Вы находитесь на странице: 1из 10



Submitted by:
Niharika Mantoo
2nd Year, BA LLB (Hons)
Writ jurisdiction is enjoyed only by the Supreme Court and High Courts
under Article 32 and 226 of the Constitution, respectively. A writ petition
can only be filed against the State and not against private individuals or
organisation. A writ is issued by the court, in general, against the State.
Under their writ jurisdiction Supreme Court and High Courts issue
appropriate writs in the nature of Habeas Corpus, Mandamus, Prohibition,
Certiorari, and Quo Warranto.

This writ is used to protect individual's liberty. It is issued when a person is
detained illegally and wrongfully. This writ can be filed before the court by
any individual or organization, not necessarily the aggrieved individual.
This writ can be issued by the court both against the State and individual.
Habeas Corpus literally means 'to have the body' i.e. physically producing
the person whose detention is questioned before the court in order to
enable the court to ascertain the grounds of detention. However, if all the
material facts relating to the detention of the person are made available to
the court, the court may not insist upon the physical production of detained
person. When the court finds the detention illegal or unlawful, it will order
the release of the person henceforth.
It directs a person, usually a prison warden, to produce the prisoner and jus
tify the prisoner'sdetention. If the prisoner argues successfully that the inca
rceration is in violation of a constitutional right, the court mayorder the pri
soner's release. Habeas corpus relief also may be used to obtain custody of a
child or to gain the release of adetained person who is insane, is a drug addi
ct, or has an infectious disease. Usually, however, it is a response toimpriso
nment by the criminal justice system.
The writ of habeas corpus is an extraordinary remedy because it gives a cou
rt the power to release a prisoner after theprisoner has been processed thro
ugh the criminal justice system, with all its procedural safeguards and appe
als. For thisreason, the burden is initially on the petitioning prisoner to pro
ve that he or she is being held in violation of a constitutionalright. If the pet
itioner can meet this burden with sufficient evidence, the burden then shift
s to the warden to justify theimprisonment.

1. A.D.M Jabalpur v. S.S. Shukla

The case:

The main question of the case was whether, under presidential

orders the high court could entertain a writ of Habeas corpus filed by
a person challenging the ground for his decision. The arguments in
supreme court began on December 14 , 1975 , before a bench
consisting of chief justice of India A.N. Ray , Justice H.R. Khanna
,Justice M.H. Beg , Justice Y.V. Chandrachud , and Jusice P.N.
Bhagwati . They were considered the most respectable and wise
judges of the supreme court at that time.The attorney general of
india, Niren De began his arguments in his powerful voice, almost
terrorizing the court, much like the governments rule at that time . No
questions were asked until Justice Khanna asked , Life is also
mentioned in Article 21. Would government arguments extend to it
also? Niren De didnt seem to be hassled by this rather
uncomfortable question and answered swiftly saying , Even if life was
taken away illegally, courts are helpless.

Arguments on behalf of the State:

The main contention of the state was that the sole purpose and aim of
the emergency provisions in the constitution is that they guarantee
special powers to the executive to hold complete discretions over the
implementation of the laws and rights of the country. The reason
behind this was that during an emergency the considerations of the
state assume supreme importance. The central argument put forth by
the state was that once the right to move to any court was suspended
in context to Article 14, 21 and 22 , the detained person had no right
to approach the court regarding the same; by which logic their writ
petitions would have to be dismissed. They highlighted the fact that
Emergency provisions in part XVIII of the Indian constitution
including Article 358 , Article 359(1) and Article 359(1A) are
constitutional necessities and imperatives of the constitution as the
military and economic security of the nation preceded everything
else. The validity of the law as stated in the presidential order under
article 359(1) cannot be challenged on the ground of violating a
fundamental right which was suspended by the above mentioned
Article in the first place.

Arguments on the behalf of the respondent:

There were seven major arguments put forth by the respondents. The
first argument interpreted the States argument as the non existence
of any right to live and liberty during an emergency. It went on to
clarify that in this regard, Article 358 was more extensive as the
fundamental rights is suspended as a whole where as Article 359 does
not suspend any fundamental right. Secondly the main aim of Article
359(1) was to prohibit moving the Supreme Court under Article 32 for
the enforcement of certain rights. This prohibition of law has no effect
on the enforcements of common law and statutory rights of personal
liberty in the High Court under Article 226 of the the Indian
Constitution. Thirdly, even though Article 359 (1) grants special and
almost unlimited powers to the executive for dismissing part III of the
Constitution, it does not undermine the essential component of the
Sovereignty of the separation of the powers, leading to the system of
checks and balances and limited power of the executive. The
suspension of fundamental rights and its enforcement was not meant
to tip the scales in favour of the executives vis a vis the individuals,
fourthly, the presidential orders imposed were valid only with respect
to the fundamental rights and did not extend to the Natural law,
Common law or Statutory Law. Fifthly, the equation of the State and
the executives highly erroneous. The only consequence of the
suspension of the fundamental rights or their enforcement is that the
legislature can create laws which go against the said fundamental
rights and the executives can implement them. Sixthly, the executives
can act for and against its cititzens only to the extend set by the
valid laws.

2) Smt.Chawali vs State Of U.P.And Ors

Sri Jaideep Narain Mathur, learned amicus curiae has dedicated his
written submission that the jurisdiction as per the High Court Rules
and roster was not with the learned Single Judge, yet the learned
Single Judge was a Judge of the High Court and the High Court has
authority to pass orders in a habeas corpus petition. Hence the orders
passed should be saved by taking recourse to the doctrine of De-facto.
He has however tried to distinguish one of the judgments in this
regard, namely, that of Pandurang Vs. State of Maharastra, AIR 1987
SC Page 535 on the ground that the case was not dealing with
a habeas corpus matter under Article 226 and arose out of a criminal
appeal that had been filed under the Codr of Criminal Procedure read
with the Bombay High Court Rules. He contends that the Apex Court
in the said decision found that there was inherent lack of jurisdiction
as the rights of persons to the dispute were being adversely affected
and, therefore, the said authority in the case of Pandurang (supra)
was not an authority on the issue of an order lacking in patent
jurisdiction or latent lack of jurisdiction. He submits that all rules or
procedure are the handmaid of justice and procedural law cannot in
any way take away the power of the Court to exercise authority, and
accordingly in the absence of a patent lack of jurisdiction, the orders
passed by the learned Single Judge should be upheld.

The Allahabad High Court Rules, as presently involved, was in
question in the said case which provides that a matter of private
detention in a habeas corpus petition would be cognizable by a
learned Single Judge. In that case a division bench had summoned
the records of a private detention habeas corpus petition and had
proceeded to decide the matter, and having found the allegations to
be incorrect had dismissed the petition with costs. The question that
arose was that if the matter was of private detention, could the
division bench have heard the matter in view of the express bar and
categorization assigning the jurisdiction to a bench of a learned Single
Judge under the rules. While answering the said issue raised, the
Apex Court held as under :-

A perusal thereof leaves no room for doubt that

a habeas corpus petition against a private custody was to be placed
before a Single Judge and not before the division bench while in
the case of custody other than a private custody
a habeas corpus petition has to be placed before the division bench.

In the present case the aforesaid rule has been violated as held
hereinabove and the conclusions drawn are clearly supported by the
aforesaid dictum of the Apex Court

Mandamus :
This petition can be filed before the court only by the aggrieved
individual. It can be filed only when the legal right of the person is
violated. Private rights can't be enforced through the petition of
Mandamus. It can be issued by a court only against a public authority
or a person holding a public office. It cannot by issued against an
individual or private organisation. It is issued when a public authority
or officer is charged with a legal duty and he/she has failed to
perform the duty which has resulted in the violation of a legal rights
of the petitioner. Mandamus literally means 'command', therefore
when it is issued it commands a public authority or officer to do or
not to do something which is in the nature of his/her public duty.
This writ can't be issued against President and Governors.


1. Tapendranath roy v University of Calcutta

It is interesting to note that in this case the writ of mandamus was
issued by the court for not only to compel (directing) the authority to do
something but also to restrain it from doing something. In the present case,
the writ was issued against the University to restrain it from giving effect to
an order passed in violation of its own rules.
Quo warranto:

A legal proceeding during which an individual's right to hold an off

ice or governmental privilege is challenged.Statutes describing quo w
arranto usually indicate where it is appropriate. Ordinarily it is prope
r to try the issue of whether apublic office or authority is being abused
. For example, it might be used to challenge the unauthorized
practice of a
profession, such as law or medicine. In such situations, the challenge
is an assertion that the defendant is not qualified tohold the position s
he claimsa medical doctor, for example.

In some quo warranto proceedings, the issue is whether the defendan

t is entitled to hold the office he claims, or to exercisethe authority he
presumes to have from the government. In addition, proceedings hav
e challenged the right to the position ofcounty commissioner, treasur
er, school board member, district attorney, judge, or tax commissione
r. In certain jurisdictions,quo warranto is a proper proceeding to chall
enge individuals who are acting as officers or directors of business cor

A prosecuting attorney ordinarily commences quo warranto proceedi

ngs; however, a statute may authorize a private personto do so withou
t the consent of the prosecutor. Unless otherwise provided by statute,
a court permits the filing of aninformation in the nature of quo warra
nto after an exercise of sound discretion, since quo warranto is an ext
raordinaryexercise of power and is not to be invoked lightly. Quo warr
anto is not a right available merely because the appropriate legaldocu
ments are filed. Valid reason must be indicated to justify government
al interference with the individual holding thechallenged office, privil
ege, or license.



A writ that a superior appellate court issues in its discretion to an i

nferior court, ordering it to produce a certified record of aparticular c
ase it has tried, in order to determine whether any irregularities or err
ors occurred that justify review of the case.

Certiorari is an extraordinary prerogative writ granted in cases that ot

herwise would not be entitled to review. A petition forcertiorari is ma
de to a superior appellate court, which may exercise its discretion in a
ccepting a case for review, while anappeal of a case from a lower court
to an intermediate appellate court, or from an intermediate appellate
court to a superiorappellate court, is regulated by statute. Appellate re
view of a case that is granted by the issuance of certiorari is sometime
scalled an appeal, although such review is at the discretion of the app
ellate court.

A party, the petitioner, files a petition for certiorari with the appellate
court after a judgment has been rendered against him inthe inferior c
ourt. The petition must specifically state why the relief sought is unav
ailable in any other court or through anyother appellate process, alon
g with information clearly identifying the case and the questions to be
reviewed, the relevantprovisions of law to be applied, a concise state
ment of facts relating to the issues, and any other materials required
bystatute. The rules of practice of the appellate court to which the peti
tioner has applied for relief govern the procedure to beobserved. For e
xample, a petition for statutory certiorari made to the Supreme Court
of the United States must be prefacedby a motion for leave, or permis
sion, to file such a petition. If a common-law writ is sought, however,
the petitioner needonly file a petition for certiorari.

After evaluating the petition, the appellate court will decide whether t
o grant or deny certiorari. Certiorari is issued,designated as "cert. gra
nted," when the case presents an issue that is appropriate for resoluti
on by the court and it is in thepublic interest to do so, such as when th
e issue has been decided differently by a variety of lower courts, there
by creatingconfusion and necessitating a uniform interpretation of th
e law.


This writ can be issued only against a judicial or quasi-judicial body

and not against non-judicial bodies. This petition can be filed only by
the aggrieved individual. This writ is issued when a judicial/quasi-
judicial body takes up a case for hearing in excess or in absence of its
the Writ of prohibition means to forbid or to stop and it is popularly
known as 'Stay Order'. This writ is issued when a lower court or a
body tries to transgress the limits or powers vested in it. The writ of
prohibition is issued by any High Court or the Supreme Court to any
inferior court, or quasi judicial body prohibiting the latter from
continuing the proceedings in a particular case, where it has no
jurisdiction to try. After the issue of this writ, proceedings in the
lower court etc. come to a stop.