CONSTITUTIONAL GOVERNANCE PROJECT

“Judicial Development of Writs”

Date

Submitted to: Submitted by:

NATIONAL LAW UNIVERSITY JODHPUR

 TABLE OF CONTENTS

NATIONAL LAW UNIVERSITY JODHPUR ................................................................................... 1

TABLE OF CONTENTS ........................................................................................................... 2

ACKNOWLEDGEMENT ......................................................................................................... 3

LIST OF ABBREVIATIONS .................................................................................................... 4

INTRODUCTION ..................................................................................................................... 6

HISTORICAL BACKGROUND .............................................................................................. 9

DEVELOPMENT OF PREROGATIVE WRITS ................................................................ 13

Indian Context ...................................................................................................................... 15

HABEAS CORPUS ................................................................................................................. 17

MANDAMUS .......................................................................................................................... 22

PROHIBITION ........................................................................................................................ 27

CERTIORARI.......................................................................................................................... 29

QUO WARRANTO ................................................................................................................. 33

PROCEDENDO (Obsolete) ..................................................................................................... 37

OTHER OBSOLETE WRITS ................................................................................................. 38

CONCLUSION ........................................................................................................................ 40

BIBLIOGRAPHY .................................................................................................................... 41

2
 ACKNOWLEDGEMENT

I would like to take this opportunity to thank all the people who have helped me during the

making of this project and also helped increase my cognizance.

First and foremost, I would like to thank Professor K.L. Bhatia for his support and guidance,

not only during the making of this project but also in understanding the Constitutional Law.

Secondly, I would like to thank the Library Staff for helping me use the library resources to

the fullest during the making of this project.

Finally, I would like to thank my friends and classmates for bestowing me with advice when I

needed it, as well as instilling a sense of competition in me.

3
 LIST OF ABBREVIATIONS

1 AC Appeal Cases

2 AIR All India Reporter

3 AP Andhra Pradesh High Court

4 Att. Attorney

Bullstrode’s Reports, 1609-

5 Bulst 1639 K.B.

Burrow’s Reports, 1757-1771

6 Burr K.B.

7 Cal Calcutta High Court

8 Ch. Chapter

9 Corpn Corporation

10 DLR Dominion Law Reporter

11 Edn. Edition

12 Gau Guwahati High Court

13 HC High Court

14 KB King's Bench

15 Mad Madras High Court

16 Mag. Magistrate

4
 Madhya Pradesh Law

17 MP LJ Journal

18 p. Page no

19 PC Privy Council

20 QB Queen's Bench

21 SC Supreme Court

22 SCC Supreme Court Cases

23 SCR Supreme Court Reporter

24 St. Tr. State Trials

25 Tex Texas

26 v. Versus

27 Ves Vesey’s Reports, 1798-1817

28 Vol. Volume

29 WLR Weekly Law Reporter

5
 INTRODUCTION

A writ is basically a written order issued by a person or body with administrative or judicial

jurisdiction. In the past, a writ was a summons from the Crown, to the parties in the action,

with on its back the substance of the action set out, together with a 'prayer', which requested a

remedy from the court. In the present day context, these bodies are the courts. Writs derive

their origin from Common Law. Originally, it was a written order issued by the King or some

sovereign authority as a command sealed with the Great Seal.

Disobedience of a writ was considered as contempt of the royal authority and punishable as

such.1 Writs were of many types such as, Warrants Subpoenas and Prerogative Writs.

Subpoenas were writs asking people to appear under penalty. Warrants were writs

authorizing officials to carry out tasks and administrative operations. These were also present

in the form of statutes issued by the King and other authorities. Writs have developed and

evolved through the ages. The most prominent type of writs is Prerogative writs. In English

Law Prerogative writs were a class of writs available only to the Crown. They were later

made available to the subjects through judicial bodies like courts. Through this, the Crown

acting through its courts exercised control over inferior courts and public authorities

throughout the kingdom. These writs have been inculcated and imbibed in our country and

are issued on the breach of a citizen’s fundamental rights as per the article 32 of the Indian

Constitution. This project shall trace the Origin and Historical development of writ

jurisdiction under the Crown and the sovereign giving special emphasis to the six prerogative

writs mentioned.

1
Carter, HISTORY OF ENGLISH COURTS, p.25

6
Constitutional law in the United Kingdom is largely governed by the Magna Carta of 1215

and the 1689 English Bill of Rights. India's constitution was designed to be "similar in

principle" to that of the U.K. The highest court in India used to be the British Judicial

Committee of the Privy Council until, the Indian constitution was set up by constituent

assembly2. The project will involve study of case laws mainly from England and India to

trace the various interpretations of the courts with regard to writs. In this project, I intend to

cover the definition and usage of writs right from Common Law to that in the Indian

Constitution.

2
http://www.legalserviceindia.com/constitution/const_uk.htm (last visited on 16-09-2014)

7
8
 HISTORICAL BACKGROUND

The term Writ has changed in usage as regards English documents over the course of the later

medieval period. Being a word of Anglo-Saxon origin, it only refers to English documents in

a strict and literal interpretation of the term. However, documents with similar function were

issued from the royal and papal courts of Europe, referred to as mandates or mandamenta.

The term writ is derived from an Anglo-Saxon word which simply means a letter. In Anglo-

Saxon Charters and Writs formal Latin diplomas were replaced by simpler vernacular

documents around the time of Edward the Confessor. Edward the Confessor is supposedly the

inventor of the English writ. Under Edward the Confessor it developed a very particular

meaning and stylized form and level of formality. There are references to letters from earlier

Anglo-Saxon kings, but none of them survive so we have no idea of what the term refers to in

the earlier period.

As with a charter, a writ was not necessarily addressed to the beneficiary, but was often

addressed to officials who treated it as a public document. Some writs just disappeared out

into the blue to be dealt with and were seen no more. However, a process developed whereby

officials like sheriffs were obliged to present the writ, usually before a royal justice, to ensure

that it had been received and acted upon, and it was returned for filing.

While originally writs were exceptional or at least non-routine devices, Maitland suggests

that by the time of Henry II, the use of writs had become a regular part of the system of royal

justice in England. By the time of Henry II the chancery was churning out multiple copies of

standard writs for certain purposes. These just required filling in of the appropriate names and

the attachment of the seal. Standard government forms go back that far, but it must have been

a hilarious job writing out the multiple copies by hand. At first, new writs could be drafted to

fit new situations, although in practice the clerks of the Chancery would re-use old forms, and

there were many books which were collections of forms of writ, much as in modern times

9
lawyers frequently use fixed precedents or boilerplate, rather than re-inventing the wording of

a legal document each time they wish to create one3.

By the 13th century, the recipients of writs could pay to have them entered on the utterly

modern and innovative system of chancery rolls, to ensure that the contents were archived

and any ensuing benefits from the writ could be confirmed at a later date. This must have left

some bias in the surviving record, as recipients would be more inclined to part with their hard

earned cash to record a benefit in a friendly writ than to enshrine forever the fact that the king

had sent them a few harsh words on some matter or other. The production of writs was not

confined to the monarch. The magnates of the aristocracy also used the form, and sheriffs

sent instructions to their own officials in this way. The terminology of these becomes

entangled and the term writ applies to the form of words in the later middle ages. The only

evidence of any restrictions on the right to bear arms prior to the 16th Century in England

comes from writs sent by Henry V to the sheriffs of (Southamptonshire, Sussex, Dorsetshire

and Wiltshire) on June 2, 14174.

The mode of delivery, either open for public proclamation or closed for private reading,

means that writs can also be classified as letters patent or letters close. At some stage in the

scheme of things, letters between private individuals just become letters. There was

increasing opposition to the creation of new writs by the Chancery. For example, in 1256, a

court was asked to quash a writ as "novel, unheard of, and against reason 5" This resulted in

the Provisions of Oxford 1258, which prohibited the creation of new forms of writ without

the sanction of the King's council. New writs were created after that time, but only by the

express sanction of Parliament and the forms of writ remained essentially static. Each writ

defines a particular form of action. The vernacular of the kings of England was still French.

3
http://medievalwriting.50megs.com/word/writ.htm (last visited on 15-09-2014)
4
http://www.heraldica.org/topics/britain/writ1417.htm (last visited on 16-09-2014)
5
Abbot of Lilleshall v Harcourt, (1256) 96 SS xxix

10
The Carolingian royalty produced documents of similar character called mandamenta, or

mandates, for the issuing of orders or regulations. They disappeared from continental Europe

at the end of the Carolingian era, to reappear around the beginning of the 12th century when

administrative documents were proliferating in all areas. The same term is used for the less

formal variety of papal bull when it was used for issuing orders or instructions.

In the later medieval period, the whole royal administrative process diversified and became

more complex. The writ was one of a number of documents under royal authority, each with

their own particular form and function, which included charters, letters patent, letters close

and warrants. These writs are ancestral to the formal Latin charter and the documents known

as writs in the later Middle Ages in England. While the charter, very ceremoniously and

formally addressed to many people, was a legal document granting land tenure or some other

privilege in perpetuity, the writ became simpler document, addressed to fewer people, of

whom the most important was likely to be the sheriff who was charged with ensuring that the

instructions in the letter were carried out.

The writ of the later middle ages was therefore an official letter from royal authority, either

bestowing a privilege or issuing an instruction. While it was simpler in appearance and

construction than a charter, it retained certain formal characteristics of that class of document.

It was written on a single sheet of parchment, on one side only, was delivered open and was

ratified with the royal seal. Like a charter, it was a public proclamation.

With the abolition of the Forms of Action in 1832 and 1833, there no longer needed to be a

variety of writs, and one uniform of writ came to be used. After 1852, the need to state the

name of the form of action was also abolished. In 1875, the form of writ was altered so that it

conformed more to the subpoena that had been in use in the Chancery. In 1980, the need for

writs to be written in the name of the Crown was ended, from that date a writ simply required

11
the parties to appear. Writs applied to claims that were to be issued in one of the courts that

eventually formed a part of the High Court of Justice. The procedure in a County Court,

which was a creature of statute, was to issue a 'summons'.

In 1999, the Woolf reforms, unified most of the procedure of the Supreme Court and the

County Court in civil matters. Most actions could be begun by the completion of a 'Claim

Form'.

In some Westminster, and some other parliamentary systems, the phrase 'dropping the writ'

refers to the dissolution of government and the beginning of an election campaign to form a

new House. This phrase derives from the fact that in order to hold an election in a

parliamentary system the government must issue a writ of election.

In the pre constitutional era in India, the High Courts of Calcutta, Madras and Bombay

enjoyed the jurisdiction of writs. The jurisdiction was, however, limited territorially as each

High Court could issue a writ not throughout its territorial jurisdiction but only within the

area of the Presidency Town within which it enjoyed an original jurisdiction6. No other High

Court had such powers. This was changed by Article 226 7 and Article 328 of the Indian

6
Jain, Outlines of Indian Legal History, 303-308 (1990)
7
226. Power of High Courts to issue certain writs.—(1) Notwithstanding anything in article 32 every High
Court shall have power, 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, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person
may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the
cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person is not within those territories.
(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other
manner, is made on, or in any proceedings relating to, a petition under clause (1), without—
(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim
order; and
(b) giving such party an opportunity of being heard,
makes an application to the High Court for the vacation of such order and furnishes a copy of such application
to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose
of the application within a period of two weeks from the date on which it is received or from the date on which
the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day
of that period, before the expiry of the next day afterwards on which the High Court is open; and if the

12
constitution. Writs were incorporated in the India Constitution for enforcement of

Fundamental Rights.

DEVELOPMENT OF PREROGATIVE WRITS

Blackstone defined writ as a mandatory letter from the King in Parliament, sealed with his

great seal, directed to the Sheriff of the Country wherein the injury is committed or supposed

to be, requiring him to command the wrongdoer or party accused, either to do justice to the

complainant, or else to appear in Court, and answer the accusation against him.” 9
Corpus

juris secundam 10
defines writ as “a judicial instrument by which the court commands some

act to be done by the person to whom it is directed.”

The term prerogative writ is well known wherever the language of the Common Law is

spoken, no lawyer has been able to give a satisfactory answer to the question: What is a

prerogative writ? However, as the name indicates, it is a writ especially associated with the

King. These are writs which were originally issued only at the suit of the King but which

were later on made available to the subjects also. They were called “prerogative” because

they were conceived as being intimately connected with the rights of the Crown11. It was

considered the prerogative of the King to grant certain writs. A prerogative writ was issued

only on probable cause of being shown to the satisfaction of the court that why extraordinary

application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the
expiry of the said next day, stand vacated.
(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the
Supreme Court by clause (2) of article 32.
8 Article 32- Remedies for enforcement of rights conferred by this Part.—(1) The right to move the
Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) 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.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by
law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.
9
Blackstone, COMMENTARIES, Vol. III, Cl.18.
10
Vol. 101, p. 636
11
Corpus Juris Secundum, Vol. 72, p.488

13
power of the crown is required to be exercised in favour of the applicant. It was called a

“prerogative writ” since it was issued by the crown as a fountain of justice, where no

statutory source of redress and the crown used to issue orders by way of his prerogative12.

In the words of Dicey, prerogative writs are the Bulwark of English Liberty. For thereby

individual rights are safeguarded even without the declaration that they are fundamental.

Under English Law, there are two types of writs:

i) Judicial procedural writs, such as writ of summons, writ of motion, etc., which are used as

a matter of course; and

ii) Substantive writs, often described as “High Prerogative Writs”, such as, writ of habeas

corpus, mandamus, prohibition, certiorari, quo warranto, etc.13

The origin of the word can be traced to the political inclinations of certain Royalist judges in

the seventeenth century who were keen to associate the benefit remedy of habeas corpus with

the King’s personal solicitude for the welfare of his subjects.14 Mansfield and Blackstone

were then, responsible if not for the invention of the term, at least for its acceptance into a

lawyer’s vocabulary.

There are six main prerogative writs namely,

 Habeas Corpus
 Mandamus
 Prohibition
 Certiorari
 Quo warranto
 Procedendo (Obsolete Writ)

12
Pollock & Maitland, HISTORY OF ENGLISH LAW, 2nd Edn., p. 661
13
Rupa Ashok Hurra v, Ashok Hurra, (2002) 4 SCC 388, 398: AIR 2002 SC 1771
14
de Smith, JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, 5th Edn, p. 618

14
In the Indian scenario, it is the prerogative of the judiciary to grant certain writs. But the
principles which governed the writ still apply, to, as it is expressly mentioned in Arts 32 and
226

Indian Context

The position in India relating to exclusion of judicial review is somewhat similar to the one
prevailing in America. In both the countries, there exists a Charter of fundamental rights
guaranteed under the written Constitution, and those rights cannot be whittled down by any
theory of administrative finality. All the three organs of the State (Legislature, Executive and
Judiciary) derive their powers from the written constitution and they have to act within the
limits of such power15. The judiciary has been made interpreter of the Constitution and has
been assigned the delicate task to determine what is the power conferred on each branch of
the Government and to ensure that it does not transgress such limits. It is for the judiciary to
uphold the constitutional values and to enforce constitutional limitations. That is the essence
of rule of law. The judicial review is conferred on the Judiciary by Articles 32 and 226 of the
Constitution which render the administrative finality impossible16.

 The Indian judiciary is empowered to issue the first five types of prerogative writs
under Article 32 of the Indian Constitution.
Writ Jurisdiction under Article 226: A very significant aspect of the Indian
Constitution is the jurisdiction it confers on the High Courts to issue writs. The writs
have been among the great safeguards provided by the British Judicial System for
upholding rights and liberties of the people. It was an act of great wisdom and
foresight on the part of the Constitution makers to introduce the writ system in India,
and thus constitute High Courts into guardians of the people’s legal rights. Under
Article 226(1), a High Court is empowered to issue directions, orders or writs,
including writs in the nature of habeas corpus, prohibition, quo warranto and
certiorari.

 The scope of Art 226 cannot be curtailed or whittled down by the constitution. A
finality clause in a statute is no bar on the High Court’s jurisdiction under Article
22617. The language in Article 226 does not make the High Courts obliged to follow

15
Minerva Mills v. Union of India, (1980) 3 SCC 625
16
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225
17
Srikant K Jithuri v. Corp of Belgaum AIR 1965 SC 845; Kartar Singh v. State of Punjab (1994) 3 SCC 549

15
 all procedural technicalities of the English Law related to writs, or changes of judicial
opinions from case to case there, but should keep to the broad and fundamental
features of these writs as followed by English Law. A petition is not merely thrown
out because a proper writ is not prayed for18. Supreme Court has given expansive
interpretation to Art 226 over time. Writ Jurisdiction is not appellate but supervisory
in nature.
 Article 226 operates “notwithstanding anything in Article 32” Thus, Article 226 and
Article 32 exist independently of each other. Article 226 is in wider scope than
Article 32. Under Article 32 the Supreme Court may issue writs for the enforcement
of Fundamental Rights only. When a Fundamental Right is not infringed, only
Article 226 and not Article 32 can be invoked.

18
Kanu Sanyal v. District Mag., AIR 1973 SCC 2684

16
 HABEAS CORPUS

The concept of this writ essentially originated in England & to issue appropriate writ was

always considered to be a prerogative of the crown. One of such important prerogative writs

originated in England is known as the writ of Habeas Corpus. The writ of habeas corpus

means 'To have the body'. It is a writ issued to a detaining authority to produce the detained

person in court to know cause for detention. If the detention is found to be illegal, the court

issues an order to set the person free.

The writ is often referred to in full in legal texts as habeas corpus ad subjiciendum. The

name derives from the opening formula of the writ in medieval times and means "(You

should) have/produce the body to be subjected to (examination)." The full name of the

writ is used to distinguish it from similar ancient writs19:

Habeas corpus ad deliberandum et recipiendum ("(You should) have the body to deliberate

and retire")

Habeas corpus ad faciendum et recipiendum, also known as habeas corpus cum causa

("(You should) have the body when there is a case at law")

Habeas corpus ad prosequendum ("(You should) have the body to prosecute")

Habeas corpus ad respondendum ("(You should) have the body to answer")

Habeas corpus ad satisfaciendum ("(You should) have the body until it is sufficient (to let

him/her go)")

Habeas corpus ad testificandum ("(You should) have the body to bear witness")

19
A.H. Carpenter, HABEAS CORPUS IN THE COLONIES, The American Historical Review, Vol. 8, No. 1
(October 1902), pp. 18-27.

17
Blackstone cites the first recorded usage of Habeas corpus in 1305, in the reign of King

Edward I. Winston Churchill, in his chapter on the English Common Law in The Birth of

Britain, explains the process thus: “Only the King had a right to summon a jury. Henry

accordingly did not grant it to private courts...But all this was only a first step. Henry also

had to provide means whereby the litigant, eager for royal justice, could remove his case out

of the court of his lord into the court of the King. The device which Henry used was the royal

writ...and any man who could by some fiction fit his own case to the wording of one of the

royal writs might claim the King's justice.”

The procedure for the issuing of writs of habeas corpus was first codified by the Habeas

Corpus Act 167920, following judicial rulings which had restricted the effectiveness of the

writ. A previous act had been passed in 1640 to overturn a ruling that the command of the

King was a sufficient answer to a petition of habeas corpus.

Then, as now, the writ of habeas corpus was issued by a superior court in the name of the

Monarch, and commanded the addressee to produce the prisoner before the Royal courts of

law.

The writ of Habeas corpus has always been looked upon as an effective means to ensure

release of the detained person from the prison. It must be emphasized that the primary

purpose of the writ is & was to inquire into the legality of the detention .However, even when

writ of habeas corpus is issued, it does not automatically exonerate the detained person from

liability. It merely ensures his release from the prison & it does not have any bearing on his

guilt or otherwise21.

20
Helen A. Nutting, THE MOST WHOLESOME LAW--THE HABEAS CORPUS ACT OF 1679, The American
Historical Review, Vol. 65, No. 3 (April 1960), pp. 527-543
21
R.F.V.Heuston, ESSAYS IN CONSTITUTIONAL LAW, Universal, 2nd Edn., 1999, p.108

18
The right of habeas corpus or rather, the right to petition for the writ—has long been

celebrated as the most efficient safeguard of the liberty of the subject. Dicey wrote that the

Habeas Corpus Acts "declare no principle and define no rights, but they are for practical

purposes worth a hundred constitutional articles guaranteeing individual liberty". In most

countries, however, the procedure of habeas corpus can be suspended in time of national

emergency22.

Petitions for habeas corpus could be made by the prisoner himself or by a third party on his

behalf and as a result of the Habeas Corpus Acts could be made regardless of whether the

court was in session, by presenting the petition to a judge. Habeas Corpus writ has been

frequently used in a number of cases by various courts.

In the Sommersetts case23 , writ of habeas corpus was issued to secure the release of slaves

from an illegal detention where the black slave Somersett was ordered to be freed, the famous

words being quoted from an earlier case: "The air of England has long been too pure for a

slave, and every man is free who breathes it."

In Ex.P. Daisy Hopkins24, writ of habeas corpus was used to release a young lady who had

been detained by the Vice Chancellor of Cambridge University to a local prison known as the

Spinning House for walking in the streets with a member of the University. Therefore writ of

habeas corpus goes a long way in providing an effective remedy in case of unjustified

detention by the detaining authority.

The right of habeas corpus has been suspended or restricted several times during English

history, most recently during the 18th and 19th centuries. Although internment without trial

has been authorised by statute since that time, for example during the two World Wars and

22
http://www.constitution.org/cmt/avd/law_con.htm (last visited on 17-09-2014)
23
(1772) 20 St.Tr.1
24
(1891) 61 L.J.Q.B. 240

19
the Troubles in Northern Ireland, the procedure of habeas corpus has in modern times always

technically remained available to such internees. However, as habeas corpus is only a

procedural device to examine the lawfulness of a prisoner's detention, so long as the detention

was in accordance with an Act of Parliament, the petition for habeas corpus would be

unsuccessful.

Since the passage of the Human Rights Act 1998, the courts have been able to declare an Act

of Parliament to be incompatible with the European Convention on Human Rights. However,

such a declaration of incompatibility has no immediate legal effect until it is acted upon by

the government.

The Indian judiciary in a catena of cases has effectively resorted to the writ of habeas corpus

mainly in order to secure release of a person from illegal detention. Personal liberty has

always been considered a cherished value in India & the writ of habeas corpus protects that

personal liberty in case of illegal arrest or detention. As personal liberty is so important, the

judiciary has dispensed with the traditional doctrine of locus standi. Hence if a detained

person is not in a position to file a petition, it can be moved on his behalf by any other person.

Habeas Corpus is issued in cases of unlawful detention. Detention may be unlawful if inter

alia it is not according to a procedure established by law, or the procedure established by law

is not strictly followed or the law is invalid because it infringes a Fundamental Right, or the

Legislature enacting it exceeds its limits25. Detention should not contravene Article 22. A

person not produced before a district magistrate within 24 hours is entitled to be released.26

The judiciary while going one step further has also dispensed with strict rules of pleadings.

The increasing scope of writ of habeas corpus may be explained with the help of following

cases decided by the Indian judiciary.

25
State of Bihar v. KP Verma AIR 1965 SC 575
26
Infra at 21

20
In the case of Anwar v. State of Jammu and Kashmir27 it was held that a foreigner who

enters India secretly cannot be granted freedom of movement and keeping him in custody

cannot be illegal28. The court may grant interim bail while dealing with a habeas corpus

petition29.

In Kanu Sanyal v. District Magistrate30, while enunciating the real scope of writ of habeas

corpus, the Supreme Court opined that while dealing with a petition for writ of habeas

corpus, the court may examine the legality of the detention without requiring the person

detained to be produced before it.

In Sheela Barse v. State of Maharashtra31, while relaxing the traditional doctrine of locus

standi, the apex court held that if the detained person is unable to pray for the writ of habeas

corpus, someone else may pray for such writ on his behalf.

In Nilabati Behera v. State of Orissa32, the Orissa police took away the son of the petitioner

for the purposes of interrogation & he could not be traced. During the pendency of the

petition, his dead body was found on railway track. The petitioner was awarded

compensation of Rs. 1, 50, 000.

In Malkiat Singh v. State of U.P33 , the son of a person was allegedly kept in illegal custody

by the police officers. It was established that the son was killed in an encounter with the

police. The court awarded Rs. 5, 00,000 as compensation to the petitioner. In this manner,

writ of habeas corpus has been used effectively by the judiciary for protecting personal

liberty by securing the release of a person from illegal custody.

27
1971 3 SCC 104
28
AIR 1971 SC 337
29
State of Bihar v. Rambalak Singh, AIR 1966 SC 1441
30
AIR 1973 SC 2684.
31
AIR 1983 SC 378
32
AIR 1993 SC 1960
33
AIR 1999 SC 1522

21
 MANDAMUS

The writ of mandamus is of a very ancient origin, dating back at any rate to the times of

Edward II34. Godiand's case, referred to in Widdrington's case35, and R. v. Askew36, seems to

tell that originally to have been one of that large classes of writs by which the Sovereign of

England directed the performance of any desired act by his subjects, the word "missive" in

such writs and letters, having given rise to the present name of the writ. These letters,

missives or mandates to which the generic term mandamus was applied were in no sense

judicial writs but were merely commands issuing directly from the sovereign to the subject

without the intervention of the court.

The writ in the shape of these commands, however, became obsolete at a very early stage and

gradually it came to be confined to the judicial writ issued by the King's Bench which has by

steady growth developed into the writ of mandamus, which is, in general, a command issuing

in the King's name from the Court of King's bench and directed to any person, corporation or

inferior court of jurisdiction within the King's Dominions requiring them to do some

particular thing therein specified which appertains to their office and duty, and which the

Court of King's bench has previously determined, or at least supposes to be a consonant to

right and justice. It is high prerogative writ of a most extensive remedial nature... And issues

in all cases where a party has a right to have anything done, and hath no other specific means

of compelling its performance37.

Mandamus is a command issued by a court commanding a public authority to perform a

public duty belonging to its office38. Normally, a writ of mandamus does not issue to, or an

order in the nature of mandamus is not made, against the private individual. It is not

34
Godiand's case, referred to in Widdrington's case, 1 Lev and R. v. Askew, 4 Burr 2186
35
1 Lev
36
4 Burr 2186
37
Blackstone, HIGH ON EXTRAORDINARY LEGAL REMEDIES, Sec. 1, 3 Com 100
38
Guruswami v. Mysore, AIR 1954 SC 592

22
necessary that the person or the authority on whom the statutory duty is imposed be a public

official or an official body. A mandamus can issue, for instance, to an official of a society to

compel him to carry out the terms of the statute under or by which the society is constituted

or governed and also to companies or corporations to carry out duties placed on them by the

statutes authorizing their undertakings.

A mandamus would be equally applicable for a company constituted by a statute for the

purposes of fulfilling public responsibilities. The court to which the application for the issue

of mandamus is made will not constitute itself a court of appeal from the decision of the

administrative authority and will not examine the correctness or otherwise of a decision on

merits.

The purpose of mandamus is to remedy defects of justice. It lies in the cases where there is a

specific right but no specific legal remedy for enforcing that right. It also lies in cases where

there is an alternative remedy but the mode of redress is less convenient, less beneficial or

less effectual. Generally, it is not available in anticipation of any injury except when the

petitioner is likely to be affected by an official act in contravention of a statutory duty or

where an illegal or unconstitutional order is made. The grant of mandamus is a matter for the

discretion of the court, the exercise of which is governed by well-settled principles39.

Mandamus, being a discretionary remedy, the application for that must be made in good faith

and not for indirect purposes. Acquiescence cannot, however, bar the issue of mandamus.

The petitioner must, of course, satisfy the Court that he has the legal right to the performance

of the legal duty as distinct from mere discretion of authority40.

39
Gangadhar Narsingdas Agrawal v. Union of India AIR 1967 Goa 142 (147); Regional Director v. AS
Bhangoo, (1969) 73 Cal. WN 267; Megh Nath v. Director, Technical Education, UT Chandigarh, 1990 (1) RSJ
126
40
Basantilal v. Laxminarayan, 1970 MPLJ (Note) 6

23
A mandamus is normally issued when an officer or an authority by compulsion of statute is

required to perform a duty and which despite demand in writing has not been performed. In

no other case will a writ of mandamus issue unless it is to quash an illegal order.

Alternative Mandamus: A mandamus issued upon the first application for relief, commanding

the defendant either to perform the act demanded or to appear before the court at a specified

time to show cause for not performing it.

Peremptory Mandamus: An absolute and unqualified command to the defendant to do the act

in question. It is issued when the defendant defaults on, or fails to show sufficient cause in

answer to, an alternative mandamus.

Continuing Mandamus: In Vineet Narain v. Union of India41, a Mandamus was issued to a

lower authority in general public interest asking the officer or the authority to perform its

tasks expeditiously for an unstipulated period of time for preventing miscarriage of justice.

Where the right of the petitioner desires to enforce is the performance of a duty of public

character, it cannot be discretionary at all where the duty is ministerial and there is no other

remedy42. In such cases Mandamus is issued.

Indian Law: The sine qua non for mandamus is the existence of a statutory public duty

incumbent upon the person or body against whom the mandamus is sought. There must

equally co-exist a corresponding right in the petitioner entitling him to claim the enforcement

of such public duty. These two preconditions form the foundation for the issue of mandamus.

The primary scope and function of mandamus is to "command" and "execute" rather than to

"enquire" and "adjudicate". It cannot be issued to change the decision of a body so as to suit

41
AIR 1996 SC 3386
42
R. v. Bishop of Sorum (1916) 1 KB 466

24
the petitioner. Obligations which are not of statutory nature cannot be enforced by

mandamus43.

Government of AP v. Puniparthi Narayana Rajiu44 it was held that: A writ petition is not

maintainable when a remedy provided for under Code of Civil Procedure is the available and

therefore, the High Court cannot entertain writ petitions for mandamus and pay an enhanced

compensation account as was demonstrated in the instant case. Here, though compensation

was enhanced by an order, the Government had failed to deposit the amount within

reasonable time which compelled the claimants to file writ petitioner for a mandamus since

the requisite time. The petitioners were directed to approach the executing Court for

appropriate relief.

In the case of State of Haryana v. Chaman Mal45 it was held that a party seeking Mandamus

must first call upon the authority concerned to do justice by performing its legal obligation

and show that it has refused or neglected to carry it out within a reasonable time before

applying to a court for mandamus even where the alleged obligation is established.

Vice chancellor, Utkal University v. SK Ghosh46, The exercise of administrative discretion is

not interfered upon by the court, but it will do so if there has been an illegal exercise of the

discretion. There is an illegal exercise of discretion where:

 The order is made without, or in excess of jurisdiction

 The order made is mala fide

 The authority is influenced by extraneous consideration.

43
R.P. Kapoor v. Delhi Development Authority
44
2002 Andhr. LT. 113 at pp. 113, 114
45
AIR 1976 SC 1654
46
AIR 1954 SC 217: 1954 SCR 883

25
A mandamus cannot be given to violate any law. The court can issue mandamus only to

direct the authority to use its discretion according to law47.

47
State of Haryana v. Naresh Kumar Bali (1994) 4 SCC 448

26
 PROHIBITION

Prohibition is one of the oldest writs known to law. A writ of Prohibition is a writ directed to

an inferior court or tribunal forbidding such court or tribunal from continuing proceedings in

excess of its jurisdiction or in contravention of the law of the land.48

Originally this writ was used only by the King’s Bench to limit the jurisdiction of the

Ecclesiastical Courts, but later on, it was used by the Common Law Courts as a useful

weapon in their battles with the Chancery Courts which are more closely associated with the

Crown.49

In England Prerogative writs, by the very nature of their origin in the royal prerogative, are

considered and treated as discretionary in nature. English experience, however, shows that

the subject has a right to demand them in certain circumstances. As Willies, J. said in London

Corporation v. Cox, “The writ of prohibition at suit of a party is not as it was thought to be

by eminent Judges at the close of the seventeenth century in the discretion of the court.50”

In Jackson v. Beaumont51 it was asserted that a writ of prohibition to restrain judges from

further proceeding in a matter over which he has no jurisdiction is a writ of right. The writ far

from being discretionary was deemed grantable ex debito justitiae52

The jurisdiction for the grant of a writ of prohibition is primarily supervisory and the object

of that writ is to restrain courts or inferior tribunals from exercising a jurisdiction which they

do not possess at all or else prevent them from exceeding the limits of their jurisdiction. In

other words, the object is to confine the courts or tribunals of inferior or limited jurisdiction

48
Halsbury’s Laws of England, (4th Edn.), Vol. II, p. 802; Prabodh Verma v. State of UP, (1984) 4 SCC 251
49
Halsbury’s Laws of England, (4th Edn.), Vol. XI, pp. 137-138
50
London Corporation v. Cox, 1867 LR HL 239
51
(1855) 156 ER 844
52
Woodward v. Bonithan (1961) 83 ER 2

27
within their bounds.53Thus when an inferior court takes up for hearing a matter over which

has no jurisdiction, the person against whom the proceedings are taken can move the superior

court for a writ of prohibition and on that, an order will issue forbidding the inferior court

from continuing the proceedings.54

A writ of Prohibition is issued, if a judicial authority or an administrative one discharging

quasi-judicial functions exceeds its jurisdiction, or tries to exercise a jurisdiction not vested in

it55. Prohibition has much common with certiorari. Both the writs are issued with the object

of preventing the inferior courts from exceeding their jurisdiction.

Difference between prohibition and certiorari: When an inferior court takes up for hearing

a matter over which it has no jurisdiction , the person against whom the proceedings are

taken, can move to the superior courts for a writ of prohibition, and on that an order will issue

forbidding the inferior court from continuing the proceedings. Prohibition is issued to prevent

the court to proceed further.

Prohibition and certiorari lie only against judicial and quasi-judicial bodies. They do not lie

against public authority in an executive or administrative capacity or a legislative body56.

53
Govinda Menon v. Union of India (1967) 2 SCR 566 : Cox v. Mayor of London (1867) 2 HC 239
54
Hari Vishnu Kamath v. Ahmed Ishaque (1955) 1 SCR 1104
55
East India Commercial Co. Ltd. v. Collector of Customs, AIR 1962 SC 893
56
Forrest G. Ferris, EXTRAORDINARY LEGAL REMEDIES, 1926.

28
 CERTIORARI

Writ of Certiorari was in the past issued in England by the King’s Court to certify to the

King, if in a given case brought before it a lower court or tribunal had acted properly without

exceeding its jurisdiction. The court would send for the record of the case, look into it and

would issue the writ. If it found that the lower court had exceeded it jurisdiction, or had

abused its power, or had otherwise acted wrongly57.

Certiorari is a legal term in Roman, English and American law referring to a type of writ

seeking judicial review. Certiorari which also means "to be ascertained" is the present

passive infinitive of Latin certioro, a contraction of certiorem facere58, Certioro was a highly

technical term appearing only in jurisprudential Latin, most frequently in the works of

Ulpian, who favored it over the facere form.

In Roman law, an action of Certiorari was suggested in terms of reviewing a case as much as

the term is applied today, although the term was also used in writing to indicate the need or

duty to inform other parties of a court's ruling. The term "Certiorari" is often found in Roman

literature on law but applied in a philosophical rather than tangible manner when concerning

the action of review of a case or aspects of a case.

Compared to its other counterparts, Certiorari has perhaps to a greater extent maintained its

status as a prerogative writ. In the Anglo Saxon system of administering justice the Norman

conquest introduced less change than the other branches of the government. While in

administrative matters the Early Norman Kings were absolute, the administration of justice

was the same.

57
Samuel Valentine, In re, 2 ID (CS), James Pattle, In re, ID (CS) 828
58
to ascertain, lit. to make certain

29
In English law, certiorari is a public law relief59. An order of certiorari is given by a senior

court to quash a decision of a lower court or other (quasi)-governmental organizations.

Historically, certiorari was a prerogative writ used to direct a lower court or tribunal to certify

for review the "record" in the case. The use of certiorari in the UK is declining, due to the

changes to the remedies available for judicial review.

In certiorari, where the tribunal acts without jurisdiction or in excess of it and it is the

aggrieved party who seeks the remedy and his conduct has been such that it does not

disentitle him to the relief, it can be safely asserted that certiorari is also ex debito justitiae60

In such cases alternative remedy is no bar at all. It is issued have been analysed, discussed

and examined by the courts over the years61.

In the case of Qualitex Co. v. Jacobson Products Company, Inc., the Petitioner, the Qualitex

Company that had been using a special shade of green-gold colour to the dry cleaning press

pads that it had been manufacturing since 1950's registered its colour as a trademark in year

1991 after the respondent Jacobson Products (a Qualitex rival) began to use a similar shade

on its own press pads in 1989. Qualitex added a trademark infringement count to the suit that

it had previously filed challenging Jacobson's use of the green-gold colour on the press pads.

Qualitex won in the District Court. Then the writ of certiorari was filed in the United States

Supreme Court by Qualitex Co.

Indian Law: In India, the writ could earlier be issued by the Presidency Supreme Courts

within the limits of the Presidency Towns, Madras, Calcutta and Bombay62. The nature and

scope of the writ and the conditions under which the propositions which have been laid down

by judicial legislation include the following:

59
i.e. something for which you ask the court in order to deal with an action of the Government, council or other
(quasi)-governmental organisation.
60
Halsbury’s Laws of England, 4th Edn., Vol. 1, para 162, p.157
61
Hindustan Steel v. A.K. Roy, AIR 1970 SC 1401
62
Ryotts of Garbando v. Zamindar of Parlakemidi, AIR 1942 PC 162

30
 The writ is issued for correcting the error of jurisdiction or for curbing the abuse of

jurisdictions

 It is also issued when a lower court or tribunal commited an error of law manifest on

the record, or it has acted mala fide.

 If issued, it quashes an illegal or improper order due to above reasons.

 By issuing it the Court acts in exercise of a supervisory jurisdiction, and not in any

appellate, or revision jurisdiction, and

 The writ is not issued for declaring an Act/Ordnance as unconstitutional. 63

Over time, courts have been expanding the horizons of Natural Justice.64 Thus certiorari has

been issued to authorities dealing with licensing of liquor shops65, passing the order of

confiscation or imposing penalties under the Sea Customs Act 66, tax assessment

proceedings67, cancellation of examination results of a candidate or expulsion of a student by

a University68, an enquiry commission under the Commissions Enquiry Act,69 industrial

tribunals70, election tribunals71, dismissal from service72, or removal from membership of a

body73, cancellation of a licence74, requisitioning of property for a public purpose75, or an

enquiry committee.76

63
Prabodh Verma v. State of UP AIR 1985 SC 167
64
Ridge v. Baldwin (1963) 2 WLR 935
65
Nagendra v. Commissioner, Hill Division AIR 1958 SC 398
66
Sewpujanrai v. Customs Collector AIR 1958 SC 398
67
K.T. Moopil Nair v. State of Kerala AIR 1970 SC 150
68
Board of High School v. Ghanshyam AIR 1962 SC 1110
69
State of Jammu and Kashmir v. Bakshi Ghulam Mohd. AIR 1967 SC 122
70
Kirloskar Electric Co. v. Their Workmen AIR 1973 SC 2119
71
DurgaShankar v. Raghuraj AIR 1954 SC 520
72
State of Orissa v. Dr Binapani AIR 1967 SC 1269
73
State of Punjab v. Bakhtawar Singh AIR 1972 SC 2083
74
Mahabir Prasad Santosh Kumar v. State of Uttar Pradesh AIR 1970 SC 1302
75
Madan Gopal v. District Magistrate AIR 1972 SC 2656
76
Union of India v. M.B. Patnaik AIR 1981 SC 858

31
In the case of Spring Meadows Hospital v. Haroj Ahluwalia77 it was held that, the District

Consumer Forum, the State Consumer Forum as well as the National Commission constituted

by the Consumer Protection Act, 1986, have adjudicatory powers and also have same

“trappings of a court”. These bodies can therefore be regarded as tribunals and thus, subject

to certiorari.

In the case of Ranjit Thakkar v. Union of India78, it was held that Certiorari can be issued

under Art 226 to a court martial. A Court Martial is not subject to the High Court’s

superintendence under Article 227.

The Supreme Court has emphasized that a writ in the nature of Certiorari is a wholly

inappropriate relief to ask for when the constitutional validity of a legislative measure is

being challenged. In such a case, the proper relief to ask for would be a declaration that a

particular law is unconstitutional and void. If a consequential relief is thought necessary, then

a writ of mandamus may be issued restraining the state from enforcing or giving effect to the

provisions of the law in question.79

77
AIR 1998 SC 1801
78
(1987) 4 SCC 611
79
Supra Note 55

32
 QUO WARRANTO

Originally, the writ of quo warranto, which means ‘by what warrant?’ was a writ of right for

the King against the subject who claimed or usurped any office, franchise or liberty, to

inquire by what authority he supported his claim, in order to determine the right.80 In its

earliest days in England, it might be a court's order to someone acting as the sheriff to prove

the king had actually appointed him to that office.

At a later period the King’s Coroner began exhibiting information in the nature of quo

warranto at the instance of private persons but this power was restricted81, and after the

decision in R. v. Hertford Corpn82 the King’s Coroner did not exhibit information without the

order of the court. Since83 the writ which was passed to render information in the nature of

quo warranto was more speedy and effectual and for the more easy trial of the rights of

offices, franchises and boroughs, the remedy was extended to private prosecutors subject to

the discretion of the court to grant or refuse information.

Why the writ fell into disuse and when the practice of filing information in the nature of quo

warranto grew up, cannot be said certainly, but the practice of filing information by the

Attorney-General in lieu of the writ, is very ancient84.

The decisions given by the courts became difficult to reconcile, and therefore in Darley v.

R85, the House of Lords summoned the judges to give their opinion. The House of Lords

adopted the opinion given by Tindal C.J. who said: “After the consideration of all cases and

dicta on this subject, the result appears to be, that is proceeding by Information in the nature

of quo warranto will lie for usurping any office, whether created by charter alone, or by the

80
Blackstone, COMMENTARIES, 8th ed., Vol. 3, p. 262
81
4 and 5 Will. & Mar., c. 18
82
(1699) 1 Ld. Raym, 91 E.R. 1183
83
9 Anne, c. 20
84
Darley v. R, (1846) 12 Cl. & F. 520: 8 E.R. 1513.
85
(1846) 12 Cl. & F. 520: 8 E.R. 1513.

33
Crown with the consent of Parliament, provided the office be of public nature, and a

substantive office, not merely the function or employment of a deputy or servant held at the

will and pleasure of others86”. “An information in the nature of a quo warranto took the place

of the obsolete writ of quo warranto which lay against a person who claimed or usurped an

office, franchise, or liberty, to inquire by what authority he supported his claim, in order that

the right to the office or franchise might be determined. It also lay in cases of non-user,

abuse, or long neglect of a franchise.”87

The arguments of counsel and the judgment of the Lord Reading C.J. in R. v. Speyer88

contain valuable historical material showing the evolution of quo warranto into information

in the nature of quo warranto. Lord Reading C.J. held this case to establish that: “Whereas

formerly a quo warranto was held to lie only where there was an usurpation of a prerogative

of the Crown or of a right of franchise, a proceeding by the information in the nature of quo

warranto has long since been extended beyond that limit and is a remedy available to private

persons within the limits stated by Tindal C.J. and subject always to the discretion of the

Court to refuse or grant it.89”

It would thus be seen that if these proceedings are adopted subject to the conditions

recognized in that behalf, they tend to protect the public fro usurpers of public office; in some

cases, persons not entitled to public office may be allowed to occupy them and to continue to

hold them as a result of the connivance of the executive or with its active help, and in such

cases, if the jurisdiction of the courts to issue writs of quo warranto is properly invoked, the

usurper can be ousted and the person entitled to the post allowed to occupy it. It is thus clear

that before a citizen can claim a writ of quo warranto, he must satisfy the court, inter alia,

86
R. v. Speyer (1916) 1 K.B. In his argument in the Speyer Case the Att. Gen. said of the above passage “that
has always been since recognized to have been a correct statement of the law.”
87
HALSBURY’S LAWS OF ENGLAND, Vol. XI, 3rd ed., p.45
88
(1916) 1 K.B. 595, 608-10
89
R. v. Speyer, (1916) 1 K.B

34
that the office in question is a public office and is held by usurper without legal authority, and

that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper

has been made in accordance with law or not.”90

Indian Law We have seen that the writ of quo warranto was replaced in England, first by

information in the nature of quo warranto, and then by an injunction accompanied, if

necessary, by an order declaring the office vacant. Decided cases show that the description of

the writ of quo warranto given in Halsbury has been frequently cited with approval. In India,

the writ lies only in respect of a Public Office of a substantive character91. The writ calls upon

the holder of a public office to show the court under what authority he holds that public

office.

In University of Mysore v. Govinda Rao92 the Sup. Ct. quoted the following passage from

Halsbury’s Laws of England: “An information in the nature of a quo warranto took the place

of the obsolete writ of quo warranto which lay against a person who claimed or usurped an

office, franchise, or liberty, to enquire by what authority he supported his claim, in order that

the right to the office or franchise might be determined.” And observed that: “….the

procedure of quo warranto confers jurisdiction and authority on the judiciary to control

executive action in the matter of making appointments to public offices against the relevant

statutory provisions; it also protects a citizen from being deprived of public office to which

he may have a right.

90
HALSBURY’S LAWS OF ENGLAND, Vol. 11, 3rd ed., p.145.
91
Ram Singh Saini v. HM Bhargava, AIR 1975 SC 1852
92
(1964) 4 S.C.R. 576

35
In Bheema Raju v. State of Andhra Pradesh93 the appointment of a government pleader was

quashed because the procedure prescribed in the relevant rules for appointment had not been

followed.

In the case of Purushottam Lal v. State of Rajastinsthan94, a petition was filed against the

Chief Minister of Rajasthan on the grounds that he was not validly elected. The Rajasthan

High Court rejecting the petition ruled that quo warranto may be issued by a member of the

public if the Chief Minister holds office without lawful authority, and in breach of any

constitutional provision. Such a question can be raised only through an election petition.

In RK Nokulsana Singh v. Rishang Keising95 no writ of quo warranto is issuable against the

Council of Ministers on the ground that it does not command majority of the House. So long

as it enjoys the pleasure of the Governor, no writ can be issued.

In the case of YS Rajashekhara Reddy v. N Chandrababu Naidu96, it was held that no quo

warranto can be issued against the Chief Minister on non-performance of a Constitutional

Duty. The Council of Ministers is collectively responsible to the state assembly. This writ

only lies against a public authority of substantive character.

93
AIR 1981 AP 24
94
AIR 1979 Raj 18
95
AIR 1981 Gau 48
96
AIR 2000 AP 142

36
 PROCEDENDO (Obsolete)

In common law jurisprudence, procedendo is one of the prerogative writs. It is a writ that

sends a case from an appellate court to a lower court with an order to proceed to judgment.

"The writ of procedendo is merely an order from a court of superior jurisdiction to one of

inferior jurisdiction to proceed to judgment. It does not in any case attempt to control the

inferior court as to what that judgment should be."97

The writ of procedendo ad judicium was the earliest remedy for the refusal or neglect of

justice on the part of the courts. It was an original writ, issuing out of chancery to the judges

of any subordinate court, commanding them in the king's name to proceed to judgment, but

without specifying any particular judgment. In case of disobedience or of neglect on the part

of the judges to whom it was addressed, or refusal by them to act, they were liable to

punishment for contempt.

Inherently, the most important limitation on this jurisdiction is that the writ of mandamus is

not a proper remedy to control or direct the decisions of inferior courts in matters wherein

they have judicial cognizance and discretion. In other words, so far as the writ affects the

action of inferior courts, its use is not to be extended to compel the rendition of a particular

judgment, in accordance with the views of a higher court.98 It corresponds to certiorari,

except that certiorari is a higher court's order to a lower court to send the record of a case to

it for appellate review.99 The writ of Procedendo was used by Chancery courts to compel

inferior courts and tribunals to proceed to judgment and to restore jurisdiction. It was thus

opposite to the writ of prohibition100

97
State ex rel. Davey v. Owen, 133 Ohio St. 96: 106 (Ohio 1937).
98
In re Press Printers & Publishers, Inc., 12 F.2d 660: 664 (3d Cir. 1926)
99
http://experts.about.com/e/p/pr/procedendo.htm (last visited on 17-09-2014)
100
CORPUS JURIS SECUNDEM, Vol. 72, p. 971

37
 OTHER OBSOLETE WRITS

SCIRE FACIAS

Scire facias means you cause to know. The writ was used for the purpose of rescinding royal

grants, charter and franchises. Proceedings under scire facias were taken when charter has

been obtained by fraud or misrepresentation or charter has been obtained by fraud or

misrepresentation or charter had been granted by the crown under mistake or

misapprehension101

NE EXEAT REGNO

It was a writ restraining or preventing the subject from leaving the kingdom or realm. It was

issued as of a course when applied on behalf of the Crown. The writ now seems to be

obsolete as a weapon of the Crown. But it is still in use by subjects (ordinary litigants) as a

remedy to prevent a debtor from absconding, if the applicant can show that the debtor’s

absence from the realm would materially prejudice him. It might also prove useful in public

law as a means of preventing an immigrant being deported before his application to the court

has been decided. Thus, it is another instance of conversion of Crown’s legal armoury into a

remedy beneficial to the subject, like a writ of habeas corpus. Finally, it can be used at the

time of war or serious national emergency.102

DE NON PRECEDENDO REGE INCONSULTO

By this writ, the king intervened to withdraw from the cognixance of the Common Law

Courts proceedings in which he claimed to have an interest. Use of the writ by James I in

101
Eastern Archipelago Company v. R (1853) 2 E&B 856
102
Tomlinson v. Harrison (1802) 8 Ves 32

38
Brownlow case103 was successfully resisted by Coke and his colleagues that resulted in a

clash between the two. After Coke’s dismissal, the remedy fell into insignificance104

AD QUOD DAMNUM

This of ad quod damnum writ was a writ of right and was issued when a landholder was

dissatisfied with the assessment of damages by a Condemnation Commission105

RESTITUTION

This writ of restitution was issued to restore a party to the possession of property of which he

had been wrongfully deprived by a writ or order of the same court106

CORAM NOBIS

The object of this writ was to bring before a court rendering the judgment, matters of fact not

appearing on record, and which, if known at a time, the judgment was rendered, would have

prevented its rendition.107

DE RATIONABILI PARTE BONORUM

By the use of this writ, the wife and children used to recover reasonable share in the property

of the husband and father, bequeathed away without record to their rights.108

PERAMBULATION

This writ was issued when both the parties to the litigation were in doubt as to the extent of

their respective estates. It was directed to Sheriff to set the bounds and limits of the estate.109

103
(1615) 3 Bulst 32
104
de Smith: JUDICIAL REVIEW OF ADMINISTRATIVE ACTION, 4th Edn., p. 115
105
CORPUS JURIS SECUNDEM, Vol. 101, p. 637
106
Supra at p. 638
107
People v. Union Trust Bank, 95 NE 2nd 532
108
Hopkins v. Wright, 17 Tex 30; Crain v. Crain, 17 Tex 80

39
EVOCATION

A writ of evocation is frequently used by Canadian Courts where there is want or excess of

jurisdiction, violation of rules of natural justice or where the statute under which proceedings

were taken is unconstitutional. It is thus like a writ of certiorari.110

CONCLUSION

An evaluation and study of the Origin and Development of Writs right from the 13th Century

when the Magna Carta was signed to the English Bill of Rights to the various Constitutional

interpretations of the five prerogative writs the provisions of which are made in Articles 226

and 32 of Indian Constitution, shows that their meaning and definitions have changed greatly.

Not only has the power to issue writs shifted from the King to the judiciary, these writs are

now exercised as a remedy in case of infringement of a fundamental right. Of the numerous

writs that used to be issued, only five writs are relevant in the Indian context due to changes

over the course of time. Most of the writs though they bear the names of their ancestors, have

moved far from their original meaning when they used to be exercised. This shows that the

Indian Constitution has been heavily modeled based on English Constitutional Law. Their

relevance in the Indian Context is great. Indian courts have interpreted these writs based on

the Indian Scenario and in the Light of the Fundamental Rights enshrined in Part III of the

Constitution of India. In the light of the discussion of these writs in the preceding pages, it

can be seen that the concept of “writ” has indeed come a long way from when it evolved ages

back. It may be noticed at this point that the role of the King has largely been replaced by the

Judiciary with the emergence of democracy in the world.

109
CORPUS JURIS SECUNDEM, Vol. 101, p.637
110
Supermarches Jean Labreque v. Labour Court (1988) 43 DLR 1

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Brownlow case……………………………………………………………….(1615) 3 Bulst 32

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Hindustan Steel v. A.K. Roy……………………………………………… AIR 1970 SC 1401

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Hopkins v. Wright………………………………………………………………. 17 Tex 30

In Bheema Raju v. State of Andhra Pradesh……………………………….. AIR 1981 AP 24

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K.T. Moopil Nair v. State of Kerala………………………………………… AIR 1970 SC 150

Kanu Sanyal v. District Mag …………………………………………… AIR 1973 SCC 2684

Kartar Singh v. State of Punjab…………………………………………… (1994) 3 SCC 549

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Madan Gopal v. District Magistrate……………………………………… AIR 1972 SC 2656

Mahabir Prasad Santosh Kumar v. State of Uttar Pradesh…………… AIR 1970 SC 1302

Malkiat Singh v. State of U.P……………………………………………… AIR 1999 SC 1522

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Minerva Mills v. Union of India………………………………………………1980 2 SCC 591

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People v. Union Trust Bank …………………………………………………… 95 NE 2nd 532

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Prabodh Verma v. State of UP……………………………………………… AIR 1985 SC 167

Purushottamlal v. State of Rajasthan…………………………………………AIR 1979 Raj 18

R. v. Heathcote………………………………………………………………………… 10 Mad 57

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R. v. Speyer…………………………………………………………………………. (1916) 1 K.B

Ram Singh Saini v. HM Bhargava …………………………………………AIR 1975 SC 1852

Ranjit Thakkar v. Union of India…………………………………………… (1987) 4 SCC 611

Regional Director v. AS Bhangoo…………………………………… (1969) 73 Cal. WN 267

Ridge v. Baldwin…………………………………………………………… (1963) 2 WLR 935

RK Nokulsana Singh v. Rishang Keising………………………………….. AIR 1981 Gau 48

R.P. Kapoor v. Delhi Development Authority…………………………… 1987 Sup SCC 319

Rupa Ashok Hurra v, Ashok Hurra……………………………………… (2002) 4 SCC 388

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Samuel Valentine, In re,……………………………………………………………… 2 ID (CS)

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Sheela Barse v. State of Maharashtra……………………………………… AIR 1983 SC 378

Somersett’s case……………………………………………………………… (1772) 20 St.Tr.1

43
Spring Meadows Hospital v. Haroj Ahluwalia………………………… AIR 1998 SC 1801

Srikant K Jithuri v. Corp of Belgaum……………………………………… AIR 1965 SC 845

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Books

Dr. Durga Das Basu, Introduction to the Constitution of India (Wadhwa and co., Nagpur, 19th

Edn. 2004)

V. G. Ramachandran, Law of Writs (Vol. I, Eastern Book Company, 6th Edn, 2006)

V.N. Shukla, Constitution of India (Eastern Book Company, 10th Edn 2004)

44
Prof. Dr. M.C. Jain Kagzi, The Constitution of India, (Vol. II, India Law House, New Delhi,

6th Edn. 2004)

H.M. Seervai, Constitutional Law of India (Vol-3, Universal Law Publishing Co. Pvt. Ltd,

Lucknow, 4th Edn, 2005)

Lord Hailsham of St. Marylebone, Halsbury’s Laws of England, 4th Edn.,

Websites

www.google.com

www.yahoo.com

www.lexis-nexis.com

http://www.amazon.com/gp/product/1587785056

http://www.courtinfo.ca.gov/forms/fillable/ej130.pdf

http://www.heraldica.org/topics/britain/writ1417.htm

http://en.allexperts.com/e/w/wr/writ.htm#hd1

https://www.student.gsu.edu/~jdavis23/Extraordinary2.htm#ee

http://medievalwriting.50megs.com/word/writ2.htm

http://medievalwriting.50megs.com/word/writ.htm

http://daikoku.ebis.ne.jp/tr_set.php?argument=MC76WbSa&ai=24740

http://rds.yahoo.com/_ylt=A0geurJ7epFFWKQAFpNXNyoA;_ylu=X3oDMTFhaGpxbnU3B
GNvbG8DZQRsA1dTMQRwb3MDMTAEc2VjA3NyBHZ0aWQDTUFQMDA3XzExNA--
/SIG=1218lqd6f/EXP=1167248379/**http://www.encyclopedia.com/doc/1E1-writ.html

www.britannica.com/eb/article-9077568/writ

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writ.news.findlaw.com

http://www.courtinfo.ca.gov/forms/documents/ej130.pdf

writ.lp.findlaw.com

http://www.legalserviceindia.com/constitution/const_uk.htm

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