Writ Jurisdictions of Supreme Court and High Courts.

Writ Jurisdiction of SC & HC and Special Leave Petition
Constitutional Philosophy of Writs
A person whose right is infringed by an arbitrary administrative action may

approach the Court for appropriate remedy…
Vast powers are vested with the Judiciary to control an administrative action when it
infringes fundamental rights of the citizens or
When it goes beyond the spirit of Grundnorm of our country..(COI)
MISSION VISION CORE VALUES

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Writ Jurisdiction of SC & HC
Article 226 >>>>> Article 32…
Both the Articles 32 and 226 provide five types of writs namely writ of
Habeas Corpus,
Mandamus,
Prohibition,
Certiorari
Quo-warranto..
These are known as prerogative writs in English Law because they had originated in the King’s
prerogative power of superintendence over the due observance of law by his officers and tribunals..
L Chandra Kumar case Vs UOI (1997)
Writ jurisdiction of both the High court and the Supreme Court is a part of the Constitution's basic
structure.
Writ of Habeas Corpus:-
Habeas Corpus” is a Latin term which means ‘to have the body’..
If a person is detained unlawfully, his relatives or friends or any person can move
the Court by filing an application under Article 226 or Article 32 …
Court can order for release if there is no legal justification for the confinement..
The most important characteristic element ---speedy and effective remedy for having
the legality of detention of the person enquired and determined by the Court..

It is a bulwark against illegal detention..
The principal aim of the writ is to ensure swift judicial review of alleged unlawful
detention on liberty or freedom of the prisoner or detention …
Habeas Corpus can not be issued in the following cases:

When detention is lawful…
When the proceeding is for contempt of a legislature or a Court…..
Detention is by a competent court……

Mandamus:-
Mandamus’ is a Latin term which means “ We Command”.
Mandamus can be issued against any public body, a corporation, an inferior court, a tribunal, or government
for the same purpose.
Mandamus will not be issued unless the applicant has a legal right to the performance of legal duty of a
public nature..
The rule of Locus Standi is strictly followed in while issuing writ of mandamus.
The petitioner has to prove that he has a right to enforce public duty in his favour..
The function of mandamus is to keep the public authorities within the limits of their jurisdiction while
exercising public functions .
Mandamus will not be granted against the following persons:

The President or the Governor of a State….
Private individual (State is in collusion with such private party then yes)..
Legislature body
Ministerial officer who is bound to obey the orders of his superiors..
Against the Chief Justice of a High Court acting in a judicial capacity..

Prohibition
The expression ‘prohibition’ literally means ‘to prohibit’..
Against Inferior Court or Quasi-judicial body
On grounds Such as
Absence or Excess of jurisdiction..
Violation of the PNJ…
Writ of prohibition is available during the pendency of the proceedings and before the
order is made..
The object is to secure that the jurisdiction of an inferior court or tribunal
It can’t be issued against administrative authorities, legislative bodies and private
individuals or bodies.
Certiorari:-
The expression “ certiorari” is a Latin word which means “ to certify”/To be informed.
If the decision is bad in law, it is quashed…
It is preventive as well as curative in nature..
Grounds on which the writ of certiorari may be issued are:
Error of Jurisdiction
Lack of jurisdiction
Excess of jurisdiction
Abuse of jurisdiction
Error of law apparent on the face of the record
Violation of principles of natural justice
Certiorari can be issued even against administrative authorities affecting the rights of individuals..(Not available earlier)
(Difference between administrative actions and quasi judicial actions becoming thin)..
It cannot be issued against legislative bodies and private individuals or bodies.

Quo Warranto:
The term ‘Quo Warranto’ means ‘what is your authority’
It is a judicial order asking a person, who occupies public office, to show by what authority
s/he holds the office…
The writ is issued to the person ousting him from holding a public post to which he has no
right..
It protects citizen from being deprived of public office to which he may have a right…
A petition for the writ of Quo Warranto can be filed by any person though he is not an
aggrieved person…
Objective is to control executive action in the matter of making appointments to public offices
under relevant statutory provisions .

The conditions necessary for the issue of a writ of Quo Warranto are:
The office must be public not a private office.
This office is created by the Constitution or a Law….(ONGC, NTPC…)
It may be refused when it is vexatious or where there is an alternative remedy for ousting the
usurper……

Special Leave Petition Art 136
Special Leave Petition ..
Supreme Court can grant special leave to appeal from any judgment, decree, or order in any
cause or matter, passed or made by any court or tribunal in the territory of India..
Any judgment, determination, sentence or order passed or made by any court or tribunal
constituted by or under any law relating to the Armed Forces.(Not applicable)
Even when HC is not issuing Certificate of appeal..
Exercise the same is always recommended within the ambit of certain principles…
The Court inter alia laid down the following propositions of law:
Leave to appeal in criminal cases could only be given where some clear departure from the
requirements of justice is alleged to have taken place…
One need to ensure that disregard of it , substantial and grave injustice will be done.

Time framework(Condonation of delay allowed)
90 days in case of order, decree, judgement….
60 days in case of Refusal of certificate by HC…
Who Can File---? Any aggrieved Party…..
Content of SLP…..
Petition is required to contain all necessary facts…
Signed by Advocate on Record………….
Statement by petitioner that he/she has not filled any petition in HC..
Certified copy of judgement appealed against……
All the documents which were given in Lower Court…

Scope of Power vested in SC under Art 136..
It is discretionary power of SC, Not right of party to appeal..
SC may refuse to allow ….
It is considered as residual power of SC….
Kunhayammed & Ors vs State Of Kerala & Anr 2000..

No right of appeal is conferred upon any party; only a discretion is vested in Supreme Court
to interfere by granting leave…..
Can High Court review its order if SLP is rejected by the Supreme Court?
The dismissal of an SLP against an order or judgment of a lower forum is not an affirmation of the same..
High Courts can still review its own judgment even if the SLP is rejected by the Supreme Court…
In the case of any SLP , the SC has first to decide in its discretion whether it should grant or deny the
requested Special Leave…
Where there has been substantial injustice or disregard to the legal procedure by any courts except
tribunals made for armed forces ..
If there is a violation of the principle of natural justice so in such cases, the Supreme Court of India can
allow anybody to approach for appeal under Article 136
Some examples from Criminal Law where SC applies Art 136…
If the accused was not given any chance to speak which becomes a grave injustice in
the legal system of India..
When the trial took place in the absence of the accused..
When the court did not allow the accused to call any witnesses .

When the court declared the judgment without understanding the language of the accused..
When it was proved that the court which gave the judgment did not have the jurisdiction to
try such a case..
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There are no rules laid as to the circumstances under which Supreme Court of India may
exercise its discretion..
Generally it is applied in special and extra-ordinary situations where legal issues require its
immediate attention or where a question of law on general public importance arises…
Under Article 136 it was not bound to set aside an order even if it was not in conformity with
law, since the power under Article 136 was discretionary..
In Mathai @ Joby v. George ((2010) 4 SCC 358)
SC accepted that the arrears in this Court are mounting and mounting and this Court has been
converted practically into an ordinary appellate Court which was never the intention of Article
136 ….
Now-a-days it has become a practice of filing SLPs against all kinds of orders of the High
Court or other authorities without realizing the scope of Article 136…
Some broad guidelines need to be laid down now by a Constitution bench of this Court
otherwise this Court will be flooded/already flooded…..

SC should only hear important questions relating to the Constitution or the law or where
grave injustice has been done…
Court has gradually converted itself into a mere Court of Appeal which has sought to correct
every error which it finds in the judgments of the High Courts( Statements by many jurists)..
Article 136, like Article 226, is a discretionary remedy, and the Supreme Court is not bound
to interfere even if there is an error of law or fact in the impugned order..

Judicial Precedent
 JP-The doctrine of precedent--also known as stare decisis- stand by the decision
 It is based on the principle that like cases should be decided alike..

 The judicial decisions are of two types
 One which create a new law, (Shahbano Case, Right to Privacy, Right to free medical
Help, Safe environment in sexual harassment cases---
 Original precedent, though fewer in numbers, are greater in importance, as they alone
develops the law
 Declaratory precedents of law, for the law on most of the points is already settled, and
judicial decision are mere declarations of pre-existing rule-Nirbhaya Case, (Capital
Punishment,)
GENERAL UNDERSTANDING ---
Guidance or authority of past decisions for future cases.
Precedents must be reported, maybe cited and may probably be followed by courts.
Precedents must have opinio-juris.(By Courts, By Public…)(Mathura Case)
It must not violate any existing statue law.(Game of Judicial Review & Constitutional amendment)..
According to Bentham precedents are ‘Judge made Law.’

According to Austin precedents are ‘Judiciary’s Law.
Salmond- guidance or authority of past decisions for future cases(Strict sense)
Gray, ‘ precedent covers everything said or done, which furnishes a rule for subsequent practice.
Nature of precedents
Judicial decision can make a law but cannot alter it.(constitutive and not abrogative)
(Supplementary not supplanting)
Where there is a settled rule of law, It is the duty of the judges to follow the same.(Literal
Interpretation)…
Types of precedents
Binding precedents- Court must follow the rules established by a Court above it.
Ratio Decidendi and Obiter Dictum
Persuasive precedents—
Persuasive precedent may come from a number of sources such as lower courts, “horizontal”
courts, foreign courts, statements made in obiter dicta..

Position under Indian Constitution:
"The law declared by the Supreme Court shall be binding on all courts within the territory of
India.
Art 141
Whether Supreme Court comes under the sphere of all courts? No
Kesavananda Bharti Vs State of Kerala 1973 SC
The judgment not founded on reasons.
An Obiter Dicta of a case is not binding ..
Judgments made on Per Incuriam cannot be used as precedent.
Literal meaning of per incuriam is resulting from ignorance.

Merits of the Doctrine of Precedents
Respect-It shows respect to one ancestors’ opinion……
Save time of the courts…..
Consistency and predictability--Precedents bring certainty in the law…..
Flexibility: Precedents are Judge made law. Therefore, they are more practical…….
Demerits of Judicial Precedent..

Complexity: Every judge issues his own perspective on matter to create more precedents.
(Privacy-)
Possibility of overlooking of authorities: Sometimes, the conflicting decisions of superior
courts put the judges of lower courts into a dilemma.
Naz Foundation vs. Govt. of NCT of Delhi) Navtej Singh Johar vs. Union Of India (2018)
(Adultery, Homosexuality, Whether constitution can be amended or not(Now settled)
Precedents may hinder the development of law.

Writ Jurisdictions of Supreme Court and High Courts.

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Writ Jurisdictions of Supreme Court and High Courts.

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Writ Jurisdiction of SC & HC and Special Leave Petition

Constitutional Philosophy of Writs

A person whose right is infringed by an arbitrary administrative action may

When it goes beyond the spirit of Grundnorm of our country..(COI)

MISSION VISION CORE VALUES

MISSION VISION CORE VALUES

Habeas Corpus can not be issued in the following cases:

MISSION VISION CORE VALUES

Mandamus will not be granted against the following persons:

Ministerial officer who is bound to obey the orders of his superiors..

Against the Chief Justice of a High Court acting in a judicial capacity..

It cannot be issued against legislative bodies and private individuals or bodies.

MISSION VISION CORE VALUES

This office is created by the Constitution or a Law….(ONGC, NTPC…)

MISSION VISION CORE VALUES

MISSION VISION CORE VALUES

MISSION VISION CORE VALUES

It is discretionary power of SC, Not right of party to appeal..

SC may refuse to allow ….

It is considered as residual power of SC….

Kunhayammed & Ors vs State Of Kerala & Anr 2000..

When the trial took place in the absence of the accused..

MISSION VISION CORE VALUES

MISSION VISION CORE VALUES

MISSION VISION CORE VALUES

 It is based on the principle that like cases should be decided alike..

Precedents must have opinio-juris.(By Courts, By Public…)(Mathura Case)

According to Bentham precedents are ‘Judge made Law.’

MISSION VISION CORE VALUES

MISSION VISION CORE VALUES

Demerits of Judicial Precedent..

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