INTRODUCTORY
I must begin with an apology, for the subject of this paper is not accurately reflected in its title. What I want to discuss are not only writs but also those directions and orders for which provision is made in Articles 32 and 226 of the Constitution of India.
The jurisdiction vested by these Articles in the Supreme Court of India and in the High Courts is commonly referred to as the ‘writ jurisdiction’, and although this again is not strictly accurate it is a compendious and convenient name which I propose to use.I do not intend to give a summary of the law relating to these constitutional remedies, for that can be obtained from the books. My object is to look briefly at the origin and development of the writ jurisdiction, to examine the importance which this jurisdiction has attained in India, and to consider the suitability of the jurisdiction for the purposes for which it is being used. This is not merely an academic exercise. In 1959 the number of applications made to the High Court in London for orders of certiorari, prohibition and mandamus was 22. In the same year the number of applications made to one High Court in India—the High Court at Allahabad—for the corresponding writs exceeded 4000. We are therefore considering a jurisdiction to which recourse is freely made, and one of the purposes of our enquiry is to find out why that should be so.
Now a power to issue directions in the nature of habeas corpus was possessed by all the Indian High Courts by virtue of s. 491 of the Code of Criminal Procedure. Prior however to January 26, 1950, the date upon which the Constitution of India came into force, the power of the courts to issue writs or orders of the nature of certiorari, prohibition, mandamus or quo warranto was exceedingly limited. Broadly speaking, the writs of certiorari, prohibition and quo warranto, and an order in the nature of mandamus, could be issued only by the High Courts of Calcutta, Bombay and Madras.
The writ or order did not run beyond the limits of the ordinary civil jurisdiction of the court concerned, which meant that it could be effective only within the three Presidency Towns’—and in the case of certiorari, probably the most important of these writs, it could not issue in any matter concerning the revenue or its collection, nor was it generally held to be available against either the Central or a provincial Government.The Constitution brought about a far reaching change. It declared certain rights to be fundamental; and for the purpose of the speedy enforcement of these rights it conferred on the Supreme Court and the High Courts power to issue directions, orders and writs. And at the same time it conferred on the High Courts a further power to issue such directions, orders and writs ‘for any other purpose’— with the object, it has been said, of putting the High Courts substantially in the same position as the Court of Queen’s Bench in England?
The Article which confers these new powers on the High Courts is Art. 226, and so far as is material it reads thus:
Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them for the enforcement of any of the rights conferred by Part III and for any other purpose.
Part III of the Constitution is that part which deals with fundamental rights, and it includes Article 32 which guarantees the right to move the Supreme Court for the enforcement of those rights and confers on the Supreme Court the power to issue similar directions, orders and writs for that limited purpose.
Two observations of a general nature on the jurisdiction thus conferred on the Supreme and High Courts of India may be made.
In the first place, as you will have noticed, die authority vested in the1 See Besant v Advocate-General of Madras, 481.A. 129; Ryots of Garabandho v Zamindar of Parlaldmedi, 70 LA. 129. The issue of an order in the nature of mandamus was regulated by Chap. VIII of the Specific Relief Act, 1877.
* See Electton Commissioner, India v Saka Venkata Subba Rao [1953] S.C.R. 1144 at 1150.
court is not limited to the issue of the five well-known writs which are mentioned in Articles 32 and 226, for the court may also issue, if in its opinion circumstances so require, directions or orders or even some other form of writ. Secondly, the power of the Supreme Court to grant such relief is restricted to those cases where a fundamental right has been infringed; and a direction, order or writ issued by that Court has effect throughout India. A High Court on the other hand can exercise its power under Article 226 not only for the enforcement of fundamental rights but ‘for any other purpose’; but at the same time it can exercise those powers only within the territory over which it exercises jurisdiction, that is to say within the State of which it is the High Court.
The words ‘for any other purpose’ cause some difficulty. They do of course make it clear that the court’s jurisdiction to issue writs is not confined to the enforcement of fundamental rights,1 but whether they empower the court (as the Nagpur High Court has said) to issue a writ, order or direction for any other object which it considers appropriate1 may be doubted?