The Indian Governance System rests on 3 pillars, i.e. Legislative, Executive and Judiciary. The legislative makes the laws that are to be followed in India. The Judiciary is the custodian of law and order in the country and acts as the redressal mechanism to attain justice. The Executive is responsible for the implementation of the laws and has residuary powers.
The Supreme court is the highest court of law in India under the Constitution of India. The High courts and the Lower Courts complete the hierarchy of judiciary in India. The Supreme Court has the power of judicial review and is the custodian of the Constitution of India. The Supreme Court has original (Article 131, 32), appellate (Article 132-135) and advisory jurisdiction (Article 143) as provided by the Constitution of India.
EXTRAORDINARY ORIGINAL JURISDICTION
The Constitution of India provides for the Supreme Court and the High Courts with original jurisdiction under Article 32 and 226 respectively to issue directions, orders and writs. A Writ can be defined as an instrument that can by courts to protect the rights of Citizens against the arbitrary actions of the Government.
There are 5 writs that can be issued by Supreme Court and High Courts in India:
Habeas Corpus – used to enforce the fundamental right of individual liberty against unlawful detention.
Mandamus – used by the court to order the public official who has failed to perform his duty or refused to do his duty, to resume his work.
Prohibition – issued by a higher court against a lower court to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. It directs inactivity.
Certiorari – issued by a higher court to a lower court or tribunal ordering them either to transfer a case pending with them to itself or to squash their order in a case.
Quo-Warranto – Supreme Court or High Court can issue this writ to prevent illegal usurpation of a public office by a person.
The Supreme Court can issue writs to protect the Fundamental Rights under Article 32 (2). A writ is a discretionary remedy wherein the court can refuse to issue it if it finds lack of grounds or there being no actual encroachment by the authority. The Jurisdiction of the High Courts under Article 226 is more extensive as compared to Supreme Court. The High Court can issue writs in cases of infringement of Fundamental rights as well as for any other purpose whereas Supreme Court can only issue such writs wherein Fundamental rights are infringed due to government action.
The Supreme Court has interpreted and clarified the due process with respect to writs in India and the hierarchy of courts that needs to be followed for a case to be admitted by court. In L Chandra Kumar v. UOI, Supreme Court held that a Writ petition should be sought in front of a High Court before approaching the Supreme Court in case of decision of tribunals and it was a three-tier litigation system that was to be respected.
In the case of Sunil Batra v. Delhi Administration, it was held that the letter of a convict addressed to one of the Judges of Supreme Court can be held as a valid Writ Petition and gave a whole new scope to the Writ of Habeas Corpus against neglect of state in penal actions.
The Supreme Courts have heard and enforced writs against private officials and institutions if there is a public function and infringement of Fundamental Rights. In Praga Tools Corporation v. C A Manual, it was held that a Writ of Mandamus can be issued against a person or institution to perform duties to be taken up by them under statutes even if they aren’t a statutory body. Further in the case of Unni Krishnan v. Union of India, this was clarified by enforcing writ of Mandamus against a private college.
In the Case of AK Kraipak v. Union of India, the Court issued a Writ of Certiorari to quash the action of the selection board that was based on personal bias and thus infringed rights to the petitioner. Further in the case of Gujarat steel tubes v. Mazdoor Sabha, the corrective nature of writs was talked about and the order was quashed while reinstating the petitioner and paying them back wages.
In the Case of Isha Beevi v. Tax Recovery Officer, it was held that for a writ of Prohibition to be issued, there should be an action that can be done by the authority that will cause infringement of Fundamental Rights of Petitioner.
PUBLIC INTEREST LITIGATION
Public Interest Litigation is a socialistic measure of the Supreme Court and High Courts wherein an Individual or a group of persons can move to the Supreme Court or High Court in case of matters that affect the rights of public at large. A writ petition has to be filed before the Court and there is no need for locus standi of the petitioner, the only ground that has to be fulfilled is that the matter affects public interest at large. The Black’s law Dictionary defines ‘Public Interest’ as; Something in which the public, the community at large has something pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interest of the particular localities, which may be affected by the matters in question. Interest shared by the citizens generally in affair of local, State or national government.
In India, Public interest litigation has not been defined under any statute or in any act. It has been interpreted by judges to consider the intent of public at large. The main focus of such litigation is only Public Interest there are various areas where a Public interest litigation can be filed. Certain cases in which PILs are allowed:
Violation of basic human rights of the poor
Content or conduct of government policy
Compel municipal authorities to perform a public duty
Violation of religious rights or other basic fundamental rights
In the case of Bandhu Mukti Morcha v. Union of India, the court held that the Public Interest Litigation is not adversary litigation but a challenge and opportunity to the Government and its officers to make basic Human Rights meaningful to the deprived and vulnerable sections of the society and the Courts are to assist them in the same.
The case of Vishaka v. State of Rajasthan is a landmark judgment wherein a PIL was filed by an NGO after a woman who was trying to stop child marriage in Rajasthan was raped and later misbehaved with by the police. The Court herein, went on to give guideless for safety requirements at workplaces for women due to the absence of a law for the same.
SPECIAL LEAVE PETITION
Special Leave petition is a residuary power given to the Supreme Court under Article 136. A SLP can be allowed wherein there is a substantial question of law or gross injustice has been done to the aggrieved party. This power is available against any Court or tribunal in India except Military tribunal and court martial. Article 136 provides special power to the Apex Court to take up cases and grant leave or pass judgements in cases where it deems such action to be necessary. It is a discretionary power of the Supreme Court and it cannot be claimed as a right under Article 136. Such petition can be filed under Article 136 approaching the Supreme Court against a judgment of High Court wherein the High Court refuses to issue certificate to appeal to Supreme Court under Article 132-135. SLP can be filed against any judgment of High Court within 90 days from the date of judgement; or SLP can be filed within 60 days against the order of the High Court refusing to grant the certificate of fitness for appeal to Supreme Court.
In the case of Pritam Singh v. the State of Punjab, a special leave petition was filed appealing against the against the decision of the High Court of Punjab at Shimla, wherein his conviction on the charge of murder was upheld and the sentence of death was confirmed as passed by the Sessions Judge of Ferozepore. The Supreme court went on to look at the scope of jurisdiction of the courts under Article 136 and held that the wide discretionary power given to this Court under Article 136 is to be exercised sparingly and in exceptional cases only, and as far as possible a more or less uniform standard should be adopted in granting special leave in the wide range of matters which can come up before it under this article. The court went on to say that under Article 136, they can grant special leave in civil cases, in criminal cases, in income-tax cases, in cases which come up before different kinds of tribunals and in a variety of other cases and the only uniform standard which could be laid down is that Court should grant special leave to appeal only in those cases where special circumstances are shown to exist.
Further, in the case of Tirupati Balaji Developers Pvt. Ltd. Vs. State of Bihar, certain number of builders had filed a special leave to appeal against the interim order of the High Court of Bihar restraining all construction work on entire stretch of a public street. The Supreme Court looked into the power of Supreme Court to supervise High Courts in India. The Court held that the High Court is not a court “subordinate” to the Supreme Court and High Courts have a wider power to issue writs as compared to the Supreme Court. The Supreme Court is at a superior place in the hierarchy as it is the highest court of appeal, law declared by it is binding on all Courts, it has the power to transfer cases from one High Court to another or to itself and Article 144, which requires all authorities including the High Court to act in aid of the Supreme Court.
CONCLUSION AND ANALYSIS
Writs are a tool in the hands of courts in order to stop infringement of rights or to undo arbitrary actions of the government. The Supreme Court’s jurisdiction is limited to infringement of Fundamental Rights whereas the High Court can issue them for other purposes too giving the High Courts more power under this jurisdiction. Further, the scope of writs has been increased with the coming of Public Interest Litigation and Special Leave Petitions giving the courts more freedom to step in and take cases in which they would not have jurisdiction otherwise. The Supreme Court has been libreal with the interpretation of locus standi under PILs and public interest has been given top priority. Hence, it can be concluded that Writs act as a corrective measure that can be used by Courts to keep the government actions in check and act as the custodian of law and justice in the country.
M.P. Jain, Indian Constitutional Law, (80th Edition)
Dr. J.N. Pandey, Constitutional Law of India (55th Edition)
V.G. Ramachandran, Law of Writs (6th Edition)
Nirmalendu Bikash Rakshit, Right to Constitutional Remedy: Significance of Article 32, Economic and Political Weekly, vol. 34, pp. 2379–2381 (1999).
Zachary Holladay, Public Interest Litigation in India as a Paradigm for Developing Nations, Indiana Journal of Global Legal Studies, vol. 19, pp. 555–573 (2012).
Christopher Forsyth and Nitish Upadhyaya, The Development of the Prerogative Remedies in England and India: The Student Becomes the Master? , National Law School of India Review, vol. 23, pp. 77–85 (2011).
Various judgments of the Supreme Court of India