Analysis of Writs in India

The origin of Writs took place in the English judicial system where generally the King's Bench passed orders in the forms of Writs under the Royal Seal.

The Black's Law Dictionary defines it as "A mandatory precept issuing from the Court of Justice." In India, this Order can be issued / passed by the Supreme Court or any High Court under Article 32 and Article 226 respectively. The origin of the Writs in India goes back to the Regulating Act 1773 under which a Supreme Court was established at Calcutta by a Charter in 1774. The first Writ of Capias was issued in July 1775 by Sir Elijah Impey, Chief Justice of the Supreme Court in Calcutta against Governor-General Warren Hastings.[1]

There are five types of Writs in India as mentioned under Article 32(2) and 226 i.e. Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari. Each of these Writs has a different task to perform and therefore one must be cautious while filing a petition.

Article 226 and 32 are two sides of the same coin but Article 226 is more powerful. Article 32 is a Fundamental Right in itself which is used to enforce a Fundamental Right that is being infringed. Article 226, on the other hand, is just a Constitutional Right that can be used to enforce a Fundamental Right or for 'any other purpose'. The scope of Article 226 is very vast in comparison to Article 32 because it can get suspended during the Emergency as stated in Article 359 of the Indian Constitution- "Where a Proclamation of Emergency is in operation, the President may by order declare that the right to move any Court for the enforcement of such of the rights conferred by Part III (except Article 20 and 21) as may be mentioned in the order and all proceedings pending in any Court for the enforcement of the rights so mentioned shall remain suspended for the period during which the Proclamation is in force or for such shorter period as may be specified in the order." This means that Article 32 i.e. Right to move to the Supreme Court can be taken away by a Presidential Order during the Emergency. On the other hand, Article 226 cannot be taken away even during the Proclamation of Emergency because it is a Constitutional Right and not a Fundamental Right, therefore, Article 359 does not apply here. This small thing makes a huge difference. It enables the individual to approach the High Court in almost all the circumstances and seek relief in the form of injunction or damages (which is quite a recent development).

Under Article 32, the Supreme Court enjoys Original Jurisdiction, therefore, one can directly file a petition under this Article and approach the Supreme Court instead of following the judicial channel. Also, the doctrine of Res Judicata is applicable (though not always). In Daryao v State of U.P.[2] the Court held that the jurisdiction of a High Court in dealing with any petition under Article 226 is substantially the same as the jurisdiction of Supreme Court in entertaining the application under Article 32, therefore, the Doctrine applies till the cases have been decided by the competent Court on the basis of merits.

But this equality of power binds High Courts as well as Supreme Court to keep a judicial decorum and avoid mismanagement in the application of such power. The parity of power does not mean that the High Court can entertain the matters despite the fact that the Supreme Court has already taken the matter.

When any writ petition is filed in the Court, the petitioner tries to seek remedy for the Right that is being infringed or has already been infringed. Earlier, the Courts allowed injunction or enforcement of the Right that was being violated with the help of Writs like Mandamus or Prohibition but over time the Courts have started awarding damages as compensation. This is a very helpful tool in situations where a Right has already been infringed in the past and it is no more being violated. The Court's order of injunction or enforcement of right then is futile because the Right has already been compromised. In these kinds of circumstances, nothing better than awarding damages can be used even though one cannot compensate for the curtailment of personal liberties such as Right to life in monetary terms. This could be better understood with the help of a case. In Rudul Shah v. State of Bihar[3], the petitioner was kept in jail for 14 years even after his acquittal. In this case, the Supreme Court awarded compensation for violation of Fundamental Rights.

At present, the Court awards compensation in the cases where there has been some kind of police atrocity or where the petitioner has suffered personal injuries at the hands of the government or in the cases of custodial deaths and so on. But one of the most important things, to seek compensation for violation of any Fundamental Right, is that it must be accompanied by an absolute breakdown of human rights. Then only the compensation can be awarded as a remedial measure.

All in all, the concept of Writs in India has developed a lot and is still developing and enlarging its scope. Evolution of the concept of awarding damages is a bright example of this process of development. At present, this is the need of the hour due to a substantial increase in the number of cases of human rights violation and therefore in order to protect the personal liberties and Fundamental Rights, the Courts must keep on developing this area through judicial innovation and thus carry on the task of being the protector and guarantor of Fundamental Rights and liberty.

By: Navin Kumar Jaggi & Vibhuti Bajpai

  • [1] Rex v. Warren Hastings [1775].
  • [2] AIR [1961] SC 1457.
  • [3] [1983] 4 SCC 141.

 

Navin Kumar Jaggi 
on 22 November 2019
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