India follows a single integrated system of judicial administration, where the
Supreme Court of India stands at the apex, followed by the numerous High Courts
in the states and finally, the District and Subordinate Courts in the districts.
And, it will not be false to assert the fact that the present judicial system in
India is a product of years of legal, constitutional and statutory developments
and evolution, ranging from the earliest efforts of the East India Company to
that of the Constituent Assembly of India.
The present judicial framework of the country operates under various
jurisdictions, prescribed by the Constitution itself, in order to define
specific boundaries for the usage and control of its authority, vis-�-vis,
general jurisdictions like that of Territorial or Pecuniary, and certain special
jurisdictions, exclusively reserved by Courts in the upper chambers of the
judicial hierarchy, like that of the Writ jurisdiction.
The Supreme Court of India and the other High Courts have exclusive Writ
jurisdiction, which is intended to provide a viable recourse for the redressal
of matters relating to grave violations of the fundamental rights of Indian
citizens. As a result, it becomes critical from the standpoint of both the
concept of 'Rule of Law' and the basic essence of the Constitution.
This article focuses on such initial and later developments, concerned with the
Writ jurisdiction of Courts and its scope, in India.
Origin And Development
The Writ jurisdiction of in Indian judicial system traces its origin back in
1773, under the Regulating Act (formally, the East India Company Act, 1773) in
accordance of which the Supreme Court at Calcutta was established, for the first
time. This act, passed by the British Parliament, is crucial to the
establishment of judicial and administrative management in India because, it was
first such parliamentary validation and permission establishing the East India
Company's (hereinafter, the 'Company') rights and authority, with respect to its
From this period onwards, subsequent efforts were made by the British
Administration with respect to the extension of judicial and administrative
jurisdiction of the Company, including the introduction of Writs. Writs were
actually, 'Prerogative Orders' issued by His Majesty in certain exceptional
circumstances, where matters involving gross infringement of rights of the
individual were listed to the King-in-Council, by the Executive Council of the
Governor General of Bengal (later, Governor General of India, under the Charter
Later, after the enactment of the Constitution of India, the authority of Writs
was incepted as a judicial jurisdiction only, exclusively reserved by the
Supreme Court of India and all the High Courts in the territory of India, in
accordance with Art.(s) 32 and 226, respectively.
Therefore, presently, a Writ is a formal judicial order issued by a Court of
higher competency, to such Court(s) lower than itself or any individual, as the
case maybe, directing certain specific actions or omissions with respect to any
matter concerned with infringement of Part�III (Fundamental Rights) of the
Constitution of India, under certain circumstances. The guardianship of the
ideals of 'Rule of Law' and 'Audi Alteram Partem' are the essential elements of
the Writ jurisdiction, safeguarding the aggrieved person's fundamental and legal
Scope in the Present Judicial Framework
In so far as the scope of Writ jurisdiction in the present judicial framework is
concerned, there are numerous conclusions connected thereto and, there have been
diverse judicial precedents and interpretations, holding various identifiable
rationales for the ascertainment of its extent and enforcement as per the
Constitution of India.
The Indian Constitution recognises five different types of Writs, which are as
Pronouncing the authority of Supreme Court in matters concerning Writ
jurisdiction, clause (2) of Art. 32 of the Constitution of India states:
- Habeas Corpus:
Habeas Corpus is a Latin term that means "to produce the body." It is an order issued by a court to a person who has detained another person to bring the latter before it. Following that, the court evaluates the legitimacy of the arrest or detention and may acquit such individual if the case is untrue.
Mandamus is translated as "we command" in Latin. It is an order issued by a court of higher grade or competency directing a public official to undertake his official obligations, which he has failed or refuses to perform.
Another Latin term, referring to "to prohibit". This is an order issued by a higher court to a lower court, in circumstances wherein the latter might act or might have acted, beyond its specified jurisdiction.
It means "certified". It is again, issued by a higher court to a lower court to transfer any matter pending before the latter, in order to apply more careful consideration as the former deems fit.
- Quo Warranto:
This translates to "by what authority", and is issued by a court to a public official in order to observe and inquire about such person's authority and jurisdiction over the office and the matters undertaken by him.
The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of
any of the rights conferred by this Part.
Whereas Art. 226(1) of the Constitution of India states:
Notwithstanding anything in Article 32 every High Court shall have powers,
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 for the
enforcement of any of the rights conferred by Part-III and for any other
Additionally, as per the primary conclusions derived by the virtue of Art.
226, it may be noted that High Courts have additional powers with respect to
the issuing of Writs. In this case, they have greater clout than the Supreme
Court. Unlike the Supreme Court, which must issue Writs when fundamental rights
are violated, the High Court can grant Writs at its discretion.
While examining the legitimacy and appropriateness of this jurisdiction, the
apex court and many a times, several high courts have given numerous judgments
for the consideration of the subject.
For instance, in the case of L. Chandra Kumar v. Union of India
, the Hon'ble
Supreme Court ruled that the Supreme Court's authority to issue writs to Indian
citizens in order to uphold their fundamental rights is an aspect of the basic
structure concept and that, as a result, this power can never be amended or
Secondly, AK Gopalan v. State of Madras
. This case shed light on the
principles of 'due process of law' and 'procedure established by law', as well
as the legitimacy of the Preventive Detention Act, 1950 and the relationship
between Art.(s) 19 and 21 as well as the Writ of Habeas Corpus. The said
act contained provisions for arrest, contrary to what mandated by law, and held
to be valid in the matter, which was later overruled under Maneka Gandhi v.
Union of India.
In another case of SP Gupta v. UOI
, also known as the "judges' transfer"
case. The appeal asked for the availability of documents related to the transfer
and appointment of judges. According to the Court, every record of public
importance must be made available upon request, and this was one such document.
The Writ of Mandamus was upheld and utilised to sue the government.
Therefore, it may be understood that the Writ jurisdiction is and has been a
major standpoint in the legal and constitutional history of India, followed by
its scope in the present judicial framework as well, for it holds a central
place in matters pertaining to threat to the fundamental and legal rights of the
citizens of India.
Hence, it may be established that the Constitution of India not only provides
its citizens with a range of ways to freely enjoy their rights, but also to
defend those rights. Furthermore, the Indian Constitution has created the
nation's judicial framework and structure in such a delicate and precise manner
that it gives the higher judiciary a significant amount of power and authority
for the protection of individuals' freedom and dignity, as well as for upholding
the principles of democracy in their purest form.
- Constitution of India 1950, art 32.
- Constitution of India 1950, art 226.
- Constitution of India 1950, art 32(2).
- Constitution of India 1950, art 226(1).
- Constitution of India 1950, art. 226.
- L. Chandra Kumar v Union of India (1997) 3 SCC 261.
- A.K. Gopalan v State of Madras 1950 SCC 228.
- Preventive Detention Act, 1950.
- Constitution of India 1950, art. 19.
- Constitution of India 1950, art. 21.
- Maneka Gandhi v Union of India (1978) 1 SCC 248.
- S.P. Gupta v Union of India 1981 Supp SCC 87.