is not
sufficient, it is essential that these rights should be protected and enforced as well. So, to
protect these rights the Constitution has provided for the writ remedies enforceable by the
High Court and the Supreme Court. It is the award of compensation as part of relief granted
to the accused or affected person.

Constitutional provisions Article 32 and Article 226 of the Constitution provide two separate
but parallel provisions of writ jurisdiction with the Supreme Court and High Courts
respectively. Article 32 has been incorporated as a fundamental right and it provides for the
constitutional remedy against the violation of fundamental rights. This remedy is limited to
the violation of fundamental rights only under Article 32. A Close scrutiny of the contents of

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Article 32 would reveal that it gives a new force to the contents of fundamental rights as
enshrined in Chapter III of the constitution. The Supreme Court is not empowered to refuse to
hear the writ petition on any ground whatsoever it is. However, the relief would flow from
the merits of the writ petition filed in this regard. The guarantee stands in the form of the
right to move the Supreme Court by way writ petition.

Bibliography

1. www.lexvidhi.com/article-details/constitutionalremedy-under-Article-32-and-226-of-
the-constitution-of-India-422-html.
2. Halsbury’s Law of England, 2nd Edn, Vol. 9

3. J.J.R. Upadhaya, Administrative Law

4. Constitution of India
5. Arvind Kumar, Short essay on the writ of prohibition, available on
www.preservearticles.com/2011111216899/ Short-essay-on- the- writ- of –
prohibition.html,
6. Devinder Singh, Administrative Law
7. Gururaja Chari’s “Supreme Court Rules, Practice & Procedure”,
8. Indian Law Institute, “Judicial Review through Writ Petition
9. David Stott & Alexandra Felix, “Principles of Administrative Law
10. Abhe Singh Yadav, “Law of Writs Jurisdiction and its Efficacy”,

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11. Blog iPleaders
12. Mondaq
13. Manupatra
14. SCC Online
15. JSTOR
16. Finology Legal

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