CIVIL

Prerogative of writs

The prerogative of writs have been issued in England for centuries. Though we borrowed the concept of writ jurisdiction from England but in the last five decades we have enormously developed our own writ jurisprudence according to our own judicial ethos and jurisprudence. The High Court’s powers under Articles 226 and 227 have been enumerated in a very large number of cases. The extraordinary jurisdiction of the courts exist with the High Courts for doing justice and for removing injustice within the framework of the laws and the Constitution.

The Constitution has given enormous powers under Article 226 of the Constitution to the Courts to ensure effective enforcement of Constitutional Rights particularly fundamental rights. For centuries writs of habeas corpus have been considered as the most important writ for the protection of human liberty. Similarly, the writs of mandamus, prohibition, certiorari and quo warranto had proved their effectiveness in compelling the performance of public duty, in preventing inferior tribunals from going beyond their jurisdiction, in reviewing orders and convictions of inferior tribunals, and in inquiring into the right of a person to hold public office.

The most important provisions of the Constitution dealing with the protection of human rights of the citizen are incorporated in Articles 32 & 226 of the Constitution. The powers granted to the courts under Article 226 are so sacroscent, inviolable, unassailable and inalienable that those powers cannot be taken away from the court under any circumstances either by legislative enactments or judicial pronouncements.

Reasons which led the Framers of the Constitution to provide powers to High Courts and Supreme Court under Articles 226 & 32 are enumerated in Election Commission, India Vs. Saka Venkata Subba Rao and, and Rashid Ahmed Vs. The Municipal Board, Kairana, . The Apex Court in these judgments has observed that “Articles 32 & 226 have been incorporated in the Constitution primarily to ensure effective means of enforcing constitutional rights particularly fundamental rights. For centuries writs of habeas corpus have been considered as the most important writ for the protection of human liberty. Similarly, the writs of mandamus, prohibition, certiorari and quo warranto had proved their effectiveness in compelling the performance of public duty, in preventing inferior tribunals from going beyond their jurisdiction, in reviewing orders and convictions of inferior tribunals, and in inquiring into the right of a person to hold public office.

As aptly observed by the Apex Court in T.C. Basappa Vs. T. Nagappa and Another, . “that in view of the express provisions of our Constitution we need not now look back to the early history or the procedural technicalities of these writs in the English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.”

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Categories: CIVIL