TOPIC: WRIT JURISDICTION OF SUPREME COURT AND HIGH COURTS
ABSTRACT:
The Constitution of India guarantees to all the citizens of India six fundamental rights that are an immune to any kind of discrimination. Fundamental Rights are discussed in Part III of the Constitution from Article 12-35. These are taken from the US – Bill of Rights. “This chapter has been described as “Magna Carta” of India.” The Fundamental Rights are the rights given to the indivisuals by the Constitution of India for their development against the State action. Fundamental Rights are the restricted rights i.e they donot give absolute power to the indivisual except Article 17 and Article 24. The Constitution empowers the President under Article 359 to suspend any or all the Fundamental Rights by issuing a separate Proclamation during Emergency. The 44th Amendment Act 1978 prohibits the suspension of Article 20 and 21 even during National Emergency. Originally there were 7 classification of fundamental rights in India but by the 44th Amendment Act 1978, Right to Property [Article 19(1)f and Article 31] is deleted from the Part III and added to Article 300A as Legal Right.
RIGHT TO CONSTITUTIONAL REMEDIES:
Article 32 of the Indian Constitution provides remedies for violation of fundamental rights. In recent times, the power of the administrative authorities has been strengthened which has resulted in complications and repercussions in socio – economic field of india. The State has the legal duty to protect the rights of its citizens and also to compensate the victim on violation of the rights by the State. If a persons right is violated, then the aggrieved person can directly approach the Supreme Court or High Court for the enforcement of their rights. Article 32 and 226 of the Indian Constitution provides for the writ jurisdiction of the Supreme Court and the High Courts respectively for the protection and enforcement of rights of the citizens. A writ is an order by the Court that directs the authority to do an act or abstain from doing an act. The Constitution of India provides for five types of writs which can be issued by the Apex Court and the High Courts for the enforcement of rights of the citizens. These are ‘Habes Corpus’, ‘Mandamus’, ‘Prohibition’, ‘Certiorari’ and ‘Quo – Warranto’.” As per Article 32 the Supreme Court can issue writs for the protection and enforcement of fundamental rights. Article 32(1) provides to the citizens, “the right to move the Supreme Court by appropriate proceedings for the enforcements of the rights conferred by this Part is guaranteed.” The High Court under Article 226 can issue writs for the enforcement of fundamental rights as well as other legal rights. Thus, the scope of Article 26 is wider than that of Article 32.
WRIT JURISDICTION OF SUPREME COURT:
The Supreme Court is the custodian of the fundamental rights. The Apex Court of India is empowered with the power to issue writs for the enforcement of fundamental through Article 32 of the Constitution. Article 32(2) states that, “the Supreme Court shall have the power to issue directions or order or writs, including writs in the nature of Habes Corpus, Mandamus, Prohibition, Quo – Warranto and Certiorari, whichever may be appropriate for the enforcement of any of the right conferred by this part.” Thus, it is the responsibility of the Supreme Court to protect the fundamental rights of the citizens. It acts as the guarantor and protector of the Fundamental rights. Babasaheb Ambedkar called Article 32 the heart and soul of the Indian Constitution as it gives rights to the people to directly approach the Apex Court in case of violation of their fundamental rights. It is mandatory for the Supreme Court to issue writs using its power given under Article 32 because this article is itself a fundamental right and the Supreme Court is the protector of fundamental rights.
WRIT JURISDICTION OF HIGH COURTS:
Article 226 gives discretionary powers to the High Courts to issue writs for the enforcement of fundamental rights as well as other legal rights. Article 226(1) states that, “notwithstanding anything in Article 32 every High Court shall have power throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority , including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in nature of Habes Corpus, Mandamus, Prohibition, Quo – Warranto and Certiorari, or any the rights conferred by Part III and for any other purpose.” The High Court under Article 226(2) can also issue writs to any authority or person not within its local jusridiction if the cause of action arises within it own jurisdiction. Article 226(3) provides for the conditions under which an interim order or proceedings relating to petition under clause 1 of this article shall be disposed off. It states that if the copy of an interim order or proceedings relating to petition under clause 1 of this article is not furnished to the party or if the party is not given an opportunity of being heard then such petition shall be disposed off if the victim party makes an application to the High Court. The High Court shall make disposal of the application with two weeks from the date on which it is received or from the date on which copy of the application is furnished to the party in whose favour order has been made.
As per clause 4 of this article the powers conferred to the High Courts under Article 226 cannot override the powers given to the Supreme Court under Article 32(2) of the Constitution.
WRIT OF HABES CORPUS:
The literal meaning of the phrase is ‘to have a body’. It is a remedy against illegal detention and apply to cases where the procedure of arrest hasnot been followed. The writ of habes corpus is issued by Supreme Court or High Court to direct the person making the detention to produce the detained person before the court to examine the legality of detention and to set the detiune free if there is no legal justification for detention. The essential element of this writ is that the person should be in the custody of the police. The petition for habes corpus can be made only to one judge of the same court and shall be rejected if made to the other judge of the same court, as per the principle of Res – Judicata.
The Supreme Court in the case of ‘Sunil Batra vs Delhi Administration’ (1979) held that, the writ of habes corpus can also be issued against ill-treatement of prisoners by the officers in authority. This case widened the scope of habes corpus.
WRIT OF MANDAMUS:
The meaning of mandamus is ‘we command’. This writ is issued by the Supreme Court or the High Courts to command a public authority or lower courts to perform their public duty empowered to them by law or to refrain from doing an act that is against law. This writ is issued against any public authority which has judicial, quasi-judicial and administrative powers. This writ can only be issued by the courts if the petitioner’s right is infringed. The writ can be only issued for the performance of mandatory duty and not for discretionary duty.
The High Court of Orrisa in the case of ‘Manjula Manjari vs Director of Public Instruction’ refused to issue writs against DPI to include petitioner’s name in the list of books approved by DPI. The High Court stated that it is upon the discretion of the DPI whether to include a book or not and that the duty is not mandatory in nature.
WRIT OF PROHIBITION:
The writ of prohibition is generally a ‘stay order’. It is issued by the Supreme Court or High Court against a lower court or tribunal to prevent it from exceeding its jurisdiction. The writ of prohibition can only be issued when the case is pending in the inferior court and not upon its disposal.This writ orders transferring of cases to appropraite authority under whose jurisdiction case falls. This writ can also be issued if the authority acts in violation of the rights of an indivisual or violation of the principles of natural justice or under any statute or law unconstitutional in nature. It can only be issued against a judicial and quasi judicial body. In cases where there is partial exceed of jurisdiction by inferior court, then the writ shall be issued only against the act where the jurisdiction exceeds. The writ of prohibition is issued before the announcement of final order is made by the court and hence it is a preventive remedy.
WRIT OF QUO – WARRANTO:
The meaning of quo-warranto is ‘by what authority’. It is a judicial order passed by the Supreme Court or High Court against a public servant demanding to prove the legality of the authority by which one holds the position or office. The higher court issues this writ to prevent illegal usurption of public office by an indivisual. This writ protects the right of citizens to hold public offices. The writ can only be issued against public servants and against a private person. The condition necessary for issuing quo – warranto is that the office for which the writ is issued must be a public one created under any statute or constitution and also there is contrvention of such statute, constitution or statutory instrument in the appointment of the public servant. This writ is a discretionary remedy and is issued depending upon the facts of the case. The court can refuse to issue the writ of quo – warranto if the petitioner is guilty or there is alternative remedy to oust the illegal usurption of office by a public servant.
WRIT OF CERTIORARI:
The meaning of certiorari is ‘to certify’. This writ of certiorari is issued by higher courts against the order of inferior court when the lower court or tribunal exceeds or abuses its jurisdiction. Through this writ the higher courts can order the inferior court to submit to the court of records procedings pending for scrutiny to decide whether orders passed by the inferior court is valid and legal. If the order passed is in violation of rights of citizens or in violation of principles of natural justice the order is quashed by the higher court. This writ cannot only be issued to authorities exercising quasi judicial functions but also to any constitutional, statutory or non – statutory body whose functions and powers infringes the rights of the citizens. Certiorari is corrective in nature irrelavent of the fact whether the decision is judicial or quasi judicial in nature. The writ of Certiorari is issued after the passing of final order by the court is made and hence it is a corrective remedy.
CONCLUSION:
The importance of writs should never be underestimated as they protects the rights of citizens and provides remedy in case of violation of rights, thus upholding the principles of democracy and natural justice. Writs also ensure that the arbitrary administrative or judicial action doesnot infringes the rights of citizens.The power to issue writs granted to the Supreme Court and High Courts under Article 32 and 226 respectively is one of the most important power. This power provides security to the rights of the citizens of the country. This power must be wisely, judiciously and discretly used by the courts to ensure quick and fair justice to the aggrieved partyThe higher courts are entrusted with the wide scope to practice this power to control any administrative action that violates the Constitution of India.
Author: SANSKRITI RAI, a Student of MANGALAYATAN UNIVERSITY
