SCOPE OF THE FIVE PREROGATIVE WRITS (MANDAMUS, CERTIORARI, HABEUS CORPUS, PROHIBITION AND QUO WARRANTO)

Article 32 empowers the Supreme Court to issue writs in form of Mandamus, Certiorari, Habeus Corpus, Prohibition and Quo Warranto for enforcement of Fundamental Rights. Similarly, High Court can also issue aforesaid writs under Article 226 for not only enforcement of Fundamental Rights but also for other legal rights. These writs are also called prerogative writs as origin of these writs can be traced to British Monarch who enjoyed these discretionary powers over and above the statutory laws. The Indian Constitution has bestowed these discretionary powers on Supreme Court and High Courts for protection of Fundamental Rights.

MANDAMUS

Mandamus is derived from latin word “mandare” which means to command. Mandamus is a frequently invoked writ in Indian jurisdiction against government, subordinate courts and other  public authorities etc. if such authorities fail to discharge their duties. The power of issue mandamus lies with the Supreme Court under Article 32 and with the High Court under 226.

Mandamus can be issued only against a public authority if such authority is under obligation to discharge certain obligation and such authority has failed to discharge such obligation. Further, the aggrieved party has  right in his favor and has  already made a representation before the such authority for discharge of its obligation. The writ of Mandamus is generally issued if there is no alternate remedy.

Although Mandamus is a powerful tool, it cannot be issued in certain circumstances.  Supreme Court held in S. P. Gupta Vs Union of India that mandamus cannot be issued against the President or Governor to discharge their constitutional body. Mandamus cannot be issued against Parliament to enact any law.  Mandamus cannot be issued against private bodies.

The purpose of the Mandamus is to compel a public body to discharge a duty while purpose of the certiorari is to prevent judicial and quasi-judicial bodies to usurp authority, which do not vest in them.

CERTIORARI

Certiorari is word of Latin origin which means “to certify”.  The Supreme Court under Article 32 or 226 has been empowered to issue writ of certiorari to quash orders, directions or proceedings of judicial bodies or quasi-judicial bodies if such bodies have exceeded its jurisdiction.

Writ of Certiorari is issued in cases of excesses of jurisdiction, error of law, violation of natural justice or arbitrary exercise of power.

In entertaining writ of certiorari, the Court does not act as appellate court. It demolishes the order which is erroneous. The Supreme Court in its landmark case T. C. Basappa Vs. T. Nagappa (1955) SCR 250 held as  under :

One of the fundamental principles in regard to the issuing of a writ of certiorari is that the writ can be availed of only to remove or adjudicate on the validity of judicial acts. The expression “judicial acts” includes the exercise of quasi-judicial functions by administrative bodies or other authorities or persons obliged to exercise such functions and is used in contrast with what are purely ministerial acts. Atkin L. J. thus summed up the law on this point in Rex v. Electricity Commissioners.

“Whenever any body or persons 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 they are subject to the controlling jurisdiction of the King’s Bench Division exercised in these writs.”

The second essential feature of a writ of certiorari is that the control which is exercised through it over judicial or quasi-judicial Tribunals of bodies is not in an appellate but supervisory capacity. In granting a writ of certiorari the superior court does not exercise the powers of an appellate Tribunal. It does not review or reweigh the evidence upon which the determination of the inferior Tribunal purports to be based. It demolished the order which it considers to be without jurisdiction or palpably erroneous but does not substitute its own views for those of the inferior Tribunal The offending order or proceeding so as to say is put out of the way as one which should not be used to the detriment of any person.

PROHIBITION

The Supreme Court and the High Court, as the case may be, can issue writ of prohibition to   prohibit a judicial or quasi-judicial authority from transgressing its jurisdiction. The Writ of Prohibition and Writ of Certiorari are complimentary. While writ of certiorari is remedial, writ of prohibition is preventive

Nature of writ of prohibition is supervisory in nature. The object of the writ is to restrain subordinate courts/tribunals from exercising jurisdiction which they do not possess. It can be issued for excess of jurisdiction or absence of jurisdiction as well as violation of principle of natural justice. The Supreme Court in S. Govinda Menon Vs. The Union of India  1967 SCR (2) 566 observed as under :

The jurisdiction for grant of a writ of prohibition is primarily supervisory and the object of that writ is to restrain courts or inferior tribunals from exercising a jurisdiction which they donot possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine courts or tribunals or inferior or limited jurisdiction within their bounds. It is well settled that the writ of prohibition lies not only for excess of jurisdiction or for absence of jurisdiction but the writ also lies in a case of departure from the rules of natural justice. It was held for instance by the Court of Appeal in The King Vs. North that as the order of the judge of the consistory court of July 24, 1925 was made without giving the vicar an opportunity of being heard of his defence, the order was made in violation of the principles of natural justice and was therefore an order made without jurisdiction and the writ of prohibition ought to issue. But the writ does not lie to correct the course, practice or procedure of an inferior tribunal, or a wrong decision on the merits of the proceedings. It is also well -established that a writ of prohibition cannot be issued to a court or an inferior tribunal for an error of law unless the error makes it go outside its jurisdiction. A clear distinction therefore should be made between want of jurisdiction and the manner in which it is exercised. If there is want of jurisdiction then the matter is coram non judice and a writ of prohibition will lie to the court or inferior tribunal forbidding it to continue proceedings therein in excess of its jurisdiction.

HABEUS CORPUS

The term “habeus corpus” means “to have the body of”.  The Supreme Court and the High Courts  have  jurisdiction to issue writ of Habeus Corpus against illegal detention of a person. Thus, writ of Habeus Corpus is a great remedy for protection of right to life and personal liberty granted under Article 21 of the Constitution.

A writ of habeus corpus is maintainable not only against the public authority but also private person who has illegally detained a person. Writ of habeus corpus can be issued against an authority or person who has illegally detained a person or having constructive custody of the detenu.

A  writ of habeus corpus is not maintainable if the a person has been legally detained or an appeal or petition is pending before any court or detained person has already been released.

Res Judicata is not applicable on writ of habeus corpus, as it involves the most fundamental right to life and personal liberty granted under Article 21 of the Constitution. An aggrieved person can file successive petitions for seeking issue of writ of habeus corpus if circumstances have changed.

A person who has been detained can approach the High Court or Supreme Court. Any other person, who is acquainted with facts of the case, can approach the Court if he or she is conversant with the facts of the case.

Writ of habeus corpus can also be filed against preventive detention. Preventive detention, to be valid, has to strictly comply with the procedure provided under Article 22. Further such detention has to be tested on touchstone of provisions of Article 14, Article 19 and Article 21.  

The Supreme Court in A K Gopalan Vs. State of Madras AIR 1950 SC 27 and ADM Jabalpur Vs Shivkant Shukla AIR 1976 SC 1207 held that if detention of person is as per procedure established by law, such detention cannot be held invalid. But after Maneka Gandhi Vs Union of India AIR 1978  SC 597 there has been shift in  law and now detention of a  person not only have to be by procedure established by law but also such law should be fair, just and reasonable. The Supreme Court overruled ADM Jabalpur in Justice K Puttaswamy Vs. Union of India (2017) 10 SCR 569.

QUO WARRANTO

Quo Warranto is a Latin term which means “by what authority”. The objective of the writ is to ensure that public office is not occupied by unauthorized persons. The writ is only maintainable when office is of public nature i.e. the office has been established by provisions of constitution, statute or legal provision that involves public duty.

The writ of quo warranto can be issued if the public office has been occupied by a person without following the procedures prescribed by Constitution or any other legal provisions.

The writ of quo warranto can be issued if a person occupies public office ever after completion of term.

The writ of quo warranto can also be issued if a person appointed to public office does not have requisite qualification.

The Supreme  Court observed   in The University of Mysore  Vs. C. D. Govindrao  1964 SCR (4) 576 as under :

Broadly stated, the quo warranto proceeding affords a judicial remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order. In other words, the procedure of quo warranto gives the judiciary a weapon to control the Executive from making appointment to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the Executive or by reason of its apathy. It will  be , thus , seen that before a person can effectively claim a writ of quo warranto, he has to satisfy the Court that the office in question is a public office, and is held by usurper without legal authority and that inevitably would lead to the enquiry as to whether the appointment of the said usurper has been made in accordance with law or not.

The supreme court in Rajesh Awasthi vs Nandlal Jaiswal  2013 (1) SCC 501 held  that a writ of quo warranto will lie when appointment is made contrary to the statutory provisions.

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