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WRIT JURISDICTION: WHICH MAKES INDIAN JUDICIARY INDEPENDENT

MANISHEK KUMAR SING,  CITY ACADEMY LAW COLLEGE

INTRODUCTION:

Abstract declarations of Fundamental rights in the Constitution are useless, unless there is the means to make them effective. The power of the courts to enforce obedience to the fundamental rights again depends not only upon the impartiality and independence of Judiciary, but also upon the effectiveness of the instruments available to it to compel such obedience against the Executive or any other authority.

WHAT IS WRITS?

In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; it is often described as a formal order issued by a government authority in the name of sovereign power.

ORIGIN OF WRITS

Originally, the concept of writs originated from the English Judicial System and was created with the folk courts-moots to the common law courts. It was passed by the King’s Bench in England. At that time it was designated as royal order.

ORIGIN IN INDIA

In India writs were introduced by the Regulating Act, 1773 under which the Supreme Court was established in Calcutta. The charter also introduced High Courts and these High Courts had analogous power to issue writ as successor to the Supreme Court. The writ jurisdiction of both the courts was limited to their original civil jurisdiction which they enjoyed under Specific Relief Act, 1877.

CONSTITUTIONAL PROVISIONS 

The Constituent assembly of India while drafting the constitution of India had adopted the very feature of British Judicial System and mentioned it in our constitution in the name of Constitutional remedies in Article 32 and Article 226. The aim behind introducing the writ in our Constitution is only and only to ensure the existence of Fundamental rights for all the person and citizen of Country. It basically act as a constitutional machinery which helps in enforcing the Fundamental rights.

Constitution of India provides the special power of issuing writs to Supreme Court and High Court in the nature of:

  • Habeas Corpus 2)Mandamus  3)Prohibition  4)Certiorari  5) Quo-Warranto               

These writs are basically known as the prerogative writs.

  • WRIT OF HABEAS CORPUS
  • Meaning: –

It basically says that “You should have the body”. The basic aim behind this is to ensure “the legality of Detention” and if wrong person is detained then with immediate effect “Release of Person from illegal detention”.

  • Scope:-
  1. Through this particular Writ Hon’ble High Court and Supreme Court make an order calling upon the person who has been detained to produce before the court.
  2. To know what was the basis of arrest or detention.
  • If it is found that the reason behind the arrest or detention is invalid and not based on Principle of Legality then the detained or arrested person is set free.
  • Cases related to it: –
  • Kanu Sanyal vs. District Magistrate

The court may examine the legality of the detention without requiring the person detained to be produced before it.

  • Sheela Barse vs. State of Maharashtra

If the detained person is unable to pray for the writ of Habeas Corpus, someone else may pray for such writ on his behalf.

 

 

  • WRIT OF MANDAMUS
  • Meaning: –

It is a court order commanding an inferior court or public authority to perform an official duty correctly and honestly.

  • Grounds on which this writ can be issued:
  • Acted against the law
  • Exceeded his limits of Power
  • Acted with mala fides
  • Abused his discretionary powers
  • Did not performed the duty with proper and relevant consideration
  • Cases related to it: –
  • Hemendra vs. Gauhati University

Mandamus was issued to direct a University to announce that the petitioner has passed where; University had refused so to declare though the petitioner had obtained the pass marks required by the statutory rules of the university.

 

 

 

  • Barada Kanta vs. State of West Bengal

Writ of Mandamus cannot be issued against individual person or any private organization because they are not entrusted with a public Duty.

 

  • WRIT OF PROHIBITION
  • Meaning:

It is basically given in order to command “stay orders”. It is an extra ordinary prerogative writ which is preventive in nature.

  • Grounds : –
  • It is issued in case where there is excess of Jurisdiction and where there is absence of Jurisdiction.
  • When proceeding regarding some matters are pending in Court.
  • Issued by both HCs and SCs to an inferior court or Quasi-Judicial body but not against legislative or administrative body.
  • Cases related to it: –
  • East India Commercial Co. Ltd vs. Collector of Customs

A writ of Prohibition was issued to an inferior tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land.

 

  • WRIT OF CERTIORARI
  • Meaning: –

Certiorari is a latin word being in the passive form of the word “Certiorare” meaning to inform. Like the writ of Prohibition certiorari is also Judicial in nature as it is issued against a Quasi- judicial authority. It is both preventive as well as Curative in nature.

  • Grounds: –
  • It is issued to correct the errors of Jurisdiction.
  • When court or Tribunal acts illegal in its Jurisdiction.
  • Order against Principle of Natural Justice.
  • To remove error in the decision or determination it may also be amenable to a writ of Certiorari.
  • Case Laws: –
  • Hari Vishnu Kamath vs. Ahmed Ishaque (AIR 1955 SC 233)

In this case the grounds for issuing the particular writ is defined that grounds are mentioned above.

  • Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & ors., (1958) SCR 1240

The parameters for the exercise of Jurisdiction was decided that are:

  1. Check whether inferior court has exceeded its Jurisdiction.
  • WRIT OF QUO-WARRANTO
  • Meaning: –

It basically means “what is your authority”. Quo-warranto writ is issued against the person of Public who occupies the public seat without any qualification for the appointment. It is used to restrain the authority or candidate from discharging his duty off that public office.

  • Grounds: –
  • Public office created by a statue.
  • Person to be appointed by a statue or statutory instrument.
  • Cases Related to it: –
  • Manohar Reddy vs. Union of India

Two advocates filed a petition quashing the appointment of a judge of HC of AP and a writ is in the nature of Mandamus commanding the Bar council of AP to cancel the enrollment as an advocate NV Ramana.

  • University of Mysore Vs. Govinda Rao

Sc held that the particular writ is only to check the wrong appointments in the executive branch of Government.

 

CONCLUSION

Through the provision of Article 226 and 32 and its writ jurisdiction in the nature of habeas corpus, mandamus, certiorari, prohibition, quo-warranto our judicial system commands that there is supremacy of law in country and no one is above whether its government or its organ everyone have to be accountable towards the judiciary therefore this shows that our judicial system is independent of any other influences.

 

 

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