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CHAPTER-I
INTRODUCTION
I
CONSTITUTION
WHICH,
CONSTITUTION
-
JUSTICE BHAGWATI
According to justice Bhagwati judicial Review basically is an aspect of judicial power of
the state which is exercised by the courts to determine the validity of a rule of law or an action of
any agency of the state. In the legal systems of modern democracies it has very wide
connotations. The judiciary plays a very important role as a protector of the constitutional values
that the founding fathers have given us. They try to undo the harm that is being done by the
legislature and the executive and also they try to provide every citizen what has been promised
by Constitution. All this is possible because of the power of judicial review.
Hence the scope of judicial review before Indian courts has evolved in three dimensions
firstly, to ensure fairness in administrative action, secondly to protect the constitutionally
guaranteed fundamental rights of citizens and thirdly to rule on questions of legislative
competence between the centre and the states. The power of the Supreme Court of India to
enforce these fundamental rights is derived from Article 32 of the Constitution. It gives citizens
the right to directly approach the Supreme Court for seeking remedies against the violation of
these fundamental rights. This entitlement to constitutional remedies is itself a fundamental right
and can be enforced in the form of writs evolved in common law such as Habeas corpus (to
direct the release of a person detained unlawfully), Mandamus (to direct a public authority to
do its duty), Quo Warranto (to direct a person to vacate an office assumed wrongfully),
prohibition(to prohibit a lower court from proceeding on a case) and Certiorari (power of the
higher court to remove a proceeding from a lower court and bring it before itself). Besides the
RESEARCH METHODOLOGY
PROBLEM/ ISSUE:-
Analyzing and comparison the differences between writ of mandamus and writ of
certiorari. In the outlook of status and power of these two writs against other writs and the
importance of these two writs in the principal of judicial review
RATIONALE:The results of this study would check the utility of these two writs of mandamus
and writs of Certiorari in judicial review, as in absence, there will be no one to secure the
Constitutional limitations which are quite necessary in a system of limited government.
HYPOTHESIS:-
1) Judicial review and approaches of Supreme court And High court through writs served the
purpose of acting as a limitation on the authority of the public officials.
2) In countries adhering to the principle of legislative supremacy the scope of writs is somewhat
limited in the sense that the review power of the courts is confined to the review of
administrative actions.
3) The country like India or U.S.A which is having written constitution or federal type has wider
scope writs than the county like U.K
5
Judicial review in India is practiced in respect of any kind of State action, such as
legislative action, the administrative action or the judicial action, the research paper is limited up
to the remedies of judicial review. The research methodology used for the present research article
is traditional Doctrinal research method. As most of the information can be sought form the
available literature. So the researcher has chosen doctrinal method as method of research for the
present article and has used books, journals, research articles for preparation of the same.
LIMITATION:-
Although the research paper has reached its aims, there are stated the approaches of these
remedies to the courts by the help of various type of writs. For the sake of convenience and for
detail study, the researcher has limited the present topic to the characteristic from writs of
Mandamus and writs of Certiorari.
CONTRIBUTION:-
I have contributed more than 50 case law to present my topic and my general idea over
the Writs and there taken as a whole aspect of Judicial review and producer behind approach
these writs in general.
6
CHAPTER -II
WRITS
DEFINITION OF WRITA writ, in common law, is a formal written order, specifically issued by a body with
judicial or administrative jurisdiction; in modern times, these bodies are typically a court system.
As a result of this definition, all warrants, subpoenas and prerogative writs are common forms of
writs. The word Writ means a written document by which one is summoned or required to do or
refrain from doing something.1 Historically writ originated and developed in British legal system
As defined by Blackstone,-Writ is a mandatory letter from the king-in- parliament, sealed with his great seal, and
directed to the Sheriff of the country wherein the injury is committed or supposed so to be
requiring him to command the wrongdoer or party caused either to do justice to the complainant,
or else to appear in court and answer the accusation against him.
In India Article 32 and 226 of the Constitution gives power to the Supreme Court and High Court
to issue writs in case of breach of Fundamental rights of any citizen by the state. By such writs
the Judiciary can control the administrative actions and prevent any kind of arbitrary use of
power and discretion.
There are 5 kinds of writs
- Mandamus
1 Md. Abdul Halim, Constitution, Constitutional law and politics: Bangladesh perspective, 3rd ed.
(Dhaka: CCB Foundation, 2006
3 Ibid
6 Milsom, S. F. C. Historical Foundations of the Common Law (second edition). Butterworths 1981.
ISBN 0-406-62503-4
10
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 Articles 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.
A writ means an order. A warrant is also a type of writ. Anything that is issued under an
authority is a writ. In this sense, using the power conferred by Article 32, the Supreme Court
issues directions, orders or writs. As we know that Article 32(3) confers the power to parliament
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15
16
18
2003(1)SCC 6.
17
21
20
1993 2 SCC 746
22
21
1995 Supp (3) SCC 434.
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26
1. The scope of article 226 is wider than article 32. the parties first seek relief in the high court
and should come to the supreme court in appeal only
2. Hearing of the case at the level of high court is more convenient to the parties. it saves lot of
time.
3. the high court has its own tradition. they have eminent judges, whose capacity should be
utilized.
4. Every high court has good bar. There eminent lawyers with wide experience, handle different
kind of cases. They know history of every legislation in their state.
5. The Supreme Court has no time to decide cases pending before it for the last 10 to 15 years,
with the present strength of judges and will take more than 15 years to dispose of all pending
cases.
6. If the cases are filed in the high court the task of supreme court acting as an original court
which is time consuming can be avoided.
24
1987, 4 SCC 609
27
CHAPTER-III
WRITS OF MANDAMUS
Mandamus is a Latin word, which means "We Command". Mandamus is an order from a
superior court to a lower court or tribunal or public authority to perform an act, which falls
within its duty.
DEFINITION OF MANDAMUS
Mandamus according to Black's law dictionary, Ninth Edition
"A writ issued by a court to compel performance of a particular act by lower court or a
governmental officer or body, to correct a prior action or failure to act."
Mandamus according to Wharton's Law Lexicon, 15th Edition, 2009
28
The applicant must have a legal right to the performance of a legal duty 28. It will not
issue where to do or not to do an act is left to the discretion of the authority 29. It was
refused where the legal duty arose from an agreement which was in dispute. The duty
to be enforced by a writ
26
Article 226
27
Article 32
28
Dr. Rai Shivendra Bahadur v, Governing Body of the Nalunda College, A.I.R. 1962
S.C. 1210.
29
Controller of Monghyr v. Keshav Prasad, A.I.R. 1962 S.C. 1694; State of U.P. v.
Manbodhanlal, A.I.R. 1957 S.C. 912: (1958) S.C.R. 533. T.G. Gaokar v. R.N. Shukla,
A.I.R. 1968 S.C. 1050; Rajalakshmiah v. State of Mysore, A.I.R. 1967 S.C. 993
31
46
Guruswami v. State of Mysore, A.I.R. 1954 S.C. 592
34
CHAPTER-III
WRITS OF CERTIORARI
Literally, Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme
Court to some inferior court or tribunal to transfer the matter to it or to some other superior
authority for proper consideration. The Writ of Certiorari can be issued by the Supreme Court or
any High Court for quashing the order already passed by an inferior court. In other words, while
the prohibition is available at the earlier stage, Certiorari is available on similar grounds at a later
stage. It can also be said that the Writ of prohibition is available during the tendency of
proceedings before a sub-ordinate court, Certiorari can be resorted to only after the order or
decision has been announced.
In Province of Bombay v/s Khushaldas48
In this case it was held that whenever any body of person having legal authority to determine
questions affecting the rights of subjects and having the duty to act judicially acts in excess of
their legal authority, a writ of certiorari will lies. it does not lie to remove merely ministerial act
or to remove or cancel executive administrative acts. Writ lies on Judicial bodies one of the
fundamental principles in regard to the issuing of a writ of certiorari is that the writ can be
48
AIR 1950 SC 22
36
51
BIBLIOGRAPHY
Lucknow.
Dr. Jha, C.D., Judicial Review of Legislative Acts, (II Edition, 2009), Lexis Nexis
Company, Lucknow.
Dr. Pandey, J.N., Constitutional Law of India (XXXXIII Edition, 2006) Central Law
Agency, Allahabad.
43
Sharma Kanahaiyalal, Reconstitution of the Constitution of India (2002), Deep and Deep
44