WRITS

Ans. 4. The topics under discussion are as follows :-

(1) Writ jurisdiction of courts (under Judicial Review)

(2) Writ of Mandamus

(3) Writ of Certiorari

Judicial review is a crucial power that allows the judiciary to assess and potentially invalidate
laws or government actions that violate the Constitution, ensuring checks and balances
among the state organs. This power is vested in the High Courts and the Supreme Court of
India through various Articles of the Constitution, including:

 Article 13: Declares laws inconsistent with Fundamental Rights as null and void,
mandating judicial review of legislative and executive actions.
 Article 32(2): Grants the Supreme Court the authority to issue writs such as habeas
corpus, mandamus, prohibition, quo warranto, and certiorari to enforce Fundamental
Rights.
 Article 226: Empowers High Courts to issue similar writs for the enforcement of
Fundamental Rights and other legal rights, covering a broader scope compared to the
Supreme Court's jurisdiction. Thus, Article 226 guarantees an individual to move the High
Court for enforcement of his fundamental rights as well as or any other purpose, i.e., for
enforcement of any other legal right. Thus, it is wider in ambit than the writ jurisdiction of
the Supreme Court.

Thus, while both Articles 32 and 226 provide mechanisms for enforcing rights, Article 226
offers a wider jurisdiction for High Courts compared to the Supreme Court’s jurisdiction
under Article 32.

Writ is an instrument or order of the court by which the court directs an individual or official or an
authority of the State to do an act or abstain from doing an act.

As we can see from a bare reading of Articles 32 and 226, there are five types of writs, also known as
prerogative writs.

1. Habeas corpus

2. Mandamus

3. Prohibition

4. Certiorari

5.Quo warranto

WRIT OF MANVDAMUS

Mandamus means a command. The writ of Mandamus is thus an order by a Supreme Court or High
Court, commanding a person or a public authority to do or refrain from doing something in the
nature of public duty or in certain cases of a statutory duty.

Mandamus acts where the authority declines jurisdiction.

It may be issued not only to compel the authority to do something which is its legal duty but also to
restrain it from doing something. Therefore, it has a both negative and positive aspects and hence
can do work of all other writs. It can be issued on all those grounds on which Certiorari and
Prohibition can be issued.

Conditions for the grant of Mandamus

(1) There must be public or common law duty: Mandamus would be issued only to enforce a duty
which is public in nature. It will not be issued against a private individual to enforce a private right
such as enforcing a contract.

(2) There must be a specific demand and refusal - However, express demand and refusal is not
necessary, and can even be inferred from the circumstances.

(3) There must be a clear right to enforce the duty: The applicant must have a legal right to the
performance of a legal duty. The right sought to be enforced must be subsisting on date of petition.

Against whom Mandamus would lie

A writ of mandamus is available against Parliament, Legislature, Courts and tribunals, Government
and its officers and against local authorities.

Against whom Mandamus would not lie

A writ of Mandamus will not lie against the President or the Governor of a State for the exercise and
performance of power and duties of his office or for any act done by him in the exercise and
performance of those power and duties.

Case - Anadi Mukta Sadguru S.M.V.S.S.J.M.S Trust v. V.R Rudani 1989 SC

Fact- the Shri Anadi Mukta Sadguru Trust, managing a science college in Ahmedabad, faced a dispute
over pay scales for teachers. Despite an arbitration award and directives from the State Government
and University to follow the U.G.C. pay scale, the trust issued termination notices to teachers and
eventually closed the college instead of complying. The teachers then filed a writ petition seeking
arrears of salaries, provident fund, gratuity, and compensation for the closure.

Issue-Whether a writ of Mandamus could be issued against a private trust, compelling it to pay the
terminal benefits and arrears claimed by the teachers ?

Supreme Court Observation & Decision Supreme Court observed that the trust managed an affiliated
college which received public funds as government aid. The utilization of public money plays a crucial
role in the management, maintenance, and operation of educational institutions. Institutions that
receive such aid perform a public function by providing education to students and are subject to the
rules and regulations of the affiliating university.

Consequently, the employment within these institutions is considered to be of a public character.

There exists a legal right-duty relationship between the staff and the management of these
institutions.

On above observation, Supreme Court held that Mandamus was appropriate to enforce the trust to
pay the teachers their terminal benefits and arrears. The Supreme Court thus affirmed the High
Court 's decision, mandating the trust to make the necessary payments to the petitioners.

Case- Common Cause v. Union of India, 2003 SC

Fact

In this case, the Parliament did not specify the date when the Delhi Rent Control Act, 1995 would
become effective. It was left to the Central Government to decide and notify the date when the Act
would come into operation.

Issue-Whether the Central Government could be compelled by the court through the Writ of
Mandamus to issue the notification that would bring the Delhi Rent Control Act, 1995 into force ?

Supreme Court Observation & Decision

Supreme Court held that the Central Government has the authority to consider various factors
before deciding when to enforce the Delhi Rent Control Act, 1995. Therefore, no Court order
(Mandamus) can force the Central Government to issue the notification to bring the Act into effect.

WRIT OF 'CERTIORARI'

Certiorari Latin term comes from 'certify' that means to inform'. The writ is so named because in its
Latin form it required that the king should "be certified" of the proceedings to be investigated, and
the object is to keep inferior Courts and other authorities within the limits of their jurisdiction and if
they act in excess of their jurisdiction their decision can be quashed by issuing this writ by superior
Court.

A writ of certiorari can be issued against constitutional bodies, statutory bodies like corporations.
Further, it can also be used to quash judicial, quasi-judicial as well as administrative actions.

Grounds for the issue of certiorari

A writ of Certiorari cannot be granted to quash the decision of inferior Court or tribunal within its
jurisdiction on the ground that the decision is wrong. It must be shown before such writ is issued,
that the authority which passed the order acted-

The grounds for issuing a writ of certiorari include:

1. Lack of Jurisdiction: When the inferior court or tribunal acts without jurisdiction or
exceeds its jurisdiction.
2. Violation of Natural Justice: When there is a breach of principles of natural justice,
such as the right to a fair hearing.
3. Error of Law Apparent on the Face of the Record: When there is a clear error of
law in the decision that is evident without extensive examination.
4. Abuse of Jurisdiction: When the authority has misused its jurisdiction or acted in
bad faith.
5. Violation of Fundamental Rights: When the order violates the fundamental rights
guaranteed by the Constitution of India.

The writ of certiorari in India has certain limitations. These limitations include:

1. Jurisdictional Limitations: The writ cannot be issued if the inferior court or tribunal
is acting within its jurisdiction, even if the decision is erroneous.
2. Non-Interference in Fact-Finding: Certiorari cannot be used to reappreciate or
reevaluate evidence and facts. It is concerned with the legality of the decision-making
process, not the correctness of the decision.
 3. Finality of Decisions: The writ cannot be issued against legislative acts, as it is
intended to correct judicial or quasi-judicial errors.
4. Availability of Alternative Remedies: Certiorari may not be granted if there is an
adequate alternative remedy available, such as an appeal or review.
5. Timing: There is a requirement for promptness in filing a petition for certiorari.
Undue delay in seeking the writ can lead to its denial.
6. Error Apparent on the Face of the Record: The error must be evident on the face of
the record and not require detailed examination of evidence or documents.
7. Interference with Administrative Actions: Certiorari does not apply to purely
administrative actions that are not quasi-judicial in nature.
8. Lack of Standing: The petitioner must have sufficient interest or locus standi in the
matter to seek the writ.

Case- Syed Yakoob v. K.S. Radha Krishanan (1964) :

-Facts:-The State Transport Authority in Madras decided to issue two bus permits but found
only one suitable applicant, Provincial Transport (P) Ltd.
Syed Yakub, an unsuccessful applicant, appealed to a Tribunal and obtained the second
permit.This decision was challenged in the High Court, where both a Single Judge and the
Division Bench found mistakes by the Tribunal. The case was taken to the Supreme Court.
Issue -The key issue was determining the extent of the High Court's jurisdiction in issuing a writ of
Certiorari when dealing with orders made by the appropriate authority.

Supreme Court Observation and Decision:

 The Supreme Court clarified that the High Court's power to issue a writ of certiorari is
supervisory and does not grant it the authority to act as an appellate court.
 The High Court cannot review or question factual findings made by a tribunal unless
there is a clear error of law evident on the face of the record.
 A writ of certiorari can be issued in cases where:
o The tribunal wrongly refused to consider relevant and material evidence.
o The tribunal improperly admitted irrelevant evidence that influenced its
decision.
o A factual finding is made without any supporting evidence, which constitutes
a legal error and can be corrected through certiorari.
o This decision emphasized the limits of the High Court's jurisdiction in issuing
writs of certiorari, particularly in distinguishing between errors of law and
factual determinations.

Surya Dev Rai v. Ram Chander Rai 2003 SC

Facts:

 An amendment to Section 115 of the CPC, 1908 limited the High Court's authority to
issue writs like certiorari over Subordinate Courts.
 Previously, Section 115 allowed appeals against decisions of Subordinate Courts to
the High Court. The amendment restricted this provision, leading to a challenge.

Issue:-The supremacy of the High Court over Subordinate Courts under Article 227.
 2.The power to issue writs like certiorari.

Supreme Court Observation & Decision

Supreme Court held that supremacy of High Court over all Sub- ordinate Courts is basic structure of
Indian constitution and it can not be limited. Any amendment or Act can not deprive a person of the
remedy of judicial review.

Along with it Supreme Court said that Certiorari Writ under Article 226 is issued by the High Court for
correcting gross errors in exercising jurisdiction, i.e. when a Subordinate Court.

1) Acts without having jurisdiction.

2) Uses its jurisdiction improperly, going beyond its jurisdiction.

3) Disregards the law or rules of procedure, or violates principles of nature justice, causing injustice.

Supreme Court found the amendment in CPC contrary to this aforesaid provision. So Supreme Court
quashed that.

Curative Petition

A curative petition is a legal remedy in Indian law designed to address grave miscarriages of justice in
final judgments of the Supreme Court. A curative petition is filed after a review petition has been
rejected. It must be submitted to the same bench that heard the original case. Here’s a concise
overview:

Purpose:

- To correct serious errors or injustices in the Supreme Court’s final judgments.

- Acts as a last resort after a review petition has been dismissed.

Grounds:

1. Violation of Natural Justice: If the judgment is found to violate principles of natural justice.

2. Prejudice to the Petitioner: If the petitioner can show that the judgment has caused them
significant prejudice.

Key Features:

Finality: It is a measure to ensure the finality of Supreme Court decisions while allowing correction of
serious errors.

-Discretionary:The Supreme Court has the discretion to admit or reject curative petitions.

Landmark Case:

Rupa Ashok Hurra v. Ashok Hurra, AIR 2002

Facts:-Rupa Ashok Hurra filed a petition challenging the final judgment of the Supreme
Court on the ground that it caused a miscarriage of justice.
The case involved matrimonial disputes between Rupa Ashok Hurra and Ashok Hurra.

Issue:- Whether a writ petition under Article 32 of the Constitution can be filed to challenge
the validity of a Supreme Court judgment on the ground of violation of fundamental rights.

Supreme Court Observation & Decision:

 The Supreme Court held that a writ petition under Article 32 cannot be used to
challenge the final judgment of the Supreme Court.
 The Court introduced the concept of a "curative petition" to address instances where
a gross miscarriage of justice is evident.
 A curative petition can be filed only after a review petition is dismissed and must be
accompanied by certification from a senior advocate.
 The curative petition must establish:
1. Violation of the principles of natural justice.
2. Prejudice to the petitioner due to the judgment.
3. The Supreme Court emphasized that the curative petition should be used
sparingly to correct judicial errors and uphold the sanctity of final judgments.

This landmark decision introduced a mechanism to rectify errors in the Supreme Court's
judgments without undermining the finality of its decisions.