WRIT UNDER ARTICLE 32 AND 226.

SUBMITTED BY:- MISHKA PASWAN

ENROLLMENT No. :- A46011120006
COURSE:- B.A.LL.B(7TH SEM)
SUBJECT
ADMINISTRATIVE LAW
SUBMITTED TO:- Prof. SHRISH KUMAR SHUKLA
 WRIT UNDER ARTICLE 32&226

INTRODUCTION-
Writs are a fundamental aspect of the Indian judicial system, serving as a powerful tool for the
protection of individual rights. Originating from the English common law system, the concept of
writs was incorporated into the Indian Constitution to provide a structured mechanism for the
enforcement of rights.

In the context of the Indian Constitution, a writ is a formal written order issued by the Supreme
Court or any High Court. These writs are directives from the judiciary, the highest authority that
interprets the law, to any individual, organization, or government body. They are issued when the
court feels that the rights of an individual or a specific group of individuals have been
compromised.

The Indian Constitution, under Articles 32 and 226, empowers the Supreme Court and the High
Courts, respectively, to issue writs in case of breach of fundamental rights of citizens. These
writs uphold the principle of ‘Rule of Law’ which forms the basis of the Indian Constitution.
They act as a guarantor of liberty and justice, ensuring that no individual’s rights are infringed
upon and that the state machinery operates within its legal bounds.

The five types of writs - Habeas Corpus, Mandamus, Certiorari, Quo Warranto, and Prohibition -
each serve a specific purpose and collectively provide a comprehensive framework for judicial
review and enforcement of law.

In essence, writs are more than just legal instruments; they are the embodiment of justice itself, a
beacon of hope for those whose rights are threatened, and a stern warning to those who dare to
infringe upon these rights. They are a testament to the foresight of the framers of the Indian
Constitution who envisaged a just and equitable society.

WRIT-
A writ is a court-issued written formal order. The official order may take the form of a warrant,
instruction, command, or order, among other things. Writs can only be issued by the High Court
in accordance with Article 226 of the Indian Constitution of 1950, and by the Supreme Court in
accordance with Article 32 of the Indian Constitution of 1950. The notion of prerogative writs
was introduced by the Indian constitution from English common law. The term Writs was
initially used to indicate a written command issued by the King. In England, however, similar
writs are now open to anybody who is dissatisfied with the judgment of the subordinate courts or
administrative body.

Differentiating between writs and orders, it may be stated that writs can be issued to offer
exceptional remedy, i.e. in circumstances when the aggrieved party seeks an extraordinary

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remedy, generally against an administrative action, whereas orders can be issued in any subject.
There are five different sorts of writs granted by law, but no equivalent categorization for orders
has been developed.

As a result, all writs can be termed order, but all order cannot be named writs since the scope of
order is greater than that of writs.

TYPES OF WRIT-
Writs are an essential part of the constitutional framework and play a crucial role in safeguarding
fundamental rights. The Constitution of India provides for five types of writs, each with its
specific purpose and jurisdiction.

1. HABEAS CORPUS.
2. MANDAMUS.
3. PROHIBITION.
4. CERTIORARI.
5. QUO WARRANTO.

❖ HABEAS CORPUS
Writ of habeas corpus can be issued for preserving the liberty of a person, who is being illegally
detained. It can be invoked against the state as well as against the person within whose custody
the aggrieved person is. It came into the picture for preserving the rights and liabilities of

Writ of habeas corpus is a powerful weapon available before a common man who has been
wrongfully detained by the person or state. This writ provides a fast and powerful remedy against
illegal detention.

In the case of State of Bihar v Kameshwar Prasad Verma1, this writ is an order calling the
person who was arrested or jailed the alleged person for producing the aggrieved before the
court, for knowing the grounds of his detention and if not found any legal ground for his
detention then let the aggrieved be free from arrest and let him enjoy his freedom.

1
1965 AIR 575, 1963 SCR (2) 183.

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• OBJECT

Case- Sapmawia v Dy. Commissioner, Aijal2

The main focus of habeas corpus writ is preserving the right of the appellant’s freedom by a
quick judicial review for pleaded wrongful detention.

This writ came before the existence of a statute, therefore, deep-rooted into the history of our
common law.

Case-ADM, Jabalpur v. Shivkant Shukla3

This case is known as habeas corpus case, here it is explained, what is a writ of habeas corpus
mean? Quoting Justice Khanna “writ of habeas corpus is a process of securing the liberty of an
aggrieved person by providing an adequate method for immediate relief from wrongful or illegal
detention. Whether the person kept in wrongful custody is in prison or under private custody of
an individual.” and after the enquiry regarding the cause of his imprisonment by the High Court
and the judges of that court, if it is found that there is no legal jurisdiction for that incarceration,
the aggrieved person is ordered to be released from custody.

• PURPOSE

It is in the form of an order delivered by the High Court or Supreme Court for calling upon the
person who made the arrest of the aggrieved person. Commanding to produce such person before
the court, for hearing the grounds on which his arrest was made.and if there is no legal ground
observed by the court in making his arrest the person making such arrest is ordered to release the
aggrieved immediately.

Case- Kanu Sanyal v District Magistrate Darjeeling4

Justice Bhagwati held that the main aim of this writ is preserving the liberty and freedom of the
person subjected to illegal detention and allow him to enjoy his liberty at the fullest. In extension
to this aim, his(person alleged to be illegally apprehended) production before the court is
ancillary.

Whereas, under English law production of an alleged person body, for determining the legality of
his detention, is not required. And under before US Courts also the same principle is followed.

• WHO MAY FILE AN APPLICATION

2
Writ Petition No. 269 of 1970.
3
1976 AIR 1207, 1976 SCR 172.
4
1973 AIR 2684, 1974 SCR (1) 621.

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Application for habeas corpus can be filed by the person himself whose detention was alleged
wrongful and can also be filed any other person ( can be a mother, father, wife, brother, sister or
even friends) on his behalf, subject to the rules constructed by different High Court in this
respect.

Case- Charanjit Lal Chowdhury v Union of India5

Supreme Court declares that an application for the writ of habeas corpus can be filed by the
person illegally jailed or can also be filed by any other person on his behalf provided that such
any person must not be totally a stranger to the person wrongfully detained.

• PROCEDURE

On receipt of the application, if the court is satisfied that there arises a prima facie case for
granting the prayer then, the court will issue a show cause notice(rule nisi) calling the opposite
party who detained the applicant on the specified day for presenting their side of the case.

On the specified day court after analysing all the point made by both the applicant as well as by
the opposite party will look into the merits and pass an appropriate order. If it is viewed by the
court that the detention is unjustified, it will order the authority who detained the applicant for
immediate release of the convicted person. Whereas, if the detention is justified according to the
court, the show cause notice must be discharged.

Case- S.M.D. Kiran Pasha v Government of Andra Pradesh6

In the above-stated case, it was held by the Supreme Court of India that the court before which
the case is pending for disposal has the power to grant interim bail. But in the usual course of
working grant of interim bail by the court is not preferred.

Case- State of Maharashtra v Bahurao Punjabrao Gawande7

This a recent judgment of 2008 by the Supreme Court of India disclosing that as per general
principle writ of habeas corpus can be issued only once the person has been arrested whereas,
there are exceptional circumstances in which a petition for writ of habeas corpus is maintainable
even if the person is not actually detained. Such an exercise is undertaken by writ- court with
extreme care and caution.

1. If certain conditions are satisfied then it will become absolutely clear that detention can’t
be prima facie illegal:-

5
1951 AIR 41, 1950 SCR 869.
6
1989 SCR, Supl. (2) 105 1990 SCC (1) 328.
7
Appeal (crl.) 417 of 2008.

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2. Article 21 of the Indian Constitution declares that “every detention must be according to
the procedure provided under the law”. Meaning that there a given valid law allowing the
authorities to convict the person accused of some offence and the procedure prescribed
must be strictly followed by the person making such arrest. The following procedure
must be fair, reasonable and just..

3. The conviction must not be followed by infringement of any of the conditions provided
under Article 22 of The Indian Constitution. Hence any person not produced before a
Magistrate within 24 hours from his arrest (excluding travelling time) shall be entitled to
be released on a writ of habeas corpus.

Case- D.K.Basu v State of West Bengal8

This is a landmark judgment in which Justice T.S.Thakur has laid down 11 which are supposed
to be followed by the person making an arrest of an accused person. These guidelines include
production of the person before any magistrate within 24 hours from the time of his arrest and
held that in case if these guidelines are not being followed by the court then person detained
must be entitled to be released on the same grounds on a writ of habeas corpus.

1. The legislature which is making law in regards to a man, depriving him from his personal
liberty must also be empowered to make laws under Article 246 making knots with the
distribution of legislative power.

2. Writ of habeas corpus can only be issued if there is illegal restrain and the person is
entitled to be released on a petition of habeas corpus. Question asked by the court on a
petition of habeas corpus is whether the detention is lawful or not and if it is answered
positively then such a writ will not be issued and if answered negatively then the writ
must be issued.

Case- R. v Secretary for State of Home Affairs9

In the given case application for a writ of habeas corpus was filed for the discharge of Robert
Soblen, as here before the court, the question was, whether the detention of Mr Robert is lawful
or not? As he is not in a condition to be held in prison, medically. His surgeon at the hospital also
didn’t allow any legal documents to be served to him until july 3.

Therefore, considering the facts of the case writ of habeas corpus was granted.

1. In case it is visible that detaining authority has acted mala fidely or with the intention to
deceive the arrested person or there are any personal grudges involved then a writ of
habeas corpus will lie.

8
1997 1 SCC 416
9
[1963] 1 QB 829, [1962] 3 All ER 373, [1962] 3 WLR 1145.

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Case- A.K. Gopalan v State of Madras10

The petition was filed under article 32 before the Supreme Court of India.writ of habeas corpus
was filed against his detention in Madras jail mentioning all the dates since December 1947,
under ordinary criminal law. His detention was made under preventive detention act IV of 1950.

Petitioner challenges the legality of the given act ass it contravenes the provisions of article
13,19 and 21 and provision of preventive detention act are not in consonance of article 22 of
Indian Constitution also. And challenged the validity of the order stating that the order passed
against him is mala fide.

Held- Court will not interfere on the question of malafide unless it is proved by the petitioner
that the authorities have used their power in a mala fide manner or the grounds of his detention
are not justified. It is also declared by the court that though the provisions of the act are harsh or
rigid, but those do not take away the rights provided under chapter III, Article 21 and 22 of
Indian, therefore provision of preventive detention act can’t be held illegal or ultra vires and
impugned order was upheld by the court.

1. According to the general principle of law, writ of habeas corpus will not lie if the person
is undergoing imprisonment on a sentence passed by a court in any criminal trial on the
ground of wrongfulness of his detention. That implies writ can’t be issued when the
person is not convicted or is clearly visible that his detention is done for the execution of
a sentence on any criminal charge. While the conviction is taking place an application of
issuance of the writ can’t be filed along with it.

Case- Janardhan Reddy v State of Hyderabad11

In the given case it was held by the supreme court that whenever a person is convicted of a
criminal charge and sentence of his conviction is passes by the criminal trial court then such
detention can’t be challenged on the ground of the erroneousness of the conviction.

• COMPENSATION
In the case of Rudul Sah v State of Bihar12, a writ court typically does not award
compensation when exercising their power under Article 32 or Article 226 of the
Constitution. However, in certain cases, the court may award monetary compensation to a
person who has been illegally detained. If an order for the release of a person from illegal
detention is passed under Article 32 or Article 226, and the detaining authority claims

10
1950 AIR 27, 1950 SCR 88.
11
1951 AIR 217, 1951 SCR 344.
12
1983 AIR 1086, 1983 SCR (3) 508.

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that the person has also been released, the court may order the payment of compensation.
The writ of habeas corpus can only be issued after the person is detained, not to prevent
arrest. In the case of State of Maharashtra v Bhaurao Punjabrao Gawande13, Justice
C.K. Thakker and Altamas Kabir explained the concept of writs, stating that it is the first
security of civil liberty and has a great constitutional privilege. However, once the
detention is made, the writ of habeas corpus cannot be enforced.

❖ MANDAMUS

History of this writ say that it is a command, issued in the name of the crown by the
court of king’s bench to the subordinate court, inferior tribunal, board or to any person
requiring it for him to perform a public duty imposed by law. Therefore, a writ
of mandamus is a command given by any high court or supreme court to the lower court
or any tribunal or board or to any other public authority to perform their public duty
imposed upon them by law. It’s primary objective is to supply defects of justice and
prevent rights of the citizen.

Case- State of Mysore v K.N.Chandrasekhara14

In the given case high court has issued a writ of mandamus directing the public service
commission to include the names of the six petitioners in the list prepared by the
Commission under Rule 9(2) of the Rules for appointment to the cadre of Munsiffs. In
the view of the High Court the appointment of ten candidates whose names were included
in the list under R. 9(2) as fit for promotion could not be disturbed, yet the six applicants
should be added to the list and appointments should be made out of that list.

Such direction as given by the high court to public service commision can also be issued
against any person or body corporate also to perform their public duty.

Writ of mandamus have several highlighting features, as explained below:-

Writ of mandamus is a judicial remedy in the form of an order from a superior

court to any government body, court, corporation or public authority to do or not to do
some specific act that the government body, court, corporation or public authority are
bound to perform or not to perform under law, as the case may be. These acts must be
performed as a part of their public duty or statutory duty.

13
Appeal (crl.) 417 of 2008.
14
Appeal (civil) 960-968 of 1963.

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Writ of mandamus cannot be issued by the higher authority to force their lower
departments to act or do something which is against the law.

So, basically this writ is a command to do and also command not to do a particular act
against the law, as the case may be.

Writ of mandamus can only be issued when there exists a legal right without a legal right
it can’t be issued. A person be called aggrieved person only when he is denied a legal
right by any person, court or board who has a legal duty to do something and abstains
from doing it.

Case- Mani Subrat Jain v. State Of Haryana15

In the given case Justice Ray A.N.given a definition of an aggrieved person” a person is
said to be an aggrieved only when his legal rights has been denied by someone who has a
legal duty to do something or denied from doing something. The denied legal right must
be a legally enforceable right as well as a legally protected right before one suffering a
legal grievance can ask for a mandamus.

• EXISTENCE OF LEGAL RIGHT

The existence of a legal right is a prerequisite for seeking a writ of mandamus. This right
must be legally enforceable and protected before claiming it. The jurisdiction of a writ
court to issue mandamus is based on the existence of a legal right. In the case of
Umakant Saran v State of Bihar16, the court ruled that Dr. Saran was not eligible for
appointment at the time of the decision, and therefore, he had no right to request a writ of
mandamus. The court emphasized that the purpose of mandamus is to force authorities to
perform a specific act, and the aggrieved person had a legal right to enforce its
performance. The appeal was dismissed, and the writ of mandamus was not issued. In the
case of State of Madhya Pradesh v. G.C. Mandawar17, the Supreme Court held that the
applicant must have a legal right to compel the performance of a duty cast on the
opponent by the Constitution or any other statute. The duty must be public nature, not
discretionary, and have been conferred by the authority and statutory provisions. In the
case of CGA v K.S. Jagannathan18, the Supreme Court held that the high court has the
power to issue writs of mandamus in cases where authorities or government bodies have
failed to exercise their discretionary duty or wrongly exercised it.

15
1977 AIR 276, 1976 SCR (2) 361.
16
AIR 1973 SC 964, (1972) IILLJ 580 SC, (1973) 1 SCC 485, 1973 (1) SLJ 14 SC, 1973 (5) UJ 410 SC.
17
1954 AIR 493, 1955 SCR 158.
18
1987 AIR 537, 1986 SCR (2) 17.

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• AGAINST WHOM THE WRIT OF MANDAMUS DOES NOT LIE-

The writ of mandamus is a legal document that grants special remedies to individuals
who are infringed on their rights. It does not lie against the president or governor of a
state, the state legislature, an inferior or ministerial officer, a private individual, or any
private company. In cases like Narinder chand Hem Raj v Lt. Governor, H.P.19, the
Supreme Court held that a writ of mandamus cannot be issued against the state
government for performing their legislative powers or for preventing the state legislature
from considering laws pleaded to be violative of constitutional provisions.
An application for mandamus cannot lie for reinstatement to a private office, securing
performance of an obligation owed by a company registered under the Companies Act,
1956 towards its workmen, or resolving any private dispute. If a writ of mandamus could
not lie against a company that is neither a statutory company nor one with public duties
or responsibilities imposed upon it by a statute, no relief could be given by granting a
declaration on the court of the agreement between the company and its workman being
illegal.20
The issuance of a writ of mandamus is discretionary power of the court, especially in the
case of issuance. However, if there is an unreasonable delay in seeking this extraordinary
remedy, the remedy may not be made available. For issuance of a writ of mandamus, one
of the essential requirements is that there must be a demand by the person seeking relief
and the same demand must have been refused by the concerned authority.21

In "Halsbury's Law of England," it is stated that the party seeking a writ of mandamus
must know what was the actual requirement for considering whether or not they should
comply.

❖ Prohibition

Writ of prohibition is as old as common law. Initially it was used to limit the jurisdiction
of ecclesiastical by restraining them from acting without or in excess of their jurisdiction
and later it is used by common law courts.
Before the enactment of the Constitution of India, there were three charters under which
court use to exercise their power and after the enforcement of the constitution High Court
and Supreme Court exercise the power to issue this writ.
It is an extraordinary writ of preventive nature. It prevents courts, tribunal, quasi judicial
bodies and other officers from exercising their power beyond their jurisdiction or
exercising those powers which are not vested on them.

19
1971 AIR 2399, 1972 SCR (1) 940.
20
Praga Tools Corporation v. Shri C. A. Imanual & Ors, 1969 AIR 1306, 1969 SCR (3) 773.
21
State Of Madhya Pradesh v. Bhailal Bhai & Ors, 1964 AIR 1006, 1964 SCR (6) 261.

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• PURPOSE

Writ of prohibition is issued to the court or any tribunal to bar them from doing
something what they are about to do. This bar is applied whenever a subordinate court or
tribunal hears the matter beyond their jurisdiction or on matters on which they have no
jurisdiction.
Case- East India Commercial Co. Ltd. v Collector of Customs22
In the given case an observation is given by the Supreme Court that writ of prohibition is
an order directing inferior courts and tribunals to stop from proceeding therein on the
ground that the proceeding are taking place with excess jurisdiction or lack of
jurisdiction.
Case- S. Govinda Menon v Union of India23
In this case the Supreme Court has explained the jurisdiction of the court for grant of a
writ of prohibition. It says that power to issue writ of prohibition is primarily supervisory
and the main object for behind the writ of prohibition is to restrain inferior courts or
tribunals from exceeding their jurisdictional limits. It is well settled law derived from
decided cases that writ of prohibition lies not only in case of excess of jurisdiction or for
abuse of judicial power but writ lies also in cases of where the actions are taken in
contravention to the rules of Natural Justice.
But the writ does not lie to correct the course, practice or procedure of inferior courts or
tribunal, also to correct the wrong decision of inferior court on the merits because issue
can be issued only when the subject matter of the plea is a question of law.
Writ of prohibition can’t be issued when there is an error of law unless such error makes
it go outside its jurisdiction. Therefore it is clear from this case that if there is want of
jurisdiction then the matter is coram non judice and a writ of prohibition is lie otherwise
on any other ground other than on point of jurisdiction writ of prohibition can’t be issued.

• GROUNDS FOR ISSUING WRIT OF PROHIBITION

1. Absence or excess of jurisdiction– where there is an absence of jurisdiction or total

lack of lack of jurisdiction.
2. Violation of natural justice– In case where the principle of natural justice have not been
observed or if observed there is a violation of those principles. For example, if the
opposite party have not been served with the notice and not been heard. Then the writ of
prohibition can be issued.

22
1962 AIR 1893, 1963 SCR (3) 338.
23
1967 AIR 1274, 1967 SCR (2) 566.

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3. Unconstitutionality of Statute– whenever any tribunal or court proceed to act under law
which is ultra vires or unconstitutional, a writ of prohibition can be issued against the
proceedings.
4. Infringement of Fundamental Right– where the impugned action is infringing any
fundamental right of the petitioner then the writ of prohibition can be issued.
5. Error of law Apparent on the face of Record
Nature
Prohibition is writ of right not a writ of course and is of preventive nature rather than
corrective. The main object of this writ is to prevent unlawful assumption of jurisdiction.
Therefore, writ does not lie in case of irregularity in exercise of jurisdiction or
jurisdiction has been exercised improperly or erroneously. Availability of an alternate
remedy does not create an absolute bar on issuance of a writ of prohibition.
This writ can be issued during the proceedings are pending before a judicial and quasi-
judicial body and if the proceedings have been terminated and authority became functus
officio then in such cases writ of prohibition can’t be issued. In such cases writ of
certiorari may be issued.
Case- Hari Vishnu Kamath v Ahmad Ishaque24
In this case appellant and respondent 1 to 5 were nominated for Lok Sabha election from
some constituency in Madhya Pradesh. After that respondent 4 &5 withdrawn from
election. Election result declared stating that respondent 1 secured highest no. of seats
followed by appellant.

• ISSUED AGAINST
Writ of prohibition is much in common with certiorari in its scope as well as in the rules
of its governance. Therefore both these writs lies against a judicial and quasi- judicial
body and not against any executive authorities. Both these writs are concerned mainly
with Public Law.

❖ Certiorari

Writ of certiorari has been defined as one of the most effective and efficient remedies
taken from common law. Certiorari means “to certify”. It is an order issued by the High
Court to an inferior court or any authority exercising judicial or quasi-judicial functions.
The main object of this writ is to keep the inferior courts, judicial and quasi-judicial
authorities within their limits of jurisdiction and if the act in access of their jurisdiction
their decision will be quashed by the High Court and Supreme Court by issuing a writ of
certiorari.

24
1955 AIR 233, 1955 SCR (1)1104.

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Lord Atkin stated that writ of certiorari may be issued “wherever any body of person
having legal authority to determine questions affecting the rights of subjects, and having
the duty to act judicially, act in excess of their legal authority.” This statement has been
approved by the Supreme Court in many cases like in Province of Bombay v
Khushaldas25 and held the four components of this writ that are-
1. Body of persons.
2. Such body is having some legal authority.
3. Legal duty for determining the question affecting the rights of the subjects.
4. Duty to act judicially.

• Nature
It is a great corrective writ by which superior court may exercise supervisory power on
inferior courts and judicial or quasi-judicial tribunals. By exercising such power their
records and proceedings are brought under review and the sole object become to prevent
abuse of law.
Earlier writ of certiorari was used as a writ of error. It was invoked only in criminal
matters and later on was also used in civil cases.
Writ of certiorari may not be issued against
1. an individual
2. company
3. Private authority
4. An association or tribunals having no judicial or quasi-judicial powers.
5. Also can’t be issued for making declaration that an act or statute is ultra virus or
unconstitutional.

• GROUNDS

A writ of certiorari may be issued on the following grounds:-

1. Want or Excess of Jurisdiction

When an inferior court or tribunal act in excess of jurisdiction or act without jurisdiction
or fails to act then, Writ of Certiorari come into the picture for correcting the errors of
jurisdiction.
Wherever there is a defect in jurisdiction or power writ of certiorari must be issued. In
case of Rafiq Khan v State of Uttar Pradesh 26, Allahabad High Court held that order of
sub- Divisional Magistrate is contrary with the provision of section 85 and quased the
same order by issuing a writ of certiorari.

25
1950 AIR 222, 1950 SCR 621.
26
AIR 1954 All 3.

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Therefore, by reviewing this case it is clear that want of jurisdiction may arise from the
nature of the subject matter of the proceeding and court can’t decide some of its parts and
let the other be untouched. Enquiry of the whole case should be conducted together.

Similarly in cases where the inferior courts have wrongfully denied to exercise
jurisdiction vested in it, writ of certiorari may be issued to quash the decision of inferior
court and decide the case falling within their jurisdiction.

In cases of conditional powers i.e. there are certain powers vested in the court that can be
exercised only when certain jurisdictional facts exist otherwise if court or tribunal
exercised those powers without availability of those jurisdictional facts, even the
assumption of jurisdiction by the court that such facts exists would not be supported and
can be removed by a writ of certiorari. Express newspaper Ltd. v Workers27, In this
case the question on which the jurisdiction industrial tribunal decided was whether the
dispute is an industrial dispute or a non- industrial one? The Supreme Court held that if
the industrial tribunal assumes to have jurisdiction over a non- industrial dispute then it
can be challenged before the High Court and the High Court has the power to issue a writ
of certiorari for the same question. Power to issue an appropriate writ of High Court is
not subject to any question.

2. Violation of Procedure or Disregard of principle of Natural

Justice-
The principle of natural justice is a legal principle that requires a writ of certiorari
to set aside decisions that violate it. There are two principles of natural justice
recognized by law: Audi alteram partem, which ensures equal opportunity for
both sides to present their case, and bias and interest, which states that no one
should be a judge in its own case.

Audi alteram partem means that both sides must have an equal opportunity to
present their side of the case. This rule commands the authority deciding the case
to give both parties an equal opportunity to present their case and correct or
contradict any relevant statement. In the case of Collector of Customs v A.H.A.
Rahiman28, the Madras High Court held that the order passed by the collector
was contrary to the principles of natural justice and issued a writ of certiorari
under Article 226.

Bias and interest are two principles that govern this doctrine of natural justice. No
one shall be judge in its own case, and just should be manifestly and undoubtedly
done. Any judicial entity considered "subject to bias" should not take part in the
27
1963 AIR 569, 1963 SCR (3) 540.
28
AIR 1957 Mad 496.

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decision if they are in favor or against any party to the dispute or where it can be
assumed that bias exists.

The Supreme Court's A.P. SRTC v Satyanarayana Transport29 case

emphasized the importance of delivering judgments with a free and independent
mind without any indication of bias towards either side of the case. There should
be no pressure to divert or mislead the person from fulfilling the purpose of their
seat.

3. ERROR OF LAW APPARENT ON THE FACE OF THE RECORD-

Error of law refers to a clear ignorance of law or incorrect interpretation of law

provisions. It cannot be corrected by a writ of certiorari, as it is a supervisory
jurisdiction and cannot act as an appellate court. An error of law cannot be
established if it is not self-evident and requires argument or examination. It must
be seen with open eyes and without further examination or argument. Errors of
law usually occur when there are two possible interpretations of a provision and
the subordinate court has chosen one. This test provides satisfaction in most cases
but is not infallible. An error considered self-evident by one judge may not be
considered by another, making it difficult to define an error. Each case has
different facts, and its determination must be based on those facts.

Cases where error of fact might be impugned on the ground of error of law:-

a) Mistakenly refuse to admit material evidence, those can be admitted.

b) Admitted evidences that are not admissible and the same influenced the
findings of the case.
c) There was a finding of facts without any evidence.

Judicial order passed by The High Court in respect of the proceedings pending
before it can’t be corrected by a writ of certiorari. The supreme court also is not
competent to issue a writ of certiorari for protection a person’s fundamental right.
In other words a plea stating that the order passed by the court is affecting his or
any person’s fundamental rights can’t be entertained by the supreme court in a
petition under Article 32.

29
AIR 1965 SC 1303.

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In the case of S. Govindrao Menon v Union of India30, Supreme Court held that
Certiorari can only be issued by the High Court for quashing the decisions of
subordinate court. But by this writ High Court can’t quash decision of other high
court or of its own bench.

❖ QUO WARRANTO

• OBJECT–
Prevent the person from wrongfully or forcefully holding any office or from
continuing the office. By writ of Quo Warranto court has the authority to ask the
holder of the office that by what authority he is holding the office.

Earlier in England this writ was issued by the king or on his behalf against any
person who claim or take any office, or privileges of The Crown. And later this
writ was misused by the authorities that led to substitution in proceedings by way
of information.

Writ can be issued only if the office in question is a public office and any person
claiming a writ must establish this fact first. Also it needs to be proved that the
office in question is usurped without legal authority. Therefore that lead to an
enquiry that the person claimed to be usurped the office is appointed legally or
not.
In the case of University of Mysore v C.D. Govind Rao31, It was held that the
High Court is correct in finding that Anniah did not possess a high second class
degree of an Indian University but he did possess the alternative qualification of
Master of Arts of a foreign University.

The writ of Quo Warranto acts as a weapon for judiciary to control the execution
from making appointments to public office against law. It also protects a citizen
from being deprived of public office to which he has a right.
Public Office, any office in which there is some interest of public is known as
public offices.
In the case of Anand Bihari Mishra v Ram Sahay32, the office of speaker of a
legislative assembly is held a public office and writ of quo warranto can be issued
for inquiring the appointment made.
It can also lie to question the appointment of a High Court judge.

30
1967 AIR 1274, 1967 SCR (2) 566.
31
1965 AIR 491, 1964 SCR (4) 576.
32
Misc. Appln. No. 3 of 1950.

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In the case of, Shiam Sunder v State of Punjab33, the writ petition was filed
under article 226 before the Punjab and Haryana High Court by municipality
requesting an order in the nature of Quo Warranto, enquiring the elected member
of municipality, and on the inquiry it was found that 10 elected members of
Municipality Board were appointed wrongfully and their seats were declared
vacant.

• Delay
Question of delay does not arises in presenting a petition for this writ in which
person to function in certain capacity is challenged. Cause of action for a writ of
quo warranto is continuing as if the appointment of an officer is made illegally
then every day of his office will lead to a new cause of action therefore due to
which petitions can’t be rejected on the ground of delay.

• Nature- Issuing a writ of quo warranto is discretionary in nature and it is not

necessary in all cases the writ can be issued by the court. In case where the person is
holding the office from a long time and there was no complain against him in the past
and the writ of quo warranto is causing annoyance then High Court or Supreme Court
in its discretion may refuse to issue the writ of quo warranto.

• Nature of office for which writ is claimed- Office in respect of which writ of quo
warranto is claimed must be of substantive character and should not be of Private
nature.
Case- Jamalpur Arya Samaj v D. Ram (1954)
Writ petition was moved to the High Court by the petitioner against the members
of the working committee of Bihar Raj Aryan Pratinidhi i.e is a private religion
association. Court dismissed the petition on the ground that a writ of quo warranto
can’t be issued against a private association.

• Who can apply

An application for writ of quo warranto can be made by a private person
challenging the legality of appointment in public office even though the person
may not have any personal interest in that or may not be aggrieved by such
appointment directly.
Case- G.D Karkare v T.L. Shevde34
Application for writ of quo warranto is not regarding any non- performance of
duty by the authority appoint neither it seek to enforce any right. What is in
question is the right of the non-applicant to hold the office and an order that is

33
Civil Writ No. 607 of 1956.
34
Misc. Petn. No. 76 of 150.

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passed is an order ousting him from that office. In other words the question dealt
by this writ is whether the appointment made for the questioned public office is
legal or not.
As any citizens apply for a writ of quo warranto, may not be having any personal
interest in the matter, there he possesses the position of a relater.

• Conditions- Before issuing the writ of quo warranto certain conditions needs to be
fulfilled:-
1. Office in question must be of public nature
2. It must be of a substantive character
3. Office must be of Statutory Nature
4. Actual occupancy- the person holding the public office must have been in the actual
occupancy of the office and assert his right to claim it.

• Alternative Remedy
If there is an availability of any alternative and effective remedy to the applicant,
the court may not issue writ of quo warranto and assign her to seek for that
remedy. Therefore it can be concluded that a writ of quo warranto can be refused
on availability of an alternative remedy by making an election petition available
to the petitioner/applicant. But in case the objection raised by the petitioner falls
outside the statutory remedy then alternate remedy can’t become a ground for
rejection for a writ of quo warranto.

❖ HIGH COURT (ARTICLE 226)

Article 226 of Indian Constitution empowers The State High Courts to issue a direction, order or
writ for enforcement of fundamental rights, or for reviewing administrative actions. This power
can be used by the High Court not only for enforcement of fundamental right but also lie for non-
fundamental rights. The power conferred to every High Court under Article 226 to issue writ
shall not be in derogation to the power conferred under clause (2) of article 32 on the Supreme
Court.

Case- Sarvepali Ramaiah & others v The District Collector35, In this recent case of March
2019, Supreme Court has tried to define the scope of Article 226 of the Indian Constitution.

35
CIVIL APPEAL NO.7461 OF 2009.

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It was held that-

1. Administrative actions are subject to judicial review under Article 226 on the ground
of illegality, rationality, want of power or irregularity in the procedure.
2. The decision of the administrative authorities may also be quashed on the of
illegality or there is an error of law on the face of the decision by the High Court
under Article 226.
3. Judicial review under Article 226 of Indian Constitution, 1950 not only directed
against any order or decision but also directed against a decision making process.
4. A further appeal does not lie before the court exercising the power under article 226
neither does it passionately adjudicate disputed question of facts.
5. The remedy under Article 226 of Indian Constitution,1950 is available only when
there is a violation of some statutory duty on the part of the statutory authority.
6. While exercising its power under Article 226 High Court can only either annul the
order/decision or quash the same whereas, under Article 227 High Court apart from
annulling the proceedings, can also substitute the impugned decision by the decision
which the inferior court should have passed.
7. Exercise of Article 227 Of Indian Constitution,1950 is restricted to only those cases
where there is a grave failure in fulfilling the duty and there was immoral abuse of
fundamental principles of law.
8. In the case of purely contractual rights writs under Article 226 can’t be invoked.
9. While exercising its power under Article 226 High Court can’t proceed adjudication
upon affidavit or on questions of facts.
10. Lastly its is said that power of Judicial Review Conferred upon High Court under
Article 226 is a basic essential feature of Indian Constitution and legislature
including Armed Forces Act,2007 also can’t overrides the jurisdiction of the High
Court under this section.

❖ SUPREME COURT (ARTICLE 32)

Under Article 32 of Indian constitution, 1950 any person can move to the Supreme Court of
India for enforcement of his Fundamental Rights conferred under part III of the Indian
Constitution.

Article 32 empowers Supreme court to issue a direction, order or writ of any of its five types for
enforcement of fundamental right.

Writ can also be issued on any application if such application include violation of social welfare
laws. As it was held in Bandua mukti morcha case by the Supreme Court.

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Though supreme court jurisdiction to issue a writ under Article 32 is less wider than that of High
Court conferred under Article 226 because Supreme court can only issue writ for protection of
fundamental rights of the person seeking protection whereas, High Court can also issue writ for
protection of any legal right but for that High Court has Discretionary power.

CONCLUSION-
The Preamble to the Constitution's first and greatest purpose is to provide social, economic, and
political fairness for all of its residents. The preamble to the constitution is the nation's guiding
principle since it outlines the key goals that the legislature sought to achieve. The social changes
envisioned by the Constitution's drafters were sought to be realized through the exercise of
fundamental rights by individuals and by the state's policy direction toward the goals outlined in
Chapter IV of the Constitution, which specifies directive principles of state policy.

The judiciary was established in the Constitution to ensure the efficient implementation of these
ideas and purposes in real life and to prevent the abuse of these rights and liberties. It is a
hackneyed adage and a latin proverb, ubi jus ibi remedium, which says that wherever wrong is
committed, the law gives a cure for it. As a result, the judiciary was established to meet this
concept effectively, and when a remedy is provided for an infringement of any right, the right
becomes more effective.

Moreover, the Supreme Court and the High Court have accepted letters, postcards, telegrams,
and even newspaper articles as writ petitions under Articles 32 and 226 of the Indian
Constitution, respectively. These petitions seek exceptional court redress for the individual
whose rights are being violated by any judicial or quasi-judicial order. PIL plays a vital part in
the court system because it provides a path to justice for the most disadvantaged members of
society, some of whom may be unaware of their rights.

The law itself proclaims that the law is ultimate and that no one may be above the law. Even
Supreme Court justices are bound by the decisions they make in conformity with the law. And
the constitutional remedies given by law serve as a check and balance for the entire system. As a
result, writ jurisdictions serve as judicial restrictions on policy actions that are irrational, unjust,
or contrary to the public interest.

The power to issue writs is discretionary, but it has no boundaries, and such discretion can be
employed only on the basis of good legal grounds. Absence of arbitrary authority is the primary
need for the notion of rule of law, which underpins the whole constitutional system.

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