Writ jurisdiction of SC and HCs in a nutshell

The Constitution of India confers upon the Supreme Court and all High Courts, u/Arts. 32 & 226 respectively, the power to issue 5 kinds of writs (directions), viz. Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari, for enforcing fundamental rights (in case of High Courts, 'for any other purpose'). A two-judge bench of the Supreme Court has held in Sep 2020 [in Neelam Manmohan Attavar vs Manmohan Attavar (Decd) Through LRs, Transferred Case (Criminal) No. 1 of 2020], that a writ petition u/Art. 226 is not maintainable to challenge an order passed by the High Court in exercise of its judicial powers.

Habeas corpus (“Produce the body”) is a powerful remedy used to enforce immediate production before the court of a person who has gone missing or has been allegedly held illegally or unjustifiedly, or is otherwise not reachable or traceable. 

Mandamus is issued to enforce the exercise of public responsibilities by authorities of all kinds. The aim is to prevent disorder arising from a failure of justice, where justice has not been granted despite being requested.

The writs of Prohibition (popularly called a “Stay Order”), and Certiorari are identical in several aspects – both are issued on similar grounds, by the superior court to the inferior court or to a court or body exercising judicial or quasi-judicial functions. Prohibition is issued to prevent a decision or administrative action from taking place in the proceedings. On issue of the writ, the proceedings cannot proceed further. Certiorari, on the other hand, is issued to quash (demolish/ cancel) a decision already made/ order issued by a lower authority. 

Hari Vishnu Kamath v Ahmad Ishaque, AIR 1955 SC 233, 1955 SCR (1)1104 is a landmark decision that has been cited in more than 550 cases since 1955. In this case, the Supreme Court held that both certiorari and prohibition may be needed for prayer in certain cases. It also held that as the writ of certiorari merely demolishes an order, the presence of the offender before the Court is not necessary for exercise of its jurisdiction. 

Quo Warranto is the last type of writ. A quo warranto proceeding affords a judicial remedy by which a person holding an independent substantive public office has to show by what right he holds the office, so that his title to it may be duly determined. If it is found that the holder of the office has no title, he would be ousted from that office by judicial order. The High Court can only issue a writ of Quo Warranto when an appointment contravenes statutory rules.

Tanmay Gujarathi
Tanmay Gujarathi

Final Year Law Student at University of Mumbai

A law aspirant who is fond of blogging and public speaking. Likes to learn new things and unlearn outdated stuff


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