Article 226 of the Indian Constitution

Enshrined under Part V of the Constitution of India, Article 226 of the Constitution of India
in relation to the High Courts empower them to issue writs where the writs are in the form
of habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any of them to any
person or authority including the Government.
According to Article 226 of the Constitution of India, High Courts possess the power and
the capacity to implement any of the fundamental rights under Part III of the Constitution
of India, 1949 or for any other cause.
As stated in Article 226(1), every High Court has the capacity and authority to make orders,
directions or writs commanding or restraining in any part of India on the ground of the
violation of any of the provisions of Part Ill of the Constitution or any legal rights within
their territory.
Article 226(2) enables the High Courts to pass appropriate order, direction or writ to any
government authority or any person beyond its territorial limit if the cause of action partly
or wholly lies within its territorial jurisdiction even though the seat or abode of such
government or authority or the person concerned is outside the territory.
According to Article 226(3), when an interim order is issued against the respondent under
Article 226 in the form of an injunction or a stay without:
o providing the respondent with a copy of the petition and any relevant evidence; and,
o providing the respondent with an opportunity to be heard.

The High Court shall determine the application within two weeks from when the
application was lodged or from the date on which the other party responded to the
application, whichever is later. If the application is not so disposed of, the interim order
shall be vacated on the expiry of that period, or, if the High Court is closed on the last day
of that period, before the expiry of the next day on which the High Court is open, the interim
order shall be vacated.
According to Article 226(4), the jurisdiction granted to the High Courts under Article 226
does not preclude the Supreme Court from using its powers under Article 32(2).
Types of writs
1. Habeas Corpus
It is a Latin word, which translates to "to have a body or to produce a body. " This is the
strongest of all the writs, and it is used most frequently. For instance, if a person is detained
unlawfully by the government, that person, or his/her relatives or friend can approach the
courts through Writ of Habeas Corpus to seek the release of the detained person. When this
writ is exercised, the Supreme Court or the High Court asks the State to explain why the
particular person has been detained. If the ground is considered as irrational then the person
is immediately released from police custody. This is the order of the court to produce the
detainee before that particular court to make a determination as to the validity of the arrest.
The main purpose of this type of writ is to secure the release of a person who has been
deprived of his liberty unlawfully or is imprisoned unlawfully. This writ is important
because it defines whether a person has a right to liberty and freedom in the society.

Grounds for Issuance:

• Unlawful Detention: It is often used when a person is held in custody without any legal
justification or against the provisions of the law. The detaining authority is required to
present the detainee before the court to explain why the detention was legal.
• Violation of Fundamental Rights: Whether the said detention denies a detainee his/her
fundamental right to personal liberty under Article 21 of the Constitution.
• Absence of Legal Justification: When there is no legal justification or proper warrant
for holding a suspect.

This writ cannot be used in the following four situations:

o Detention is legal;
o Disobedience to the Court;
o The Court has no jurisdiction over detention;
o A Competent Court is in charge of detention.

Who may apply for the writ:

• The individual who has been illegally imprisoned or incarcerated;
• The individual who is aware of the advantage related to the case;
• The individual who has knowledge about the facts and circumstances of the case
willingly files a writ of habeas corpus under Articles 32 and 226.
Rudul Sah vs. State of Bihar (1983)
In this case, a person who had already served his sentence was wrongfully held in prison
for an additional fourteen years. The person was promptly freed from jail and was given
exemplary damages after using the writ of Habeas Corpus.
Sunil Batra vs. Delhi Administration (1980)
In this case, it was said that a writ petition for habeas corpus may be filed not only for the
purpose of seeking the prisoner's release on the ground that he was detained improperly or
illegally but also for the purpose of protecting him against any sort of ill-treatment or
discrimination by the authority under which he is detained.
Therefore, herefore, there is the possibility to file a petition for wrongful detention, and the
nature of the detention can also be looked into.
Nilabati Behra vs. the State of Orissa (1993)
In this case the petitioner's son was kidnapped and taken by the Orissa police for
questioning. This time all efforts made to know his whereabouts were in vain.
Consequently, a habeas corpus writ petition was preferred before the court. While the
petition was still pending, the petitioner lost his son who was found dead on a railway
track. The petitioner was compensated with Rs. 1,50,000.

2. Mandamus
It is a Latin phrase which when translated to English means 'we command'. It is a type of
command which can be used to discharge public functions by any constitutional or statutory
or non-statutory, universities or courts or body. This writ is a emploved to make sure that
a public officer performs the tasks assigned to him or her.
The precondition of this writ is that there must be a public duty. The Writ of Mandamus is
issued to compel any authority to perform their public duties assigned to them. It is an order
or command given to someone, a company, a lower court, or the government to perform
what they are legally required to do. Any person aggrieved by a breach or abuse of a public
duty and who has the legal power and authority to compel performance of this duty can
apply for a writ of Mandamus in the High Court or the Supreme Court.
Grounds for Issuance:
• Failure to Perform a Duty: This writ is used when a public authority or an official has
not done what was expected
of him or her under the law.
• Legal Obligation: It has to be the legal duty, prescribed either in statutes or case laws,
which the authority is unde the obligation to discharge.
• No Discretion: Mandamus can not be ordered where the duty is discretionary or where
the authority has the choice whether to discharge the duty or not.

This writ cannot be used in the following three situations:

o When a private body is entrusted with a public obligation;
o When the duty is discretionary;
o When the duty is based on a contract.

Gujarat State Financial Corporation vs Lotus Hotels (1983)

In this case, the Gujarat State Financial Corporation entered into an arrangement with Lotus
Hotels, stating that the funds would be released so that the building work could proceed.
They did not, however, release the monies subsequently. As a result, Lotus Hotels filed an
appeal with the Gujarat High Court, which issued a writ of mandamus ordering Gujarat
State Financial Corporation to perform its public duty as promised.
Hemendra Nath Pathak v. Gauhati University (2008)
In this case, the petitioner sought a writ of mandamus against the institution where he
studied because the university failed him despite the fact that he received the requisite
passing grades under the university's statutory standards. The university was ordered to
declare him pass according to university norms, and a writ of mandamus was issued.
Sharif Ahmad vs. HTA., Meerut (1977)
In this case, the respondent failed to follow the tribunal's instructions, and the petitioner
went to the supreme court to have the tribunal's orders enforced. The Supreme Court issued
a Mandamus, requiring the respondent to obey the tribunal's directives.
SP Gupta vs. Union of India (1981)
In this case, the court concluded that the president of India cannot be served with a writ
directing him to determine the number of High Court judges and fill vacancies. The courts
cannot issue writs of Mandamus against individuals such as the president and governors.
Also known as the Judges' Transfer Case, this PIL played a crucial role in ensuring judicial
independence and transparency in judicial appointments. The case emphasised the
importance of a free and impartial judiciary in upholding the rule of law and constitutional
governance.

3. Certiorari
It is a Latin phrase which translates to 'to be certified. ' With this writ, the Supreme Court
and the High Court can compel any other subordinate court to produce records for scrutiny.
These reviews are for the purpose of ascertaining whether the decisions made by the lower
court are legal or not. Their decisions may be unlawful where such decisions are made
beyond jurisdiction, without jurisdiction, in unconstitutional jurisdiction, or in breach of
the principles of natural justice. If their decisions are found to be unconstitutional, or illegal
then those judgments will be quashed.

Grounds for Issuance:

o Exceeding Jurisdiction: There should be a court, tribunal, or an official with the legal
power to decide the issue and the responsibility to act judicially; When that lower
court or tribunal exceeds its powers or assumes jurisdiction it does not have.
o Violation of Natural Justice: If the lower court or tribunal behaves in a way that is
contrary to natural justice and in violation of the principles of natural justice, including
a failure to offer a fair hearing.
o Error of Law: In situations where there is an arguable legal defect that has occurred in
the lower court or tribunal proceedings.

A.K. Kraipak vs. Union of India (1970)

In this case, the writ of certiorari was issued to the lower courts and their judgments
delivered were quashed. The cases which were reviewed were termed illegal and were held
as quashed and invalid for future purposes.
Collector of Customs vs. A.H.A. Rahiman (1956)
In this case, the customs collector issued a seizure order without any prior warning or
investigation. The Madras High Court ruled that the collector's order was made without
hearing or understanding all of the facts of the case and that this was contrary to the
principles of natural justice. As a result, the Madras High Court issued a writ of certiorari
to quash the collector's order.
Syed Yakoob vs. Radhakrishnan 1964)
In this case, the Court held that a writ of certiorari can fix an error of law that is obvious on
the face of the record, but not an error of fact, no matter how bad it
appears to be.
A. Ranga Reddy vs. General Manager Co-op. Electric Supply Society Ltd. (1977)
In this case, the Court found that no writ of certiorari could under any circumstances be
made against a private body. This appellant, Co-operative Electricity Supply Society
Limited, is a private body other than the public authority carrying out a public function;
thus, the writ petition cannot be filed against such private society.

4. Prohibition
For all intents and purposes, the difference between a writ of prohibition and a writ of
certiorari is marginal. The saying "an ounce of prevention is better than a cure" aptly
captures the difference between the two writs. In this case, the word preventive is connected
with prohibition which is defined as 'to forbid' whereas the word certiorari
is associated with treatment or cure. If a judgement is given and it is incorrect, it is recalled
and a Writ of certiorari is issued. Nevertheless, if the judgement is still to be published and
to avoid the said mistake, a writ of prohibition is resorted to. This writ can only be used up
to the point that the judgement has not been delivered. A writ of prohibition is sought to
restrain a lower court/ tribunal from assuming jurisdiction or exceeding the scope of its
authority, or affording natural justice to the parties. This writ suspends the normal
procedures in the lower court and brings them to a halt. As a general rule, where these
grounds are applicable, a writ of prohibition may be granted on the same bases as a writ of
certiorari except where there is a mistake or law apparent on the face of the record.
Grounds for issuance:
• Jurisdictional Error: The writ is used when any lower court or any tribunal has ventured
into an area of jurisdiction it was not entitled to, or had gone beyond the limits of its
mandate.
• Violation of Law: When there is a legal flaw in the decision-making process for
instance, when there is an error in the law.
• Procedural Irregularity: This may be where the lower court or tribunal has not
adhered to legal procedures or the principles of natural justice.

East India Company Commercial Ltd. vs. Collector of Customs (1962)

In this case, the Supreme Court clarified the concept of a writ of prohibition, stating that it
is an order issued by a higher court ordering a lower/inferior court to halt proceedings on
the grounds that the court either lacks jurisdiction or is exceeding its jurisdiction in
determining the matter.
P.S. Subramaniam Chettiar vs. Joint Commercial Tax Officer (1966)
In this case, the court held that a writ of prohibition may only be issued if the petitioner can
show that any government official owed him a duty that was under his authority but was
not carried out.
Brij Khandelwal vs. the Union of India (1975)
In this case, the Delhi High Court refused to pass an order restraining the Central
Government from entering into a boundary dispute agreement with Sri Lanka. The basis
for this ruling was the proposition that prohibition does not preclude the government from
fulfilling executive duties, and that prohibition is aimed at reigning in quasi-judicial as
opposed to executive
powers.
However, with the emergence of the idea of natural justice and the setting up of the idea of
fairness even during administrative work, this stance is not sustainable any more and the
rigidity of prohibition also has been done away with also. If any of the grounds on which
the writ of mandamus is sought is made out, the writ can now be issued to anybody
irrespective of the nature of the function performed. Today Prohibition is viewed as an
extensive measure concerning judicial oversight of quasi-judicial and administrative
decisions that interfere with rights.
 5. Quo Warranto
It is a Latin term, which literally translates to 'by what authority. The Courts may issue this
writ to seek information from any public official as to the authority on which that official
has assumed that certain public office. In this case, if it is found that the public office was
unlawfully obtained, the public official has to relinquish the job. Unlike the other five writs,
this one may be issued by any person.

Conditions to be satisfied for issuing the writ of quo warranto:

• The office must be open to the public, and it must be established by statute or by the
constitution;
• The office must be a substantive one.
• In appointing such a person to such a position, there must have been a violation of the
constitution or legislation, or statutory instrument.
• Unlawful Claim: This writ is issued when a person is exercising a public office
unlawfully or without lawful basis, to statutory or constitutional measures.
• Legal Authority: The petitioner has to be able to prove that the person occupies the
office unlawfully, and that there is a legal remedy for a challenge to the appointment.
Jamalpur Arya Samaj vs. Dr. D Ram & Ors. (1954)
In this case, a quo warranto writ was brought against the working committee of a private
entity, the Bihar Raj Arya Samaj Pratinidhi Sabha. The petition was refused by the court.
The Patna High Court ruled that a writ of quo warranto may only be issued against someone
who is unjustly holding a public office. In the event of a private office, it is not applicable.
G. Venkateswara Rao vs. Government of Andhra Pradesh (1966)
In this case, the court held that a private individual may make an application for a writ of
quo warranto. The individual filing the writ does not have to be directly impacted or
engaged in the issue.
Puranlal vs. P.C.Ghosh (1970)
In this case, the court held that a person's election to or appointment to a particular post is
insufficient for the issuance of quo warranto unless that person accepts the position.