INSTITUTE OF LAW

NIRMA UNIVERSITY

B.A L.L. B (HONS.)

IX Semester

LAW OF WRITS

TITLE

COMPARATIVE STUDY ON WRIT JURISDICTION IN INDIA AND THE UK

Submitted To: Submitted By:

Prof. Shriya Bhojwani Saurabh Gupta (19bal102)

1
 Contents

TITLE...............................................................................................................................................3
STATEMENT OF PROBLEM..............................................................................................................4
REVIEW OF LITERATURE...............................................................................................................6
RESEARCH OBJECTIVE...................................................................................................................9
RESEARCH HYPOTHESIS...............................................................................................................10
METHODOLOGY............................................................................................................................11
I. Introduction.................................................................................................................13
II. Origin and evolution of writs.................................................................................17
III. How UK influenced India (with respect to writs and writ jurisdiction)................19
IV. Conclusion: Present Day Scenario.........................................................................20
REFERENCES.................................................................................................................................22

2
 TITLE

A COMPARATIVE STUDY ON WRIT JURISDICTION IN INDIA AND THE UK

INTRODUCTION

A swift remedy against violations of rights and injustices can be achieved through the use of
writs. Writs play a crucial role in the justice delivery system by enabling those who have
suffered infringements of their fundamental rights to directly approach higher authorities. In the
Indian context, the authority to exercise writ jurisdiction is vested in the various High Courts
(under Article 226) and the Supreme Court (under Article 32) as per the Indian Constitution. The
origin of the concept of writs can be traced back to the United Kingdom. This study aims to
explore the state of writ jurisdiction in both India and the UK, tracing its historical roots to the
contemporary landscape. Additionally, it seeks to analyze the extent to which India has been
influenced by the UK in this regard, as well as the development of this concept in both nations.
The paper is organized into four sections. The first section provides an introduction to the
concepts under consideration. The second section delves into the origins and evolution of writs
and writ jurisdiction. The third section examines the influence of the UK on India in this context.
Lastly, the fourth and final section presents an overview of the current state of writ jurisdiction in
both countries and offers concluding remarks from the research scholar.

3
 STATEMENT OF PROBLEM

he concept of writ jurisdiction, rooted in common law traditions, plays a pivotal role in the legal
systems of both India and the United Kingdom (UK). However, despite sharing a historical
connection, these two jurisdictions have evolved independently, leading to significant disparities
in the application and scope of writ remedies. This study aims to address the following
fundamental issues and disparities in writ jurisdiction:

1. Legal Framework and Historical Development: There is a need to comprehensively

examine the historical development and legal framework of writ jurisdiction in India and
the UK. Understanding the origins and evolution of writ remedies in these jurisdictions is
essential for appreciating their current status and functionality.

2. Scope and Applicability: A comparative analysis of the scope and applicability of writ
remedies in India and the UK is essential. This encompasses a study of the types of writs
available, the grounds for filing writ petitions, and the breadth of issues that fall within
the purview of writ jurisdiction.

3. Judicial Interpretation: The diverse jurisprudential interpretations by Indian and UK

courts on writ jurisdiction require meticulous examination. It is vital to explore how
judicial decisions have shaped the contours of writ remedies and their effectiveness in
safeguarding fundamental rights.

4. Procedural Aspects: The procedural aspects surrounding writ petitions, such as filing
requirements, timelines, and the role of legal practitioners, need to be critically analyzed
in both jurisdictions. Understanding these procedural nuances is crucial for assessing the
accessibility and effectiveness of writ remedies.

5. Impact on Fundamental Rights: A key concern in this comparative study is the extent
to which writ remedies serve as a mechanism for protecting and enforcing fundamental
rights. Evaluating their role in upholding constitutional liberties and ensuring the rule of
law is imperative.

6. Challenges and Limitations: Identifying and analyzing the challenges and limitations
faced by individuals seeking redress through writ jurisdiction is vital. These challenges
may include delays in adjudication, costs, and issues related to enforcement.

4
7. Relevance in Contemporary Context: Assessing the contemporary relevance of writ
jurisdiction in both India and the UK, particularly in light of evolving legal and societal
dynamics, is essential. This entails examining whether the existing framework is
adaptable to address emerging challenges.

8. Potential for Cross-Jurisdictional Learning: This study will explore whether there are
any best practices or lessons that India and the UK can draw from each other's
experiences with writ jurisdiction, with a view to enhancing the effectiveness of this legal
remedy.

5
 REVIEW OF LITERATURE

1. Prakhar Chauhan & Raghuveer Nath, The Dilution of Article 32 Convenience

over Right, 7 GNLU L. REV. 71 (2020)

Since it gives citizens the inherent right to petition the Supreme Court for the enforcement of
their fundamental rights, Article 32 of the Indian Constitution has long been recognized as the
core of constitutional remedies. Recent events, meanwhile, have prompted worries about the
potential weakening of this critical provision. The essay "The Dilution of Article 32:
Convenience over Right," written by Prakhar Chauhan and Raghuveer Nath and published in the
GNLU Law Review in 2020, focuses at the changing environment of Article 32 and considers its
effects. This evaluation of the relevant literature tries to critically evaluate the main claims,
conclusions, and contributions of this essay while situating it within the larger debate on India's
constitution and basic rights.

The paper by Chauhan and Nath begins with a summary of paper 32 and its historical importance
in defending basic rights in India. The analysis then moves on to recent legal decisions and
legislative changes that have sparked controversy about Article 32's limitations on access to the
Supreme Court. The authors contend that the original aim of Article 32 has been compromised as
a result of administrative ease and efficiency taking precedent above the protection of basic
rights.

2. Christopher Forsyth and Nitish Upadhyaya, The Development of Prerogative

Writs in England and India: Student becomes the Master? 23 NSLI REV. 77-85
(2011).

A comparison of the development of prerogative writs in England and India is provided in the
essay "The Development of Prerogative Writs in England and India: Student Becomes the
Master?" by Christopher Forsyth and Nitish Upadhyaya, which was published in the New South
Wales Law Review in 2011. The evolution of administrative law and the defense of individual
rights have been greatly aided by prerogative writs, which have their origins in English common
law. While placing it within the larger framework of administrative law and legal evolution in
both countries, this literature review seeks to critically analyze the main claims, conclusions, and
contributions of this study.

6
The essay by Forsyth and Upadhyaya provides a thorough comparative examination of the
development over time and current use of prerogative writs in India and England. The historical
development of prerogative writs under English common law and their introduction to India
under colonial authority are among the major issues covered. The authors examine the evolution
and modification of these writs in the post-colonial environment of India, highlighting how
Indian courts broadened their purview to deal with administrative issues. The idea of legal
transplanting is another major issue, asking if India, formerly a receiver of English legal
concepts, has now mastered the use and development of prerogative writs. The essay highlights
India's distinctive contributions to the creation of this important legal instrument while
underlining the effect of English legal concepts on Indian administrative law. Overall, it offers
insightful information on the processes of legal development and communication between these
two legal systems.

3. Nirmalendu Bikash Rakshit, Right to Constitutional Remedy – Significance of

Article 32, 34 ECONOMIC AND POLITICAL WEEKLY. 2379-2381 (1999).

Nirmalendu The significance of Article 32 of the Indian Constitution is critically examined in an

article by Bikash Rakshit titled "Right to Constitutional Remedy - Significance of Article 32,"
which was published in the Economic and Political Weekly in 1999. Citizens have a basic right
to seek redress when their rights are violated under Article 32, which is sometimes referred to as
the "heart and soul" of the Constitution. In order to contextualize Rakshit's paper within the
larger discussion on constitutional law and access to justice in India, this literature review tries to
study and evaluate its main points, conclusions, and contributions.

The first section of Rakshit's paper looks at the meaning and historical context of paper 32.
Following that, it explores the practical ramifications of this clause, especially as they relate to
protecting people's rights in India. The author contends that Article 32 is a crucial instrument for
securing the enforcement of basic rights by highlighting the changing interpretations and court
precedents linked to it.

7
 RESEARCH OBJECTIVE

1. Conduct a comparative analysis of the jurisdiction of writs in India and the United Kingdom.

2. Examine the historical development of writ jurisdiction in both nations.

3. Analyze the legal frameworks governing the jurisdiction of writs in India and the UK.

4. Investigate the various types of writs available and their specific functions within each
jurisdiction.

5. Evaluate the practical application of writ remedies in safeguarding individual rights.

6. Assess the impact of writ jurisdiction on the operational dynamics of the legal systems in
India and the UK.

7. Identify similarities and differences in the utilization of writs within these two jurisdictions.

8. Explore case studies and landmark decisions that exemplify the efficacy of writ remedies.

9. Provide insights for legal practitioners, policymakers, and scholars specializing in

constitutional law and judicial review.

10. Offer recommendations for potential reforms or enhancements in the jurisdiction of writs
based on the comparative analysis.

8
 RESEARCH HYPOTHESIS

1. There are important distinctions and parallels between the writ jurisdictions in India and the
UK based on history and law.
2. The impact of the availability and use of certain writs, such habeas corpus or mandamus, on
defending individual rights would differ across the two countries.
3. The establishment and use of writ jurisdiction will be significantly shaped by the cultural,
political, and historical settings of India and the UK.
4. Depending on the legal and procedural quirks of each jurisdiction, the efficacy of writ
remedies in protecting basic rights will vary.
5. Comparative consideration of a few case studies will show how, in India and the UK, the use
of writs has changed and developed in response to current issues.
6. The availability of alternative legal remedies and their accessibility may have an impact on the
frequency and success of writ petitions in both nations.
7. The purpose and importance of writ jurisdiction will be impacted by differences in the form
and operation of the legal systems, particularly the court.
8. Studying writ jurisdiction in India and the UK from a comparative perspective would provide
important insights for enhancing the protection of individual rights and the effectiveness of
judicial review in a variety of legal circumstances.
9. Based on the observed variances and the lessons acquired from the comparison study, changes
or reforms in writ jurisdiction procedures may be advised.

9
 METHODOLOGY

Data Collection:

 Legal Texts Analysis: Thoroughly examine and analyze relevant legal texts, including
constitutional provisions, statutes, and case law, related to writ jurisdiction in both
countries.
 Documentary Analysis: Review historical documents, legal commentaries, and
scholarly articles to understand the historical evolution and scholarly discourse on writ
jurisdiction.
 Case Study Analysis: Select and analyze a set of significant case studies from both
jurisdictions to illustrate the practical application and impact of writ remedies.
 Interviews and Surveys: Conduct interviews with legal experts, practitioners, and
scholars in India and the UK to gather insights into the practical aspects of writ
jurisdiction.

Data Analysis:

 Comparative Analysis: Compare the legal frameworks, historical evolution, and

practical applications of writ jurisdiction in India and the UK.

 Content Analysis: Apply content analysis techniques to extract meaningful patterns and
themes from legal texts and documents.

 Qualitative Coding: Analyze interview data through qualitative coding to identify

common themes and perspectives on writ jurisdiction.

10
 RESEARCH QUESTIONS

1. What are the key differences and similarities in the constitutional provisions and legal statutes
governing writ jurisdiction in India and the UK?
2. How do the legal definitions and classifications of writs in India and the UK differ, and what
implications do these differences have for the protection of individual rights?
3. What are the primary objectives and functions of writ remedies in each jurisdiction, and how
effectively do they safeguard fundamental rights and uphold the rule of law?
4. What role does the judiciary play in interpreting and applying writ jurisdiction in India and
the UK, and how does this impact the practical outcomes of writ petitions?
5. How has the historical and cultural context of each country influenced the evolution and use
of writ jurisdiction as a means of judicial review?
6. What are the significant landmark cases that have shaped the jurisprudence of writ jurisdiction
in India and the UK, and what lessons can be drawn from these cases?

11
 I. INTRODUCTION

Prerogative writs, as they have been referred to since they were first used in England, are a
specific form of tool that are used to provide relief to persons who have been wronged and
somehow resemble or relate to a system of public law. A "prerogative" is defined as "an
exclusive right, privilege, right, etc., exercised by virtue of rank, office, or similarity." This
explains why writs were referred to as "prerogative writs" in England because only the Crown
(King or Queen) had the power to issue them and use them for their designated purposes. These
remedies were formerly only used to resolve governmental issues or problems, but the Crown
now makes use of them to provide justice to the people of the country. This suggests that they
were exclusively distributed by the Crown for use by government agents in their activities. Only
the Crown had access to it; the rest of the subjects (citizens) were excluded. The scope of this
treatment's use was not expanded until later developments made it widely accessible.

These remedies were made available to all litigants regardless of their occupation, social
standing, or position in society or the government because the Crown wanted to ensure that the
state has an accountable and legal government. These were superior in that they (at least initially)
represented the direct order of the Crown, which was also final or supreme in nature. There were
undoubtedly other ways for people to approach the Crown or court institutions to seek remedy.
The ease with which even government offices and officials might be held accountable under
these remedies played a significant role in their success.

There were six prerogative writs available at the time of their creation: Procedendo, Habeas
Corpus, Certiorari, Prohibition, Mandamus, and Quo Warranto. Let's take a closer look at them.

Procedendo, which was once in use but is no longer recognized, is also known as Procedendo ad
judicium. It was mostly used to direct a lower court to perform or refrain from performing
particular tasks. Without particularly naming or describing what or how it should be done in such
a case, a higher or appellate court would direct the lower court to proceed with the rendering of
such judgment. This often occurred when a court abstained from rendering a decision that it
should have. If judges violated these orders, they would be penalized and maybe found in
contempt of court. Most of the times this remedy or writ was used, there was judge neglect
involved.

12
Habeas corpus is one of the most important writs, both in the UK, where it was first used as a
prerogative writ, and everywhere else it has been adopted, including India. Latin for "having the
body" is habeas corpus. The lengthy Latin phrase or expression habes corpus ad subjiciendu is
where it originates. It means that the court has asked for the body of the detainee to be brought
before it. This writ is essential in assisting those who have been wrongfully detained or
imprisoned in regaining their freedom. It is essential because it ensures that any prisoner who is
detained without a valid defense or supporting documentation will be quickly released. As a
result of the fact that it addressed a person's right to freedom of movement straight away, it is
one of the most useful and important writs. The court has issued this directive or order to decide
whether the person's detention is proper.

Whether or not it was permitted. It provides relief from unfair captivity. A summons is the order
that details how to present the arrested individual in court. This remedy may be requested by the
prisoner or detainee themselves or by a third party on their behalf in the case that they are unable
to do so for themselves. This petition may be submitted to the Supreme Court of India as well as
the High Courts of India.

The courts are highly reachable and accessible because there is no particular structure of
pleadings that must be followed when filing a petition for this writ (as in other cases usually
done). Icchu Devi v. Union of India 1 established that even something as casual as a postcard or
letter written by the inmate would be sufficient for the courts to issue this writ and examine the
case to see whether the detainee is entitled to certain rights. The court ruled in the A.D.M.
Jabalpur Case2, also known as the Habeas Corpus Case, that the detained person loses their locus
standi to approach the courts in cases where Article 21 is suspended or terminated as a result of
the President's order under Article 359 (which gives the President of India the authority to
suspend the right to enforce fundamental rights guaranteed by Part III of the Indian Constitution
- which may extend to a part of India or the entire territories

Following the passage of the 44th Amendment Act of 1978, it was decided that Article 359 (1)
would not allow the suspension of the rights that individuals were given under Articles 20 and
21, not even in the case of an emergency.

1
Icchu Devi v. Union of India, AIR 1980 SC 1983.

2
A.D.M. Jabalpur v. Shivakant Shukla, AIR 1976 SC 1207.

13
Under Article 32, this writ cannot be maintained against a private person who has held the
petitioner in an unlawful position. This writ cannot be issued unless there is a prima facie case
that the detention is unjust or illegal. The Lallubhai Case 3 established that the res judicata
principle does not apply to a case or petition submitted in response to a writ of habeas corpus. In
any case, the petitioner may pursue the matter by making an article 32 application to the
Supreme Court if the High Court has rejected or dismissed a comparable argument.

Any decision made by a government body can normally be reversed or nullified by filing a writ
called a certiorari. It is one that only works, is effective, or can be applied after an action has
caused damage. Accordingly, this petition may be submitted to the court in situations where
inferior courts, tribunals, or other organizations have already made an unreasonable or useless
decision. One type of corrective action is a certiorari. Any court that excludes judicial or quasi-
judicial responsibilities from its routine operations is the target of this complaint. There is just
one means to issue it; it cannot be done from one court to another. It is obvious from reading the
concise statement that the aim of this writ is to keep an eye on how the aforementioned firms are
conducting their business.4 The courts may also employ it if a subordinate court doesn't complete
its work in a timely or efficient manner. It is crucial to remember that this writ cannot be used to
challenge a law or ordinance that has been declared void or unconstitutional in any way, as was
decided in the case of Prabodh v. State of U.P.5

In contrast to a writ of certiorari, a writ of prohibition is issued in order to stop any lesser court,
tribunal, or authority from acting. The difference between prohibition and certiorari is that the
former serves as a preventative measure or precautionary order, whilst the latter serves as a
curative measure or remedy (also in the form of an order). A higher court may issue this writ if it
thinks the subordinate court is acting outside of its authority, which is one of the most frequent
justifications. This writ might also have been issued if lower courts hadn't followed the proper
procedure. However, the court issuing this writ must make sure that it provides enough
justification and lists the reasons on which it has been issued against the relevant court, tribunal,
or authority. The primary distinction between the writs of prohibition and those of certiorari and
mandamus, despite their numerous similarities, is that the former does not require that the
authorities have taken any action in order for it to issue this writ. No writ of prohibition may be
3
Lallubhai Jogibhai v. Union of India, AIR 1981 SC 728.
4
Ghujam Sarwas v. Union of India, AIR 1967 SC 1335.
5
Prabodh v. State of U.P., AIR 1985 SC 167.

14
issued to direct an authority to act against or inconsistently with the terms of any legislation, the
Kirloskar8 ruled, regardless of the circumstances.6

A writ known as a mandamus is issued by a higher court to command a lower court or authority,
tribunal, public authority, company, or any other person, requiring them to undertake a certain
act (in accordance with the orders of the court's order). This order or directive to take action must
be a public duty of the organization it is addressed at.7

However, it must be remembered that a corporation or other entity that owes no one a duty of
public trust cannot be forced to obey a writ of mandamus. It is given in order to guarantee the
fulfillment of a public responsibility in whose fulfillment the applicant has a significant legal
stake.8 The President of India and the Governors of Indian States are the only exceptions to
whom this writ may be issued.

As stated in Rajesh Awasthi's Case9, a High Court may issue a quo-warranto whenever it
believes that an appointment to an office was made improperly and/or in violation of the
requirements of the statutory norms. Accordingly, this writ gives the courts the ability to inquire
of a person holding an office as to what authority or virtue he holds his office or position. The
term "quo-warranto" directly translates to "by what authority" in basic English. However, if it is
found that they have usurped this position and have been holding it illegally or unlawfully, then
orders for them to vacate their office may be issued. If proper proof and valid reasons have been
provided as to how they are accommodated in their office, then no action would lie against them.
When issuing this writ, the following two factors must be taken into consideration:

1. The position being discussed must be a public one.

2. The person without legal power must hold it.

Although all of these writings began in the UK, they underwent significant alterations and
evolution as soon as they were accepted in India.

6
Union of India v. Kirloskar Pneumatic Co. Ltd. (1966) 4 SCC 453.
7
Employees of Bharat Bank v. Bharat Bank, SCR 459 (1950)
8
Wade & Phillips, Constitutional Law, p. 644
9
Rajesh Awasthi v. Nand Lal Jaiswal, 2012 (10) Scale 527 :2012 (7) Supreme 752.

15
 II. ORIGIN AND EVOLUTION OF WRITS

Writs were recognized as one of the greatest contributions the British people have made to the
law, and more especially to legal remedies. Writs are thought to have existed in some capacity
for quite some time previous to the Anglo-Saxon period, but it was not until then that they were
codified and their function became evident. The idea of writs was broadly adopted by a vast
number of nations, including Sweden, Norway, Denmark, France, Germany, and India.

The writ inevitably experienced a few small form and application adjustments as it circulated
throughout the globe, but its core concepts and objectives remained the same. 10

Most of the disparities were caused by the invention of writs and the associated processes. These
inconsistencies ought to have occurred necessarily given the variances between the different
elements of the many countries, such as their populations, judicial systems, legal systems, and
other political institutions. Although significant modifications had to be made in order to take
into account of the needs of the moment and the particular conditions of the state, the
fundamental purpose of the writs remained the same.11

These writs were at first handwritten and sealed. Back then, seals had a crucial role. These wax-
sealed papers contained directives from the Crown or another appropriate body.

A wide distribution of power was possible because to the various levels of government and
offices under the Anglo-Saxon type of political organization and governance. Tribunals and
courts were present at the time, but they had a lot of disadvantages. First, there were only
compurgation or ordeal trials, and second, the local courts moved very slowly. Not only were
these trial methods antiquated, but they were also completely absurd, out of place, and, in some
cases, humiliating. Another problem was the lack of a clear distinction between community and
feudal courts' responsibilities and power. As a result, there was considerable volatility. Due to
the wealthy and powerful's repression of the courts, justice was not especially just.

The Crown and the courts decided they needed to intervene as a result. Although it was urgently
needed, the earliest steps of this intervention were conducted inappropriately, maybe even
violently at times. They originally only infiltrated the administrative and executive spheres, not
the court directly, and then slowly began to worm their way into the processes. A writ was used

10
Constitutional Law, Wade & Phillips, page 644
11
Nand Lal Jaiswal (2012) (10) Scale 527:2012 (7 Supreme 752).

16
to carry out this intervention. The writ became a written document that had full command
authority and served as the Crown's order. It was inscribed with the royal seal, and was to be
given to anybody who made a disturbance, used force, or committed any criminal activity. In
spite of the fact that this was a smooth step to be able to open doors for a better redressal system,
it was also very easily exploited and manipulated in its working, again, sometimes by the
affluent and powerful, and other times by government officials who were driven by greed or self-
interest.

This later developed into a writ that requested the addressee come before the King or the Crown,
who would hear the facts of the case, hear from both sides, interrogate any witnesses, and study
further pertinent evidence before making a judgment. Additionally, it was deemed that this
decision was definitive. It's now appropriate. Writs become a special tool for the administration
of justice after developing.

Writs developed gradually and steadily to become among the most significant forms of recourse
as law, society, and political systems altered. They later evolved into a variety of writs, including
procedendo, habeas corpus, certiorari, prohibition, mandamus, and quo warranto, each of which
was only used for the reason for which it was designed. This demonstrates how numerous
elements impacting writs and writ jurisdiction evolved with time and continued use to segment
into the various, correct forms that we are all acquainted with today.

The power and jurisdiction to handle, consider, and decide on writ-related matters subsequently
passed to lower-level or subordinate authorities (who nevertheless had some authority below
them) as judicial systems evolved. The Crown (King or Queen) of the State in England has
historically possessed the only and exclusive authority to writ jurisdiction, as we've already seen.
Due to the expanding population and the wide range of challenges individuals encounter, it was
thought that additional forums or authorities were necessary in order to hear writ petitions and
cases. Since it virtually assumed the UK's decision-making in writ proceedings in later and more
recent phases, the King's bench was allowed access to the writ jurisdiction as well as the Crown.

The UK's Chancery Division of Courts, a branch of the High Courts of the United Kingdom, is
now permitted to exercise writ jurisdiction. In addition to earlier modifications to writs and writ
jurisdiction in the UK, a number of acts were also passed (in England) that altered a number of
writs' titles as well as their jurisdiction.

17
III. HOW UK INFLUENCED INDIA (WITH RESPECT TO WRITS AND WRIT JURISDICTION)

According to Article 226 of the Indian Constitution (for High Courts) and Article 32 of the
Indian Constitution (for the Supreme Court of India), the Supreme Court and High Courts are
each given the power to exercise writ jurisdiction and to issue "directions, orders or writs, in the
nature of habeas corpus, mandamus, prohibition, certiorari and quo-warranto." The judiciary in
the Indian subcontinent is renowned for its dominance.

As we've already learned, these writs were once known as "prerogative" writs in England and
were only used at the Crown's discretion. The British left behind a variety of laws and judicial
systems or patterns in India, some of which are still in use today, as they had occupied and
annexed India while governing over it. These writings might also be considered as integral
components of the colonial era's ruins in India.

It must be recognized and stressed, nevertheless, that the imposition and interference of British
power and its laws is not the sole reason India currently has access to these writs and writ
jurisdiction. The Fundamental or Basic Rights of the Indian People are a very significant and
strong cause that has almost always been kept hidden or at least obscured, and the Drafting
Committee (of the Indian Constitution) was very anxious to guarantee that these rights are
always very aggressively maintained. They came to the realization that in order to do this, they
needed a system that handled these issues properly as well as a specific technique or instrument
that could be used to seek justice in the case that any fundamental rights were infringed.
Incorporating the idea of writs and granting the Supreme Court and High Courts of India
particular authority to have writ jurisdiction in the event that any Indian's fundamental rights
have been violated in any way was the mindset and aim of the framers of the Indian Constitution.

They were not only committed to and determined to safeguard Indian citizens' fundamental
rights, which are of utmost importance among the numerous other types of rights that an Indian
may hold. After realizing that an English-born mechanism existed that might achieve their goals,
the Drafting Committee included it to the Indian Constitution after making the required changes
to the UK's writ jurisdiction system.

The decision to include Article 32 (together with Article 226) in the Indian Constitution was a
step in the right direction toward success and a sincere comprehension of the text and spirit of

18
the law in India's judicial system. Dr. B.R. Ambedkar went on to say that Article 32 is the "heart
and soul" of the Indian Constitution.

Throughout the World War and its aftermath, the UK's judicial system entirely misbehaved and
deteriorated into a weak state. This indicated and proved that there existed a deteriorating phase
even in writ-related circumstances. The writ's importance and authority started to decline. But
soon after, India started to develop the same writs and writ jurisdiction. Without a doubt, the UK
is where the concept of writs and writ jurisdiction originated, but it is equally important to
recognize that the Indian Constitution's framers had their own special and distinctive views on
the necessity of such a system. They should thus be given credit for what is now in place in India
in this regard.

IV. CONCLUSION: PRESENT DAY SCENARIO

Writs were created in England (UK), and even copied from there before being used in India,
although their use there is significantly different from that in the UK. In Britain, writ jurisdiction
started off being quite nebulous but gradually developed into a very strong concept. However, in
comparison to India, it then started to lose both of these characteristics. Regarding its
applicability and importance, writ jurisdiction in India has never seen ups and downs.

It is somewhat surprising that this notion has become a legal concept in these two countries, one
of which (the UK) is purportedly highly affluent, powerful, and developed while the other (India)
is still in the development stage. Writs and writ jurisdiction, which originated in the UK, have
not been able to establish a stronghold in the state as of today, but in India, a colony of the UK,
they are tremendously effective, frequently utilized, and often updated - Because India, a colony
of India, borrowed the somewhat underdeveloped form of writs and writ jurisdiction from the
UK, it's possible that India, a colony of India, didn't have to deal with the enormous
developments that the UK faced since the introduction of writs, decades and decades ago.
Second, because India is accommodating in how it allows laws to evolve, it provides them with
leeway to modify and ensures ongoing control of these processes to guarantee that the delivery
of justice systems are updated as required.

A third, very important factor that needs to be taken into account in this scenario are the judges
of the Indian courts. Indian judges strive to make every judgment that they make more effective
and efficient, especially the judicial review system. Also commended for their efforts.

19
India has succeeded in this area because it has not subjected its judiciary or itself to any
historical obstacles or restraints that could have in any way impeded the development of law and
the effectiveness of writ jurisdiction; and it is an impressive feat that India has accomplished to
have done this in the short amount of time it did while still maintaining the uniqueness of the
nation's diversity, need, and setup.

However, there could be some modifications that, if done, might change the Indian Judiciary's
image and give it a far greater scope while offering the general public better opportunities to be
heard. The writ jurisdiction may be broadened to include both the legal rights and fundamental
rights of Indian nationals as a result of this revision to Article 32. In India, disputes addressing
non-fundamental rights issues are already subject to the High Courts' writ jurisdiction. What
makes the Supreme Court and the High Courts disagree on this issue, then?

The researcher wants to highlight that writs and writ jurisdiction are unquestionably significant
as a conclusion. India is where it is actually really taking off. Writ jurisdiction is undoubtedly far
more advantageously situated in India than it is in the UK.

20
 REFERENCES

Constitution

1. INDIA CONST. Art. 32.

2. INDIA CONST. Art. 226.

Articles

1. Prakhar Chauhan & Raghuveer Nath, The Dilution of Article 32 Convenience over Right,
7 GNLU L. REV. 71 (2020).
2. K.C. Joshi, Compensation Through Writs, 30 JOURNAL OF THE INDIAN LAW
INSTITUTE. 69 (1988).
3. Pamela Nightingale, The Intervention of the Crown and Effectiveness of the Sheriff in
The Execution of Judicial Writs, 123 THE ENGLISH HISTORICAL REV. 1 (2008).
4. Andrew Higgins, Legal Aid and Access to Justice in England and India, 26 NLSI REV.
13-30 (2014).
5. Yogendra Singh, Principle of Res Judicata and Writ Proceedings, 16 JOURNAL OF
INDIAN LAW INSTITUTE. 399-414 (1974).
6. Nirmalendu Bikash Rakshit, Right to Constitutional Remedy – Significance of Article 32,
34 ECONOMIC AND POLITICAL WEEKLY. 2379-2381 (1999).
7. G. Barraclough, The Anlgo-Saxon Writ, 39 HISTORY. 193-215 (1954).
8. Christopher Forsyth and Nitish Upadhyaya, The Development of Prerogative Writs in
England and India: Student becomes the Master? 23 NSLI REV. 77-85 (2011).
9. Geoffrey C. Hazard Jr., The Early Evolution of the Common Law Writs: A Sketch., 6 AM.
J. LEGAL HIST. 114 (1962).

21