WRIT under Article 226 of indian constitution,1950

AIM:

The main aim of this paper is to give a better understanding about writ petition filed before high court under
article 226 of Indian Constitution

OBJECTIVE:

The objectives are as follows:

1) To Understand the concept of Writ

2) To know the Type of writs

3) To study relevant case laws

HYPOTHESIS:

Writs under Indian law are prerogative writs, a subset of writs, which are issued as an extraordinary remedy
for aggrieved persons. prerogative writs means (official order) directing the behavior of another arm of
government, such as an agency, official, or other court.

RESEACH METHODOLOGY:

This is a Doctrinal form of research where the researcher has solely relied upon secondary form of data and
not the primary source of data.

LIMITATION:

The limitation of this research paper is that due to the time constraint the researcher was unable to gather
the primary source of data and had to infer secondary source of data.

CHAPTERISATION:

CHAPTER 1: INTRODUCTION

CHAPTER 2: RULE OF EXHAUSTION OF REMEDIES

CHAPTER 3: JURISDICTION OF THE HIGH COURT

CHAPTER 4: TYPES OF WRITS

CHAPTER 5: How to File a Writ in the High Court ?

CHAPTER 6: Difference between Writ Jurisdiction of the High Court and the Supreme Court.

CONCLUSION

BIBLIOGRAPHY.

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WRIT under Article 226 of indian constitution,1950

CHAPTER 1:

INTRODUCTION

writs under Indian law.

Writs under Indian law are prerogative writs, a subset of writs, which are issued as an extraordinary
remedy for aggrieved persons. The power to issue prerogative writs has been granted by the
Constitution under Article 266 to the High Courts and to the Supreme Court under Article 32. It is a
discretionary power which means that the High Court may or may not issue a writ.

CHAPTER 2 :

RULE OF EXHAUSTION OF REMEDIES

Exhaustion of Alternative remedies before moving to High Court

A prerogative writ is also known as an extraordinary writ because it is only issued when alternative
remedies have been exhausted. Although this restriction does not extend to the enforcement of
Fundamental Rights. The court has laid down a precedent for the same.

This is known as the rule of exhaustion of remedies. The court has justified the same in the case of
Union of India v. T.R. Varma AIR 1957 SC 882 and held that the rule of exhaustion exists so that a person
is not allowed to circumvent existing statutory proceedings by approaching the High Court under Article
226.Further, the Supreme Court has provided in the cases of U.P. Jal Nigam v. Nareshwar Sahai Mathur
1 SCC 21 and Tigahur Paper Mills Co. Ltd v. State of Orissa 142 ITR 663, certain grounds on which the
court may issue writs even if there are other remedies available. They are as follows:

1. When the remedies provided are not well suited to the situation at hand.
2. When the alternative remedy is inadequate to meet the needs of the case.
3. When there is an unreasonable amount of delay.
4. When there is complete lack of jurisdiction to try the case.

CHAPTER 3:

JURISDICTION OF THE HIGH COURT

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The jurisdiction of the High Courts have also been provided in Article 226 of the Constitution, and they
can be divided into two part:

1. Territorial
The High Courts have the right to issue writs within the territory of the state which the High
Court is concerned with. Under Article 226(2) the court has been granted a certain degree of
extra-territorial jurisdiction as well. High Courts are allowed to issue writs to any government,
authority or person outside their territorial jurisdiction if the whole or part of the cause of action
arises in their concerned state
2. .Subject matter
High Courts have been granted a large ambit to exercise this power. A High Court can issue writs
not only for the enforcement of Fundamental Rights given in Part III of the Constitution but also
non-Fundamental Rights for which the Constitution of India has used the words “for any other
purpose” to widen the scope of High Court’s Jurisdiction.

CHAPTER 4:

TYPES OF WRITS

There are five types of writs which can be issued by the High Courts, but Article 226 has also given the
power to issue other writs if they are of like nature to the five types of writs expressly spelled out in the
Constitution. The types of writs are as follows:

1. Habeas Corpus
Habeas corpus is a Latin term which translate to “you have the body.” This type of writ is used in
cases of illegal detainment and imprisonment. This writ allows the court to direct the detainer to
appear before the court and give a valid reason for the imprisonment or detention. They must
provide proof that it is legal, thus the onus of proof is on the detainer, and he must show proof
of authority to do the same. If the court finds that the person has been illegally detained, it can
order the detainee or prisoner to be set free.
The writ of habeas corpus can be filed in the High Court when a person has been illegally
detained by any public authority. For example, if a person has been detained for an
unreasonable amount of time and without just cause, he may file a writ of habeas corpus.

Scope and Grounds

The court has greatly expanded the scope of this writ as it protects the right to life and liberty. In
the case of Sheela Bharse v. State of Maharashtra AIR 1983 SC 378, the court expanded the
scope of this writ by adjudging that it is not necessary that the detainee should be the petitioner.
An interested party who has some connection with the case may also do so.In the case of Kanu
Sanyal v. District Magistrate AIR 1973, SC 2684 the court held that it is not necessary to produce
before the court the detainee.
2. Prohibition
The writ of prohibition is issued by the High Court to judicial and quasi-judicial bodies, refraining
the said bodies from continuing with any proceeding which is in excess of their jurisdictions. The
writ of prohibition can be issued only when the case is continuing.

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A writ of prohibition can be filed when a court acts not within the limits of their jurisdiction but
beyond its prescribed limitations. For example, if a trial is being heard without the court having
the jurisdiction to do so, a writ of prohibition may be filed.
Scope and Grounds
In the case of Calcutta Discount Co. Ltd. v. ITO AIR 1961 SC372, the Supreme Court held that
when a subordinate court or tribunal is shown decisively that they have acted in excess of their
jurisdiction, the court will issue a writ of prohibition regardless of whether there exists an
alternative remedy or not.
3. Mandamus
Mandamus is a Latin term meaning “to command,” and it is a writ which is issued to any person
or authority who has been prescribed a duty by the law. Mandamus cannot be issued to a
private person or company with private obligations. It also cannot be issued to enforce a private
contract. This writ compels the authority to do this duty. Mandamus does not create a new duty
instead it compels the performance of an already existing duty.
The writ of Mandamus can be filed in when a person does not do the duty that they are
prescribed to do by a statute, common law or custom. For example, when police refuse to take
any action against a criminal, for no reason, a writ of mandamus may be filed.
Scope and Grounds
Like the other prerogative writs, the court has taken on the burden of setting the parameters for
the application of the writ of Mandamus.In the case of, State of West Bengal v. Nuruddin(1998)
8 SCC 143, the Supreme Court held the writ of mandamus is a personal action where the
respondent has not done the duty they were prescribed to do by law. The performance of the
duty is the right of the applicant.
In Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav
Smarak Trust and Ors. v. V. R. R Udani and Ors. AIR 1989 SC 1607, the court held that it is not
necessary that the duty is imposed by statute, mandamus may apply even in cases where the
duty is imposed by common law or custom. The ambit of mandamus is very wide, and it must be
available when an injustice has occurred. It should not be bogged down with too many
technicalities.
4. Quo Warranto
Quo warranto is the Medieval Latin term for “by what warrant” and it is the writ which is issued
directing subordinate authorities to show under what authority they are holding the office. The
writ cannot be issued to a person working in a private field. This writ is issued to a person in an
office, the legality of which is being questioned.
Writ of Quo Warranto can be applied for in situations where a person who has acquired a public
office does not have the right to do so. For example, the writ can be filed if the person holding
the post of Advocate General does not have a legitimate right to it.
Scope and Grounds
In the case of Anand Bihari v. Ram Sahay AIR 1952 MB 31, the court held that the office in
question must necessarily be one which is public.In G. Venkateshwara Rao v. Government of
Andhra Pradesh AIR 1966, SC 828, the court held that a private person may file an application
for a writ of Quo Warranto. It is not required that this person is personally affected or interested
in the case.

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5. Certiorari
Certiorari means “to certify,” and it is a writ which is issued by the High Court to subordinate
judicial or quasi-judicial bodies directing them to transfer the records of a particular case in
order to ascertain whether the court has the jurisdiction to give the order or whether it is
against the principles of natural justice. A writ of certiorari is corrective in nature.
Writ of certiorari can be applied in situations where a court, on passing an order, has gone
beyond their jurisdiction in doing so. For example, when the court passes an order for a case
which they had no power to do so, the aggrieved can apply for the writ of certiorari

Scope and Grounds

The scope of the writ of certiorari has been given in the case of Hari Vishnu Kamath v. Ahmad
Ishaque AIR 1955 SC 233 as follows:
1. When there is an error of jurisdiction.
2. When the court has not given the proper time for both parties to be heard or has violated
principles of natural justice.
3. This writ is supervisory in nature, and thus the High court cannot review the findings of the
lower courts.
4. If the error is evident.What are the different situations when writs can be issued?

Difference between Certiorari and Prohibition

Both in case of certiorari and prohibition, the High Court passes an order directing judicial and quasi-
judicial authorities when in excess of jurisdiction. The difference between the two is given below:

1. A writ of prohibition can only be issued when the case is pending before the court or tribunal.
2. A writ of certiorari is issued after the final order has been passed by the court or tribunal.

CHAPTER 5:

HOW TO FILE A WRIT IN THE HIGH COURT ?

For the purpose of filing a writ petition in the High Court under Article 226 and 227 , a format for the
writ petition is provided by the High Court which must be followed. The following documents need to be
attached along with the writ petition:

1. An affidavit by the petitioner.

2. 1+5 copies of the writ petition.
3. It will also include a prescribed cover page, an index, annexures as may be required as well as a
memo of appearance for which fees are to be paid.
4. After drafting, you can file the petition at the filing counter in court.
5. On the date of hearing, the court will admit the petition and send a notice to the other party.
6. Then, the court will fix another date for the hearing. This will be in the presence of such other
party if it chooses to appear.

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7. An Example of How to File a Writ Petition:

Suppose you are not getting clean and clear Drinking Water in your area.

1) By Going through suprem court Judgement which says that "To get free Drinking water is a
Fundamental Right.

2) Now file writ petition in High Court. Say that you are not getting free drinking supply. Show High Court
judgement which says that Drinking water is fundamental right. Then, show that though you wrote
repeated letters to authority, no one is taking proper steps.

In M.C. Mehta v Kamalnath (1997) the Supreme Court categorically ruled that the State is not only
bound to regulate water supply, but should also help realize the right to healthy water and prevent
health hazards. The principle of Roman Law ‘salus populi est suprema lex‘ (welfare of the people is
paramount law) is the abiding faith in Indian Constitution and the ‘State is assigned a positive role to
help people realize their rights and needs’. In State of Karnataka v State of Andhra Pradesh (2000) the
Court held that the right to water is a right to life, and thus a fundamental right. In Narmada Bachao
Andolan v Union of India (2000) it was held that ‘water is the basic need for the survival of human
beings and is part of the right to life and human rights’. The A.P. High Court, while citing several of the
abovementioned rulings of the Court, reiterated the responsibility of the State in providing clean
drinking water to the citizens in P. R. Subhash Chandran v Government of Andhra Pradesh & Others
(2001). Thus, in the Indian Constitution, providing every citizen with adequate clean drinking water and
protecting water from getting polluted is a fundamental Directive Principle in the governance of the
State as well as a penumbral right under Article 21.

CHAPTER 6:

DIFFERENCE BETWEEN WRIT JURISDICTION OF THE HIGH COURT AND THE SUPREME COURT

The Constitution of India has given the power to issue writs to the Supreme Court in Article 32. This
power is wider in case of High Courts as the Supreme Court has restricted powers when it comes to
issuing writs. The difference is given below:

1. The Supreme Court can issue writs only in case there is a violation of Fundamental Rights.
2. The High Court has a wider scope to exercise this power. They can issue writs not only when
there is a violation of Fundamental Rights but also in other cases.

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Conclusion

The power to grant writs is one of the most important powers granted to the High Courts and the
Supreme court. 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.