Writs and their scope

Start music   Jan 3 2017 || 8:59 AM

Only FR guaranteed by the Constitution can be enforced and the Supreme Court of India has the original jurisdiction for the grievance against violations of FRs under this article. But, it cannot be invoked simply to determine the constitutionality of an executive order or legislation unless it directly infringes any of the FRs.

To Dr BR Ambedkar, Article 32 is an article without which the Indian Constitution would become a nullity. It is the very heart and soul of the Constitution.

To Supreme Court, Article 32 is one of the basic features of the Constitution.

WRITS AND THEIR SCOPE

Borrowed from the English law

Habeas corpus

Meaning – to have the body of

Purpose – To enforce Art 19(1)(d), Art 22

Who can apply? – Any aggrieved person or person related to the aggrieved

Issued against whom? - A public authority/private individual

Note – bulwark of individual liberty against arbitrary detention

Mandamus

Meaning – command; also known as ‘wakening call’

Purpose – Against inactivity (constitutional/statutory duty not discretional) of public authority

Who can apply? – Only aggrieved

Issued against whom? – Public body, corporation, inferior court, tribunal or government but not Governor or President or Chief Justice of a High Court

Prohibition

Meaning – to forbid

Purpose – When authority crosses jurisdiction

Who can apply? – Only aggrieved

Issued against whom? – Judicial or Quasi-judicial bodies

Condition – applicable only for on-going trials for which judgment is not given

Note – only preventive

Certiorari

Meaning – to be certified or to be informed

Purpose – Excess jurisdiction or lack of jurisdiction or error of law

Who can apply? – Only aggrieved; relaxation of locus standi

Issued against whom? – Judicial or Quasi-judicial bodies or administrative authorities (since 1991)

Condition – to either transfer the case to higher court or squash the order of a lower court

Note – both preventive and curative

Quo Warranto

Meaning – by what authority or what warrant

Purpose – To prevent illegal usurpation of public office by a person

Who can apply? – Any interested person

Issued against whom? – A public authority

WRIT JURISDICTION OF JUDICIARY – A COMPARISON

Supreme Court

High Court

Article 32

Article 226

Protector of Fundamental Rights only

Fundamental and ordinary legal rights

To admit mandatorily writs for FRs

Not mandatory

Against any person/authority within Indian territory

Against any person/authority within the state and if cause of action is within the state but authority outside the state jurisdiction

 

Why writ jurisdiction of HC is larger than SC?

Existing powers of HC cannot be deprived since HCs of Calcutta, Bombay, Madras (1861) and Allahabad (1866) were established before Supreme Court (1935).

When is Art 32 not applicable?

  • Martial law
  • National emergency