Law Of Writs

ANWESHA GHOSH
“very soul of the Constitution and
the very heart of it”
~Dr. BR Ambedkar, Drafting Committee on Article 32 of the Constitution of India
 • Constitutional Provisions:
• Articles 32 and 226 of the Indian Constitution empower the Supreme
Court and High Courts, respectively.
• Writ Jurisdiction:
• Supreme Court and High Courts have the authority to issue writs.
• Protection of Fundamental Rights:
• Writs are instrumental in enforcing and protecting fundamental rights.
• Definition of Writs:
Background • Court Orders:
• Writs are orders issued by the Court (Supreme Court or High Courts).
• Directive Nature:
• They direct individuals, officials, or authorities to either perform or
refrain from an action.
• Access to Legal Recourse:
• Right to Approach Court:
• Individuals affected by arbitrary administrative actions have the right to
seek remedy.
• Ensuring Justice:
• Courts serve as avenues for individuals to uphold their rights and seek
redressal for grievances.
Constitutional philosophy of Writs
Guardians of Writs embody the constitutional commitment to safeguard fundamental
Fundamental Rights rights.
Judicial Review Writ jurisdiction enables the judiciary to review administrative decisions
for conformity with constitutional principles.
Access to Justice Writs ensure access to justice by providing a speedy and efficacious
remedy against violation of rights.
Upholding Rule of By enforcing writs, the judiciary upholds the supremacy of the Constitution
Law and the rule of law.
Balancing Powers Writs help maintain the delicate balance of powers among the three
branches of government.
Historical Evolution of Writs in India
East India Expansion
British Judicial
Company of
Influence Recognition
Era Jurisdiction

The significance of writ With the enactment of the

The East India Company Charter Act of 1833 and
The formal introduction jurisdiction was
introduced writ subsequent judicial
of writs in India recognized by the
jurisdiction through pronouncements, the
occurred during British courts during the British
Royal Charters and jurisdiction of writs
colonial rule, primarily Raj, particularly with expanded to encompass
Regulations to establish
influenced by English the emergence of the protection of fundamental
its authority and
legal traditions. Supreme Court of rights and judicial review of
administer justice.
Calcutta in 1774. administrative actions.
Landmark cases on Writ Petition in India
Maneka Gandhi v. Union of India (1978)
• This case is significant for expanding the scope of personal liberty under Article 21 of the Constitution. The Supreme Court held that
the procedure established by law must be fair, just, and reasonable, and that personal liberty cannot be deprived except by the
procedure prescribed by law.
Kesavananda Bharati v. State of Kerala (1973)
• This landmark case established the doctrine of basic structure, which limits the amending power of the Parliament. The Supreme
Court held that certain essential features of the Constitution, including fundamental rights, cannot be amended or abrogated.
ADM Jabalpur v. Shivkant Shukla (1976)
• This case is also known as the “Habeas Corpus case” during the Emergency period. The Supreme Court held that during a state of
Emergency, the right to personal liberty under Article 21 can be suspended, and the courts cannot entertain habeas corpus
petitions challenging detentions.
Olga Tellis v. Bombay Municipal Corporation (1985)
• In this case, the Supreme Court recognized the right to livelihood as a part of the right to life under Article 21. The court held that
slum dwellers cannot be evicted without providing alternative arrangements or rehabilitation.
Contd.
Vishakha v. State of Rajasthan (1997)
• This case dealt with the issue of sexual harassment of women in the workplace. The Supreme Court
laid down guidelines for preventing and addressing sexual harassment, recognizing that it violated
the fundamental rights of women.

S. R. Bommai v. Union of India (1994)

• This case clarified the law relating to the imposition of President’s Rule in states. The Supreme Court
held that the power to impose President’s Rule should be exercised sparingly and subject to judicial
review.

PUCL v. Union of India (2003)

• In this case, the Supreme Court addressed the issue of custodial deaths and human rights abuses by
the police. The court issued guidelines to prevent torture, custodial violence, and custodial deaths.
Some recent instances:
Shreya Singhal v. Union of India (2015)
• Supreme Court utilized its writ jurisdiction to strike down Section 66A of the Information Technology Act, 2000. This action upheld
the freedom of speech and expression enshrined under Article 19(1)(a) of the Constitution, illustrating the judiciary's power to
safeguard fundamental rights through writs.
Common Cause v. Union of India (2018)
• Supreme Court exercised its writ jurisdiction to recognize the right to die with dignity as a fundamental right under Article 21 of the
Constitution. This judgment allowed for passive euthanasia and living wills, illustrating the Court's authority to interpret and
enforce constitutional rights through writs.
Justice K.S. Puttaswamy v. Union of India (2017)
• commonly referred to as the Aadhaar judgment, the Supreme Court utilized its writ jurisdiction to affirm the right to privacy as a
fundamental right under Article 21 of the Constitution.
Navtej Singh Johar v. Union of India (2018):
• Supreme Court utilized its writ jurisdiction to partially strike down Section 377 of the Indian Penal Code, thereby decriminalizing
consensual homosexual relations among adults. This landmark ruling stressed the Court's commitment to upholding the principles
of equality and non-discrimination, thereby recognizing and affirming the rights of LGBTQ+ individuals.
Contd.
Anuradha Bhasin vs Union of India (2020)
• the court exercised its writ jurisdiction to mandate that the government must
publish all orders related to internet shutdowns and provide affected individuals
with the opportunity to challenge these orders before an independent judicial
authority.
Joseph Shine v. Union of India (2018)
• The Adultery judgment struck down Section 497 of the Indian Penal Code as
unconstitutional. This ruling, made through writ jurisdiction, underscored the
Supreme Court's role in safeguarding fundamental rights and promoting gender
equality.
Different types of writs
Habeas corpus is a Mandamus is a Quo warranto is a
Latin term which Latin term which Latin term which
means “to have a means “to means “by what
body of” command” authority”

Prohibition is an
Certiorari is a Latin
English term which
term which means
means “to forbid
“to certify”
or to stop”
Writ of habeas corpus
Purpose: Facilitates the release of unlawfully detained individuals.

Scope: Applicable to persons in police, judicial, or private custody.

Ensures presentation before a court of law.

Burden of Lies with the detaining authority.

Proof:
Filing: By the detained person or their representative.

Targets: Applicable against both public authorities and private individuals.

Contd.
In which situations can the writ be issued
◦ When the detention is not in accordance with the procedure established by law.
◦ When an arrest is made under a law that in itself is unconstitutional.
◦ When the procedure established by law is not strictly followed.

In which situations can the writ not be issued

◦ The writ is not available during the proclamation of an emergency.
◦ The writ is not available if the writ petition is dismissed by the competent court.
◦ The writ is not available when the detention of the person is related to the order of the court.
◦ The writ is not available when the confinement of the person is shown to be legal by providing the
necessary evidence.
Relevant Case Laws
In the case of Sunil Batra v. Delhi Administration (1980), an application in the form of a letter was
filed before the apex court by a prisoner in the place of his prison inmate stating the manhandling by
the jail officials. The apex court issues the writ of Habeas Corpus upon the application which clarified
that the writ is not only available against wrongful detention but for the protection against indecent
behavior during the period of detention.
In the case of Kanu Sanyal v. District Magistrate Darjeeling and Ors.,(1974), it was held by the
Supreme Court that this writ is a procedural writ and not a substantive writ. The Court also said that
there should be a focus on examining the legality of the detention according to the facts of a case.
In the case of Additional District Magistrate of Jabalpur v. Shiv Kant Shukla (1976), also known
as the habeas corpus case, the central question revolved around the viability of the writ of habeas
corpus during a state of emergency. This landmark case unfolded against the backdrop of the
proclamation of emergency in India. The verdict, drawing parallels with the British case of Liversidge
v. Anderson, upheld the government's power to suspend fundamental rights, including the right to life
under Article 21 of the Indian Constitution, during emergencies. This decision, viewed as controversial
and widely criticized, marked a significant moment in Indian legal history, sparking debates on the
delicate balance between individual liberties and state authority in times of crisis.
Contd.
In Rudal Shah v. State of Bihar (1983), the petitioner had been acquitted in Muzaffarpur, Bihar,
on June 3, 1968, but astonishingly, he remained in custody until his release on October 16, 1982,
a span of over 14 years. Through a habeas corpus petition, he sought his release, contending that
his detention in jail was unlawful. Additionally, he requested ancillary reliefs such as
rehabilitation, reimbursement of medical expenses incurred during his incarceration, and
compensation for the illegal detention. The Supreme Court ruled that his detention was indeed
illegal as he had not been presented before a magistrate court. Consequently, the court ordered
compensation of 30 thousand rupees to be awarded to the petitioner.
Writ of mandamus
This writ is issued by a court of higher authority directing the lower courts, or any other public
servant, who has failed to perform their duty, to perform their mandatory public duty correctly
and efficiently.
This writ is the last resort, i.e., it is issued only when all other attempts to solve the problem
have been made.
The writ can be issued against any type of authority; legislative, judicial, quasi-judicial or
administrative.
Contd.
In which situations can the writ be issued
◦ The person or any public authority against whom the writ has to be issued must be under an obligation by law
to perform a certain duty, which he has failed or neglected to do.
◦ The public duty must be mandatory in nature, and there must be a failure to perform such a mandatory act.
◦ The petitioner must have a legal right to compel the performance of such public duty.
In which situations the writ cannot be issued
◦ This writ cannot be issued against the judges of the High Court and Supreme Court, compelling them to
perform their duty.
◦ This writ cannot be issued against the President of India and the Governor of any state, compelling them to
perform their duty.
◦ This writ cannot be issued against the working Chief Justice of India, compelling him to perform his duty.
◦ This writ cannot be issued when the nature of the duty is discretionary.
◦ This writ cannot be issued against a private individual.
◦ This writ cannot be issued to enforce a private contract.
Relevant Cases
In All India Tea Trading Co. v. S.D.O. (1962) case, the Land Acquisition Officer erroneously
refused to pay the interest on compensation amount. A writ of mandamus was issued against
the Land Acquisition Officer directing him to reconsider the application for the payment of
interest.
S. P Gupta v. Union of India (1982) This was a case of public litigation judged by a seven-judge
bench of the Supreme Court which is also known as the “judges’ transfer” case. The petition
sought disclosure of documents regarding the transfer and appointment of judges. The Court
stated that any document that holds public interest is to be disclosed if asked so, and this was
one such document. The writ of mandamus was used to move against the State.
Writ of quo warranto
This writ is issued asking public servants or any private person to prove under what authority
they are holding a certain public office.
The burden of proof lies with the concerned person.
However, if the concerned person fails to prove his authority, he can be removed from public
office.
This writ prevents any person from wrongfully usurping a public office without any authority.
Contd.
In which situations can the writ be issued
◦ There must be an existence of a public office created by law.
◦ The public office must be substantive and permanent in nature.
◦ The position in a public office may be unlawfully held by a private person.
◦ There has been a contravention of the law in appointing a person to the concerned public office.
◦ The duties arising from public office must be public in nature.
In which situations the writ cannot be issued
◦ This writ cannot be issued if there is any political gain to the petitioner by the issuance of this writ.
◦ This writ cannot be issued against any state minister.
Relevant Case Law
In the case of the University of Mysore v. CD Govinda Rao (1963) the university had appointed a
person who was not meeting the eligibility criteria required for the post. As a result, an
application for the issuance of this writ was presented before the Hon’ble Supreme Court which
said that the office against which the issuance of the writ of quo warranto is prayed for must be
of a “substantive” nature.
In the case of Mahesh Chandra Gupta v. Dr Rajeshwar Dayal and Ors. (2003), the appointment
of the respondent in a medical college was questioned, but no connection was found between
the respondent and the appointment. The Allahabad High Court was of the opinion that for the
issuance of the writ of quo warranto, there must be some connection between the petitioner
and the respondent.
Writ of certiorari
This writ is issued by the higher courts (Supreme Court) directing a lower court to transfer a
particular case to the higher court for consideration. The higher courts also have the authority to
quash an already passed order by the subordinate courts. This writ aims to correct the mistakes
made by the judiciary at the lower level.
Contd.
In which situations can the writ be issued
◦ This writ can be issued when a person is bound by a legal authority.
◦ This writ can be issued when such a person acts beyond its jurisdiction.
◦ This writ can be issued when a person acting judicially commits an error of law.
◦ This writ can be issued when such a person has committed fraud or has violated the principles of
natural justice.

In which situations the writ cannot be issued

◦ This writ cannot be issued in cases when the judge refuses to accept the request for review.
◦ This writ cannot be issued when the only objective is to waste the time and effort of the court.
Relevant Case Law
In the case of A. Ranga Reddy v. General Manager of co-operative electric supply society
(1987), various appeals were made demanding elections of the co-operative societies to be held
in the state. However, the High Court of Andhra Pradesh held that the writ of certiorari cannot
be issued against a private person.
Writ of prohibition
This writ is issued to prevent a lower court or tribunal from acting beyond its authorised
jurisdiction.
After the issuance of this writ, the proceedings in the lower court stop immediately, and the
case is transferred to the authority that has authorised jurisdiction over the case.
This writ can also be termed a “stay order.”
Relevant Case Law
The Supreme Court in the case of Govind Menon Vs. UOI (AIR 1967 SC 1893) laid down the
conditions in which one can issue the writ of prohibition. The conditions by the court are:
◦ • When there is an excess of jurisdiction
◦ • When there is an absence of jurisdiction
Common Scenarios for Declining Writ
Petitions
Lack of Jurisdiction
◦ Matters falling outside Supreme Court's jurisdiction may lead to refusal of the writ petition. Some issues are
under lower courts, tribunals, or specialized forums.
Alternative Remedies
◦ Availability of alternative legal remedies may result in the Supreme Court refusing to grant a writ. Writs are
exceptional and considered when no other adequate legal remedy exists.
No Fundamental Rights Violation
◦ Writs are typically issued to safeguard fundamental rights. If the court finds no violation of fundamental rights,
it may decline to issue a writ.
PIL Issues
◦ In cases where the Public Interest Litigation (PIL) lacks genuine public interest or appears frivolous or
motivated by personal interests, the Supreme Court may reject it.
Legal Laches
◦ Procedural irregularities or legal lapses in filing the writ petition may lead to its refusal by the court.
Daryao and Others vs. The State of U.P.
and Others
Res Judicata Principle
◦ Established principles regarding the applicability of res judicata in subsequent petitions under Article 32
after a dismissal of a writ petition under Article 226 by the High Court.

Dismissal Grounds
◦ If the High Court dismisses a writ petition on grounds of no proof of fundamental rights being
contravened or if such contravention is constitutionally justified, a subsequent petition to the Supreme
Court on the same facts and reliefs by the same party would be barred by res judicata.

Exceptions
◦ Dismissal by the High Court due to party's delay (laches) or availability of an alternative remedy may not
bar a subsequent petition under Article 32.

Nature of Dismissal
◦ Whether res judicata applies depends on the nature of the dismissal order by the High Court, with
dismissals in limine without a speaking order or as withdrawn not constituting a bar.
Conclusion
The power to grant writs is one of the most important powers granted to the High Courts and
the Supreme court under Section 226 and Section 32 respectively.
Writs protect the rights of the citizens by providing a faster remedy, thereby upholding the
principles of democracy by providing quick justice.
The importance of writs cannot be underestimated, and the courts must necessarily use this
power judiciously as they have been given a very wide ambit to practice this power.