Last week I got an opportunity to visit Tezpur, the third largest city of
Assam. The state of Assam, has a total area of around 78,000 square kilometers
and is very rough in terrain geographically.
At Tezpur local bus stop, I met Kanti Borah,a litigant who basically was from
Tinsukia District and was heading to Guwahati in relation to a writ petition in
Guwahati High Court. In rough terrains where transportation is not so developed,
the distance between two city is of around 14 hours. He has to visit Guwahati at
least once in a month for the said writ proceedings, thanks to Corona which gave
some relief to him in last 3-4 months.
In Tinsukia, we have a small court ( he means district court) and for other
matters we have to come to High Court Borah said in Hindi with Assamese accent.
His voice was impregnated with pains of traveling in trying times of corona
Kanti Borah is not alone; many others have to stretch themselves from one corner
of their state to other in order to access the High court. This situation
becomes more bleak and grin for Litigants hailing from geographically large
states like Rajasthan, Maharashtra, Madhya Pradesh and Uttar Pradesh.
High courts largely does not enjoy original jurisdiction. Most of the cases in
High Courts are either for appeal or for remedial write under article 226/227 of
constitution. As per data on the National Judicial Data Grid (NJDG), in the year
of 2018, there were 49,83,236 pending cases in the High Courts of the country.
This backlog in the High Courts has increased to over 50 lakh, which includes
over 24 lakh civil cases and over 13 lakh criminal cases, the rest being writ
petitions. This is pertinent to note that a fair chunk (around 25 percent) of
backlog cases in High court comprises of writ petitions.
Kanti Borha and several other such Litigants forced me to find the possibility
of power of writ to be given to district Judge. This article is about the
constitutional position, pros and cons of giving writ jurisdiction to district
Present Constitutional Position about Writ Jurisdiction:
Under the Indian legal system, jurisdiction to issue prerogative writs is
given to the Supreme Court, and to the High Courts of Judicature of all Indian
states. Parts of the law relating to writs are set forth in the Constitution of
India. The Supreme Court, the highest in the country, may issue writs under
Article 32 of the Constitution for enforcement of fundamental rights and under
Article 139 for enforcement of rights other than fundamental rights, while High
Courts, the superior courts of the States, may issue writs under Articles 226.
The Constitution broadly provides for five kinds of prerogative writs: habeas
corpus, certiorari, mandamus, quo warranto and prohibition.
The origin of writs in India goes back to the Regulating Act 1773 under which a
Supreme Court was established at Calcutta by a charter in 1774. A similar
charter also established the Supreme Courts of Madras and Bombay with analogous
provisions in 1801 and 1823 respectively. Letters patent were given to all the
These courts were replaced by the High Courts in 1862 under High Courts Act
1861. The High Courts so established enjoyed all the powers, which were there
with the Supreme Courts replaced by these courts.
Thus the three presidency High Courts inherited the power to issue writs as
successor to the Supreme Court. Other High Courts subsequently established did
not have these powers because they were newly created and they could not inherit
these powers as the presidency High Courts did.
The special authority, which was conferred by the charter on the three
presidency High Courts, was not mentioned in the letters patent of the
subsequent courts. However, the writ jurisdiction of these courts was limited to
their original civil jurisdiction, which they enjoyed under Section 45 of the
Specific Relief Act,1877.
Under the above status of the law of writs our country got independence and the
constitution of free India came into force. The law of writs as inherited from
the English colonial regime was having a limited scope but its effectiveness was
time-tested. Therefore, the constitutional forefathers decided to retain the
concept as such in its ‘nature’ as a broad parameter, but its scope was enlarged
by adding some new words to it and it was left open ended also. The objective to
retain the power of writ to Supreme or High Courts was that these two courts
are courts of records with constitutional mandate.
Is Empowering District Judge with writ jurisdiction constitutionally
As discussed above, no other court, tribunal, Judicial or quasi-judicial body
except high court and Supreme Court is empowered with writ jurisdiction. But
clause 3 of article 32 provides that parliament is competent to empower any
other court with writ jurisdiction. This indicates the importance of this clause
from its requirement point of view.
While incorporating this provision in the constitution, it was there in the
minds of the framers that keeping in view its role and effectiveness of supreme
court and the vast size of the country, it alone may not be able to cater to the
needs of the people for this purpose.
It could be in their mind that these powers might be needed more and more.
Anticipating this situation, they specifically provided it in the constitution
and empowered the parliament to empower any other court also to exercise these
powers within the local limits of jurisdiction of such court. It is further
submitted that the situation was anticipated and visualized rightly by the
constitutional forefathers. Keeping in view the growing pendency of such
petitions in the Supreme Court and the limited capacity of the Apex Court to
adjudicate such petitions, sooner or later the parliament may have to think on
these lines to extend the availability of this right to the people.
The same constitution which talks about article 32(3) has given power to high
courts under article 226, hence it can be safely infer that the clause 3 of
article 32 is for any court other than high courts and supreme Court. The
Parliament can designate any court as a Writ Court while taking power under
article 32(3) of Indian constitution.
Now it is needless to say that District judge is highest court in a district
having superintendence over additional and assistant District judges along with
civil judges of senior and junior division. According to Article 233, the
appointment of district judges is to be made by Governor in consultation with
the High Court exercising jurisdiction in that area.
The district judge is highly experienced person with around 20 years of service
to his credit. If parliament empowers the district judge to entertain writ
petition, then it is justifiable. In that scenario, every District Court shall
be competent to hear writ petition and this eventually will help the general
public in getting speedier justice.
How the writ jurisdiction to district judge may benefit:
- This will eventually reduce the burden on high courts.
- The most beneficial thing is that the general public at large will
access the justice more easily. The public will not have to travel too far
at the seat of high court.
- The distance between place of residence of Litigants and seat of high
court is a significant factor in filing of a case. Most people avoid
approaching the high courts for their grievances because these are too far
from their place of residence.
- As writ petitions so are filed in high courts only ,hence the advocates
practicing in high courts get the opportunities to deal with these cases and
the lawyers practicing( even more calibrated) in subordinate Judiciary are
deprived of dealing with writs petitions. This creates a class based bias.
- On executive side, as the district magistrate is top office to deal with
all sort of issues related to district under his jurisdiction, similarly the
district judge shall be able to decide all sorts of grievances to the
subjects of his jurisdiction. This will make the district judge more
competent and empowered judicially.
- The limitations to avail themselves of writ benefits because of
geographical remoteness of higher courts and high expenses involved will
- Many issues being faced by the ordinary people including problems in
water supply, electricity connection, and public distribution that are
unattended for years may be promptly addressed if people approach
subordinate courts vested with writ powers. A writ court can be formed for
one or more districts.
- The stature of district judges will be raised if they are empowered to
issue writs against the Collectors, Superintendents of Police and other
Government officials. The district judges in many countries, including
France, are authorized to issue writs against the public authorities of like
- One more additional benefit is that the judicial officers will also get
an opportunity to get accustomed with the writ proceedings and it will help
them as and when they get elevated to the High Court.
It is true that constitutional assembly empowered the constitutional courts only
foe issuance of writs but it is equally true that they kept the article 32 open
by way of clause 3. The circumstances has been changed are we are a nation of
1.4 billion people dependent on merely 24 high courts. In these circumstances,
parliament should come forward to bring the domain of writ within jurisdiction
of district judge also. Though there are certain limitations, but they can be
taken care of at appropriate level after due deliberation with all stakeholders.
Instead of empowering every district court as a writ court, a state may be
divided in 4-5 divisions having district judge as head of each division for
purpose of writs only.
The constitutional matters with interpretations of statutes may be limited to
High courts only.
All matters related to legal rights in which there is need of mandamus or
certiorari may be put under writ jurisdiction of district Court.
The decisions of district court under writ should be final as it is for High
court and appeal should be permitted to high court only after getting fitness of
certificate from District court.
The eligibility criteria for the district judge to be empowered with writ
jurisdiction may be decided by High Court collegiums which may includes years of
service, appraisal reports, records of judicial works among others.
Written By: Hari Mudgil is a Lawyer and Research Scholar