Melveen Abhishekh, Judicial Reviwe, Main Body Sem IX Roll No 67

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY
CHAPTER-I
INTRODUCTION
I
AM OF THE VIEW THAT IF THERE IS ONE FEATURE OF OUR
CONSTITUTION
WHICH,
MORE THAN ANY OTHER IS BASIC AND FUNDAMENTAL TO THE MAINTENANCE OF

DEMOCRACY AND THE RULE OF LAW, IT IS THE POWER OF JUDICIAL REVIEW AND IT IS
UNQUESTIONABLY, TO MY MIND, PART OF THE BASIC STRUCTURE OF THE
CONSTITUTION
-
JUSTICE BHAGWATI
According to justice Bhagwati judicial Review basically is an aspect of judicial power of
the state which is exercised by the courts to determine the validity of a rule of law or an action of
any agency of the state. In the legal systems of modern democracies it has very wide
connotations. The judiciary plays a very important role as a protector of the constitutional values
that the founding fathers have given us. They try to undo the harm that is being done by the
legislature and the executive and also they try to provide every citizen what has been promised
by Constitution. All this is possible because of the power of judicial review.
Hence the scope of judicial review before Indian courts has evolved in three dimensions
firstly, to ensure fairness in administrative action, secondly to protect the constitutionally
guaranteed fundamental rights of citizens and thirdly to rule on questions of legislative
competence between the centre and the states. The power of the Supreme Court of India to
enforce these fundamental rights is derived from Article 32 of the Constitution. It gives citizens
the right to directly approach the Supreme Court for seeking remedies against the violation of
these fundamental rights. This entitlement to constitutional remedies is itself a fundamental right
and can be enforced in the form of writs evolved in common law such as Habeas corpus (to
direct the release of a person detained unlawfully), Mandamus (to direct a public authority to
do its duty), Quo Warranto (to direct a person to vacate an office assumed wrongfully),
prohibition(to prohibit a lower court from proceeding on a case) and Certiorari (power of the
higher court to remove a proceeding from a lower court and bring it before itself). Besides the

Supreme Court, the High Courts located in the various States are also designated as
constitutional courts and Article 226 permits citizens to file similar writs before the High Courts.
Traditionally, anyone seeking judicial review had to use the common law procedure of
seeking the issue of a prerogative writ. A prerogative writ is formally an order from the
sovereign (i.e. the King or Queen) to an inferior tribunal or court. The High Court now calls
them constitutional writs (writs). A writ, in common law, is a formal written order,
specifically issued by a body with judicial or administrative jurisdiction; in modern times, these
bodies are typically a court system. As a result of this definition, all warrants, subpoenas and
prerogative writs are common forms of writs. In this research paper I focused on in only two
types of writs which are writs of mandamus and writ of Certiorari and the comparison between
these two writs.
RESEARCH METHODOLOGY
PROBLEM/ ISSUE:-
Analyzing and comparison the differences between writ of mandamus and writ of
certiorari. In the outlook of status and power of these two writs against other writs and the
importance of these two writs in the principal of judicial review
RATIONALE:The results of this study would check the utility of these two writs of mandamus
and writs of Certiorari in judicial review, as in absence, there will be no one to secure the
Constitutional limitations which are quite necessary in a system of limited government.
OBJECTIVE AND AIMS :-
1) To trace the source and development of writs in India.

2) To identify the principles and procedures adopted by the courts in India in
relation to the writs under the judicial review.
3) To see how judicial review has maintained the supremacy of the
constitution only by though writ of mandamus and writ of certiorari.

4) To come up with the recommendations for making the system of judicial
review in India more effective by using these two writs which are writ of mandamus and
writ of certiorari.
REVIEW OF LITERATURE:
DE SMITH'S JUDICIAL REVIEW, 7TH EDITION, SWEET & MAXWELL PUBLICATION, A

THOMSON REUTERS BUSINESS, UK
According to the author one of the central characteristics of the English common law
is the writs .In the earliest time, the royal writs were sealed governmental document,
drafted in a crisp, business-like manner, by which the king conveyed notification or
orders.
PROF. JAIN, M.P.INDIAN CONSTITUTIONAL LAW, FIFTH EDITION, LEXIS NEXUS

BUTTERWORTHS WADHWA NAGPUR, 2008
According to author many of the principal relating to judicial review which is
common to Art.32 and Art.226 will be found in the text dealing with judicial review,
and as such, may be read together. Article 32(1) guarantees the right to move
Supreme Court, by appropriate proceedings, for the enforcement of the fundamental
right enumerate in the constitution .Article 32(2) empowers the supreme court to
issue appropriate order or direction,or writs including writs in the nature of hurbeas
corpus, mandamus, prohibition, quo warronto and certiorari which may be
appropriate, for the enforcement of the petitioners fundamental right .
SINGH, MAHENDRA P.,V. N. SHUKLAS, CONSTITUTION OF INDIA, ELEVENTH

EDITION, EASTERN BOOK COMPANY, LUCKNOW, 2008
According to author by clause (1) of article 226,a twofold territorial limitation has
been placed on the power of the high courts to issue writs, Firstly ,the power into be
exercised throughout the territories in relation to which it exercise jurisdiction
secondly, the person or authority to who be a High court issues such a writs must be

within these territories It clearly imp0lies that they must be amenable to its
jurisdiction either by residence or location within those territories .
JUSTICE B P BANERJEE, WRIT REMEDIES, 6TH EDITION ,LEXIS NEXIS,2013

The author has made a very earnest effort in his treaties Writ Remedies to deal with
all aspect of the writs and its jurisdiction with reference to more than 2700 cases.
Judicial control is the essential function to perform in respect of all these
administrative action in the interest of justice and fair play and for upholding the rule
of law .when it is established by the decision of the Supreme court that judicial
review is one of the basic structure of the constitution and even under Article 323A
and 323B of the constitution which expressly conferred power upon the legislature to
exclude the jurisdiction of the court in respect of the matter to be decide by those
tribunal and the jurisdiction of the court was barred ,the supreme court came with a
heavy hand to uphold the power of the high court under Article 226 of the
constitution and it was held that taking away the jurisdiction of the High court.
HYPOTHESIS:-
1) Judicial review and approaches of Supreme court And High court through writs served the
purpose of acting as a limitation on the authority of the public officials.
2) In countries adhering to the principle of legislative supremacy the scope of writs is somewhat
limited in the sense that the review power of the courts is confined to the review of
administrative actions.
3) The country like India or U.S.A which is having written constitution or federal type has wider
scope writs than the county like U.K
5

4) By the writs petition is open to examine of the legislative, administrative and judicial
actions of the state.
NATURE, SOURCES & TYPE OF STUDY:-
Judicial review in India is practiced in respect of any kind of State action, such as
legislative action, the administrative action or the judicial action, the research paper is limited up
to the remedies of judicial review. The research methodology used for the present research article
is traditional Doctrinal research method. As most of the information can be sought form the
available literature. So the researcher has chosen doctrinal method as method of research for the
present article and has used books, journals, research articles for preparation of the same.
LIMITATION:-
Although the research paper has reached its aims, there are stated the approaches of these
remedies to the courts by the help of various type of writs. For the sake of convenience and for
detail study, the researcher has limited the present topic to the characteristic from writs of
Mandamus and writs of Certiorari.
CONTRIBUTION:-
I have contributed more than 50 case law to present my topic and my general idea over
the Writs and there taken as a whole aspect of Judicial review and producer behind approach
these writs in general.
6
CHAPTER -II
WRITS
DEFINITION OF WRITA writ, in common law, is a formal written order, specifically issued by a body with
judicial or administrative jurisdiction; in modern times, these bodies are typically a court system.
As a result of this definition, all warrants, subpoenas and prerogative writs are common forms of
writs. The word Writ means a written document by which one is summoned or required to do or
refrain from doing something.1 Historically writ originated and developed in British legal system
As defined by Blackstone,-Writ is a mandatory letter from the king-in- parliament, sealed with his great seal, and
directed to the Sheriff of the country wherein the injury is committed or supposed so to be
requiring him to command the wrongdoer or party caused either to do justice to the complainant,
or else to appear in court and answer the accusation against him.
In India Article 32 and 226 of the Constitution gives power to the Supreme Court and High Court
to issue writs in case of breach of Fundamental rights of any citizen by the state. By such writs
the Judiciary can control the administrative actions and prevent any kind of arbitrary use of
power and discretion.
There are 5 kinds of writs
- Mandamus
1 Md. Abdul Halim, Constitution, Constitutional law and politics: Bangladesh perspective, 3rd ed.
(Dhaka: CCB Foundation, 2006

- Certiorari
- Prohibition
- Quo warranto
- Habeas corpus.
ORIGIN- UK, USA & INDIA:In UK the judges also developed the writ system. A writ is simply a document setting out
the details of a claim. Writs were issued to create new rights not recognised by the local courts
and this helped to attract business. Over a period of time the writ system became extremely
formal and beset with technicalities and claims would only be allowed if they could fit into an
existing writ. The rule was 'no writ, no remedy'. For example, certain writs of trespass would
only be issued for those acts done with force and arms against the King's Peace. If the two
requirements were not met, a person had no claim.2
Even if a writ was obtained, the judges would often spend more time examining the
validity of the writ than the merits of the claim. Writs were issued by the clerks in the
Chancellor's Office and they began to issue new writs to overcome these difficulties, in effect
creating new legal rights.
In 1258 the Provisions of Oxford forbade the issue of new writs without the permission
of the King in Council. As a result the common law became rigid and the rules operated unjustly.
In 1285 the Statute of Westminster II authorised the clerks to issue new writs but only if claims
were in 'like cases' to those before 1258. This was restrictive and made further development of
the common law very technical.3
2 http://www.lawteacher.net/english-legal-system/lecture-notes/equity.php
3 Ibid

In the sense in which judicial review is understood in England, it is the power of a Court
to hold illegal and hence unenforceable any action by a public official or any judicial or quasijudicial act or proceeding of Subordinate Courts and tribunals or other administrative bodies and
to enforce their performance of statutory duty. The principle has been extended in written
Constitutions to cover the power of a Court to declare a law and even a constitutional
amendment unconstitutional on the ground of its inconsistency with or repugnance to the
Constitution. In later years, judicial review has come to embrace the power of a Court to enforce
the fundamental rights guaranteed by the Constitution and also to declare a law or an official
action to be invalid if it contravenes a fundamental right.4
As Dicey demonstrated a century ago, abstract declarations of the rights of man are of
little value unless there are definite means or machinery for such rights in case any of those
rights are violated by the State or its officials. He insisted that even where such rights are
guaranteed by a written Constitution, as in the U.S.A. what is more important is not declaration
of the rights in the Bill of Rights, but the means of enforcing those rights under the American
constitutional system. Conversely, he added, a basic right, such as the right to personal liberty
existed in the U.K. even in the absence of any guarantee by a written Constitution, because the
ordinary law provided the means of redress if an Englishmans personal freedom was violated by
government action.5
In USA the development of English Common Law relied on the courts to issue writs that
allowed persons to proceed with a legal action. Over time the courts also used writs to direct
other courts, sheriffs, and attorneys to perform certain actions. In modern law, courts primarily
use writs to grant extraordinary relief, to grant the right of appeal, or to grant the sheriff authority
to seize property. Most other common-law writs were discarded in U.S. law, as the courts moved
to simpler and more general methods of starting civil actions.
4 Maitland F. W. The Forms of Action at Common Law. Cambridge University Press 1962
5 Baker, J. H. An Introduction to English Legal History. Butterworths 1990. ISBN 0-406-53101-3

U.S. courts commonly use several extraordinary writs, which are issued only when the
courts believe that usual remedies have failed. The writ of Habeas Corpus, sometimes called the
"great writ," is probably the best-known example of a writ. 6 A writ of habeas corpus is a legal
document ordering anyone who is officially holding the petitioner (the person requesting the
writ) to bring him into court to determine whether the detention is unlawful. A federal court can
hear an application for a writ of habeas corpus by a state prisoner who is being held in custody,
allegedly in violation of the U.S. Constitution or the laws of the United States.
The writ of Mandamus is an extraordinary writ that directs a public official or
government department to take an action. It may be sent to the Executive Branch, the legislative
branch, or a lower court. The famous case of Marbury v. Madison7, which established the right
of Judicial Review of congressional statutes, was an action for a writ of mandamus. William
Marbury asked the court to issue the writ to Secretary of State James Madison, commanding him
to deliver his judicial commission. The Court, however, refused to issue the writ of mandamus.
The writ of prohibition is another extraordinary writ and is the opposite of a writ of
mandamus, because it commands a government official not to take a specified action. The most
common use of the writ is by an appellate court to a lower court, commanding the lower court to
refrain from a proposed action. For example, a trial court might grant a request by the news
media to release information from a court file. A defendant who objects to the release could
petition for a writ of prohibition from the court of appeals. If the appellate court issues the writ,
the trial court may not release the information.
The writ of certiorari is an extraordinary writ issued by an appellate court that is used by
that court when it has discretion on whether to hear an appeal from a lower court. If the writ is
6 Milsom, S. F. C. Historical Foundations of the Common Law (second edition). Butterworths 1981.
ISBN 0-406-62503-4
7 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803),
10

denied, the lower court decision remains unchanged. The U.S. Supreme Court has used the
petition and writ of certiorari to control its caseload since 1925.
The extraordinary writ of Quo Warranto starts a proceeding in which the state challenges
the legality of the use of an office, franchise, charter, or other right that can be held or used under
authority of the state. For example, a writ of quo warranto would be used to remove a person
who illegally holds public office, or to nullify an illegal amendment to a municipal charter.
IN INDIA
HISTORICAL BACKGROUND
The origin of writs in India goes back to the Regulating Act, 1773 under which Supreme
Court was established at Calcutta. The charter also established other High courts and these High
Courts had analogous power to issue writs as successor to the Supreme Court. The other courts
which were established subsequently did not enjoy this power. The writ jurisdiction of these
courts was limited to their original civil jurisdiction which they enjoyed under section 45 of the
Specific Relief Act, 1877.
Under the Indian legal system, jurisdiction to issue 'prerogative writs' is given to the
Supreme Court, and to the High Courts of Judicature of all Indian states. Parts of the law relating
to writs are set forth in the Constitution of India. The Supreme Court, the highest in the country,
may issue writs under Article 32 of the Constitution for enforcement of Fundamental Rights and
under Articles 139 for enforcement of rights other than Fundamental Rights, while High Courts,
the superior courts of the States, may issue writs under Articles 226. The Constitution broadly
provides for five kinds of "prerogative" writs: habeas corpus, certiorari, mandamus, quo warranto
and prohibition.
A writ means an order. A warrant is also a type of writ. Anything that is issued under an
authority is a writ. In this sense, using the power conferred by Article 32, the Supreme Court
issues directions, orders or writs. As we know that Article 32(3) confers the power to parliament
11

to make law empowering any court to issue these writs. But this power has not been used and
only Supreme Court by Article 32 (2) and High Courts (Article 226) can issue writs. Meaning of
habeas corpus, mandamus, prohibition, quo warranto and certiorari Habeas corpus, mandamus
quo warranto and certiorari are Latin words. They have different meaning and different
implications.
The Indian judiciary has dispensed with the traditional doctrine of locus standi, so that if
a detained person is not in a position to file a petition, it can be moved on his behalf by any other
person. The scope of habeas relief has expanded in recent times by actions of the Indian
judiciary.8
REMEDIES OF JUDICIAL REVIEW :-WRITS
CERTIORARI
Certiorari is a Latin term being in the passive form of the word Certiorare meaning to
inform. It was a royal demand for information. Certiorari can be described as one of the most
valuable and efficient remedies. Certiorari is one of the five prerogative writs adopted by the
Indian Constitution under Article 226 which would be enforced against the decisions of the
authority exercising judicial or quasi judicial powers. Such powers are exercised when the
authorities have failed to exercise the jurisdiction though vested in it or failed to exercise the
jurisdiction though vested on him or to correct the apparent error on the face of record or there is
violation of the principle of natural justice. An instance showing the certiorari powers was
exercised by the Honble Supreme court in A.K.Kraipak v. Union of India9 , where the selection
was challenged on the ground of bias. The Supreme Court delineated the distinction between
quasi judicial and administrative authority. The Supreme Court exercising the powers issued the
writ of Certiorari for quashing the action.
8 www.leadthecompetition.in/GKT/gktopics.html
9(AIR 1970 SC 150)
12

PROHIBITION
The writ of Prohibition is issued by the court exercising the power and authorities from
continuing the proceedings as basically such authority has no power or jurisdiction to decide the
case. Prohibition is an extra ordinary prerogative writ of a preventive nature. The underlying
principle is that prevention is better than cure . In East India Commercial Co. Ltd v. Collector
of Customs 10, a writ of prohibition is an order directed to an inferior Tribunal forbidding it from
continuing with a proceeding therein on the ground that the proceeding is without or in excess of
jurisdiction or contrary to the laws of the land, statutory or otherwise.
MANDAMUS
Mandamus is a judicial remedy which is in the form of an order from a superior court to any
Government agency, court or public authority to do or forbear from doing any specific act which
that body is obliged to do under the law . The writ of mandamus is issued whenever the public
authorities fail to perform the statutory duties confirmed on them . Such writ is issued to perform
the duties as provided by the state under the statute or forbear or restrain from doing any specific
act. The first case reported on the writ of mandamus was the Middletone case in 1573 wherein a
citizens franchise was restored. The writ of mandamus can be issued if the public authority
vested with power abuses the power or acts mala fide to it. In Halsburys Laws of England , it
is mentioned that,
As a general rule the order will not be granted unless the party complained of has known what it
was required to do, so that he had the means of considering whether or not he should comply,
and it must be shown by evidence that there was a distinct demand of that which the party
seeking the mandamus desires to enforce and that that demand was met by a refusal.
QUO WARRANTO
Quo Warranto means by what warrant or authority. Quo Warranto writ is issued against the
person of public who occupies the public seat without any qualification for the appointment. It is
issued to restrain the authority or candidate from discharging the functions of public office. In
10 AIR 1957 Cal 606, 1957 CriLJ 1116
13

University of Mysore v. Govinda Rao11 the Supreme Court observed that the procedure of quo
Warrato confers the jurisdiction and authority on the judiciary to control executive action in
making the appointments to public offices against the relevant statutory provisions; it also
protects a citizen being deprived of public office to which he may have a right.
HABEAS CORPUS
The Latin term Habeas Corpus means have the body. The incalculable value of habeas corpus
is that it enables the immediate determination of the right of the appellants freedom . The writ
of Habeas Corpus is a process for securing liberty to the party for illegal and unjustifiable
detention. It objects for providing a prompt and effective remedy against illegal restraints. The
writ of Habeas Corpus can be filled by any person on behalf of person detained or by the
detained person himself. It is a judicial order issued by Supreme Court or High Court through
which a person confined may secure his release. The writ of Habeas Corpus can be filed by any
person on behalf of the other person. In Icchu Devi v. Union of India 12 , the Supreme Court held
that in a case of writ of Habeas corpus there are no strict observances of the rules of burden of
proof. Even a post card by any pro bono publico is satisfactory to galvanize the court into
examining the legality of detention. In A.D.M. Jabalpur v. Shivakant Shukla13 , it was observed
that the writ of Habeas Corpus is a process for securing the liberty of the subject by affording an
effective means of immediate relief from unlawful or unjustifiable detention whether in prison or
private custody. By it the High Court and the judges of that court at the instance of a subject
aggrieved command the production of that subject and inquire into the cause of his
11 1965 AIR 491,
12 1980 AIR 1983,
13 1976 AIR 1207, 1976 SCR 172
14

imprisonment. If there is no legal justification for that detention, then the party is ordered to be
released.
CONSTITUTIONAL PROVISIONS
The makers of the Constitution have adopted the English remedies in the Constitution under
Articles 32 and 226. There has been specifically made provisions in the Constitution which
empowers the Supreme Court and High Courts to issue writs in the nature of Habeas Corpus,
Mandamus, Prohibition, Quo Warranto and Certiorari. The fundamental rights which are
inalienable sacrosanct in nature and character which were conceived in national and public
interest could be illusory if there is no constitutional machinery provided for its enforcement.
Unless such constitutional remedies for its enforcement is not provided the rights guaranteed by
part III of the Constitution cannot be ever implemented by the citizens. Article 32 contained in
Part III is itself a fundamental right given to the person under the Constitution. Similarly Article
226 of the Constitution is conferred on the High Courts to exercise its prerogative writs which
can be issued against any person or body of person including the government. The distinction
between the two remedies is very negligible. The remedy under Article 32 is confined to
enforcement of fundamental rights whereas Article 226 is available not only against the
enforcement of fundamental rights but also for any other purpose. Thus the constitution provides
the discretionary remedies on the High Court and the Supreme Court. In the absence of the
provisions of such remedies no one can enforce its rights given. Thus wherever there is a right
there must be a remedy for it. Thus it should satisfy the maxim, ubi jus ibi remedium.
One of the principle makers of the constitution, Dr. Ambedkar has given the prime importance to
Article 32 among all other articles from the Indian Constitution. He has referred that, It is the
very soul of the Constitution and the very heart of it .
In Devilal v. STO 14, it has been marked that,There can be no doubt that the Fundamental
Rights, guaranteed to the citizens are a significant feature of our Constitution and the High
Courts under Article 226 are bound to protect these Fundamental Rights.
14 1965 AIR 1150, 1965 SCR (1) 686
15

Justice Subbarao in the case of Basheshwar Nath v. Commissioner, Income Tax15 ,stated that,
A large majority of people are socially poor educationally backward and politically yet not
conscious of their rights, cannot be pitted against the state or the institution or they cannot be put
on equal status with the state or large organisations. The people are requires to be protected from
themselves. It is therefore the duty of the court to protect their rights and interests. Fundamental
rights are therefore transcendental in nature and created and enacted in national and public
interest and therefore they cannot be waived.
In Daryao v. State of U.P.16 , it was held that the right to obtain a writ must equally be a
fundamental right when a petitioner presents the case. Thus, it cannot merely be considered as an
individuals right to move the Supreme Court but it is also the duty and responsibility of the
Supreme Court to protect the fundamental rights.
Powers of the Supreme Court
The Power of judicial review is a constitutional power since it is the Constitution which invests
these powers in the Supreme Court and the High Courts in the States. So far the Supreme Court
is concerned the relevant Articles are 32 with Articles 12 and 13 and Article 136. Article 32
empowers the Supreme Court to issue directions, orders or writs (which are specifically
mentioned therein) for the enforcement of fundamental rights. What is unique about Article 32 is
that the right to move the Supreme Court under this Article is itself a Fundamental Right. Thus
the Supreme Court is made guarantor or protector of the fundamental rights. Dr. Ambedkar
called it the soul of the Constitution. The Supreme Court has further expanded the scope of this
Article even in cases where no fundamental right is involved. In Jhumman Singh v. CBI 17, it
was held that where a person manipulated facts in order to get a decree by a court to defeat the
ends of justice, in such a situation petition was held to be maintainable under Article 32. Though
15 1959 AIR 149, 1959 SCR Supl. (1) 528
16 1961 AIR 1457, 1962 SCR (1) 574
16

Article 32 is called cornerstone of the democratic edifice, it becomes inconvenient for the
Supreme Court to entertain petitions under original jurisdiction since it could overload the court.
Therefore, sometimes the Supreme Court suggests that the petitioner should first
approach the High Court under Article 226 before coming to the Supreme Court under Article
32.
Article 136-A Special Power of Judicial Review
Under Article 136, the Supreme Court may grant special leave to appeal against any decision of a
Tribunal. What is a Tribunal is not defined, but the Supreme Court has interpreted it in a liberal
way. A tribunal is a body or authority which is vested, with judicial power to adjudicate on
question' of law or fact, affecting the rights of citizens in a judicial manner. Such authorities or
bodies must have been constituted by the state and vested with judicial as distinguished from
administrative or executive functions.
Article 136 does not confer a right of appeal as such but a discretionary power on the Supreme
Court to grant special leave to appeal. The Supreme Court has held that even in cases where
special leave is granted, the discretionary power continues to remain with the court even at the
stage when the appeal comes up for hearing. Generally, the court does not, grant special leave to
appeal, unless it is shown that exceptional and special circumstance exist, that substantial and
grave injustice has been done and the case in question presents sufficient gravity to warrant a
review of the decision appealed against. It confers a very wide discretion on the Supreme Court
to be exercised for satisfying the demands of justice.
In Bharat Coking Coal Co. v. Karam Chand Thapar 18, the Supreme Court held, Article
136 has been engrafted by the founding fathers of the Constitution for the purpose of avoiding
17 1995 (3) SCC 420. Also see M.C.Mehta v. Union of India, A.I.R 1987, SC 965
18
2003(1)SCC 6.
17

mischief of injustice on the wrong assumption of law. The justice delivery system of the country
prompts this court to interfere under Article 136 of the Constitution when the need of the society
stands established and the judgment, if left outstanding, would not only create prejudice but
would have otherwise adverse effect upon the society.
Powers of the High Courts

Article 226 clause (1) empowers the High Courts in the States or Union Territories to issue to
any person or authority including any Government within their territories, directions, orders or
writs for the enforcement of the fundamental rights or for any other purpose.
The power of judicial review of the High Court under Article 226 is wider than that of the
Supreme Court under Article 32 of the Constitution. The expression 'for any other purpose'
enables the High Court to exercise their power of judicial review for the enforcement of ordinary
legal rights which are not fundamental rights. High Court can issue a writ to a person or authority
not only when it is within the territorial jurisdiction of the court but also when it is outside its
jurisdiction provided the cause of action wholly or partly arises within its territorial jurisdiction.
This power of the High Court under Article 226 is concurrent with the power of the Supreme
Court under Article 32 of the Constitution.
Article 227 clause (1) confers the power of 'superintendence over all courts and tribunals
throughout the territories in relation to which it exercises jurisdiction. However, this power does
not extend, like Article 136, over any court or tribunal constituted under any law relating to the
Armed Forces.
This power is in addition to the power conferred upon the High Court under Article 226
which is of a judicial nature. Is this power of superintendence, administrative or judicial? Under
the Government of India Act, 1935 this power extended only to the courts and was of
administrative nature only. Under the Constitution it is extended to the tribunals and section 224
18

clause (2) of the Government Of India Act, 1935, which made it of administrative nature, was
not retained in Article 227. Therefore, the power of superintendence under Article 227 is of an
administrative as well as judicial nature. The parameters of this power are well settled and it is
exercised on the same grounds as the power of judicial review. They are:
It can be exercised even in those cases where no appeal or revision lies to the High Court;
The power should not ordinarily be exercised if any other remedy is available even if it
involved inconvenience or delay.
The power is available where there is want or excess of jurisdiction, failure to exercise
jurisdiction violation of principles of natural justice and error of law apparent on the face
of the record;
In the exercise of this power the High Court does not act as appellate tribunal.
It does not invest the High Court with an unlimited prerogative to interfere in cases where
wrong decisions have been arrived at by judicial or quasi-judicial tribunals on questions
of law or fact. There has to be grave miscarriage of justice or flagrant violation of law
calling for interference.
Tribunal under Article 227 has the same meaning as under Article 136 for the Supreme Court. In
Surya Dev Rai v. Ram Chander Rai19, the Supreme Court held that the purpose underlying
vesting of this jurisdiction under Article 227 is paving the path of justice and removing its
obstacles therein.
Thus a very wide discretionary power is provided to the High Courts under articles 226 and 227.
However, it must be exercised according to the principles of judicial review.
COMPARISON BETWEEN ARTICLE 32 AND ARTICLE 226
After going through the broad contours of the powers of the Supreme Court under Article 32 and
that of the High Courts under Article 226 of the Constitution, it is revealed that the nature of
these powers is almost the same but still they can be distinguished in their scope. The first and
19
. A.I.R 2003 SC 3044; Also see Shiv Shakti Cooperative Housing Society, Nagpur v. M.S Swaraj
Developers A.I.R 2003 SC 2434
19

foremost difference between the scope of these powers is that the powers of the Supreme Court
under Article 32 of the Constitution are limited only to the enforcement of fundamental rights,
whereas the High Court can exercise such powers for any other purpose also apart from the
enforcement of fundamental rights. Therefore, the High Court encompasses a wider area of
jurisdiction as far as the subject of the writ jurisdiction is concerned. On the other hand, the
Supreme Court has a wider territorial jurisdiction than the High Courts. Although the Parliament
is duly empowered under Article 139 of the Constitution to invest the Supreme Court with
powers to issue writs, directions or orders for the purposes other than the enforcement of
fundamental rights. But no such law has been enacted by the parliament so far. Moreover, being
Apex Court of the country, it would not be practically in the interest of justice to thrust more
responsibility on the Supreme Court under Article 139 of the Constitution and rightly so, the
Parliament did never attempt it.
The powers of the Supreme Court are further fortified under other provisions of the
Constitution apart from Article 32. If to see the powers of the Apex Court in the entirety of the
constitutional provisions, including the powers being exercised by the court under Articles 32,
136 and 142 of the Constitution, it has enormous powers to safeguard the rights of the citizen in
any manner and at any place. No doubt the scope of writ jurisdiction is wider with the High
Courts than that of the Supreme Court, but the Supreme Court has got open and undefined
powers under Article 142 to pass such decree or make such order -as is necessary for doing
complete justice in any cause or matter pending before it. Therefore, Article 142 grants sort of
residuary powers to the 32
Supreme Court under which any cause or matter may be decided by passing any decree or order.
Similarly, under Article 136 of the Constitution, the Supreme Court has got powers to grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause
or matter, passed or made by any court or tribunal in the territory of India. The powers of the
Supreme Court under Article 136 are discretionary and even an appeal against the interim orders
of a court or tribunal can be entertained by the Supreme Court under this provision.' Thus
practically, the Supreme Court has got wider powers of discretion than the High Courts because
the High Courts have got no such powers as are with the Supreme Court under Article 136 and
Article 142 of the Constitution.
20

Since the nature of powers of the Supreme Court under Article 32 and that of High Courts under
Article 226 are substantially the same to the extent they relate to the violation of fundamental
rights; there is an implied element of equality also between the two to that extent. There is no bar
to approach the Supreme Court directly under Article 32, but if a petition has been filed under
Article 226, the Supreme Court cannot be approached if such petition is pending in the High
Court. Moreover, if the High Court has decided the matter on merits, the petitioner cannot move
the Supreme Court under Article 32 on the same cause of action. The only remedy in such cases
could be an SLP under Article 136 of the Constitution in the Supreme Court. But there could be
possibility of filing a writ petition under Article 32, in case the High Court dismisses the petition
on various discretionary grounds under Article 226. The powers of the High Court under Article
226 are discretionary and a petition can be dismissed, if there is any alternative remedy available
under law or if the writ petition involves a disputed question of facts, which could be better dealt
with by the civil court. It may also be dismissed on account of delay and laches or on some other
grounds, which in the eye of the court, is sufficient to dismiss the petition without going into the
merits of the case. The petition could be dismissed in limine also by the High Court under its
discretion. But the same discretion is not available with the Supreme Court under Article 32 as
far as the violation of fundamental rights are concerned. Therefore, once the Supreme Court is
moved on account of violation of fundamental rights, it cannot refuse to entertain the writ
petition and the same is likely to be disposed of on merits. Thus the principle of res-judicata
cannot be applied if the matter has not been decided by the High Court on merits. This issue was
discussed at length by the Supreme Court and Gajendra Gadkar J thus observed on the
principle of res-judicata, 33
"Now the rule of res-judicata as indicated in the code of civil procedure has no doubt some
technical aspects, for instance the rule of constructive res-judicata may be said to be technical;
but the basis on which the said rule rests is founded on considerations of public policy. It is the
interest of the public at large that a finally should attach to the binding decisions pronounced by
courts of competent jurisdiction and it is also in the public interest that individuals should not be
vexed twice over with the same kind of litigation. If these two principles form the foundation of
general rule of res-judicata they cannot be treated as irrelevant or inadmissible even in dealing
with fundamental rights in petitions filed under Article 32"
21

In Nilabati Behera V/S State of Orrisa20
the supreme court has laid down the principle on which compensation is to be awarded by the
court under article 32 and 226 to the victim of state action. the object to award compensation in
public law proceeding under article 32 and 226 is different from compensation in private tort law
proceedings. Award of compensation in proceeding under articles 32 and 226 is a remedy
available in public law based on strict liability for contravention of fundamental rights to which
the principle of sovereign immunity does not apply even though it may be available as a defence
in private law in an action based on tort. the purpose of public law is not only to civilize power
but also to assure the citizens that they live under a legal system which aims to protect their
interests and preserve their rights. Based on this importance of the principle of res-judicata, the
court established a clear relation of the powers of the Supreme Court under Article 32 and that of
the High Court under Article 226. It was finally held by the court in the same case,
"We hold that if a writ petition filed by a party under Article 226 is considered on the
merits as a contested matter and is dismissed, the decision thus pronounced would continue to
bind the parties unless it is otherwise modified. or reversed by appeal or other appropriate
proceedings permissible under the constitution. It would not be open to a party to ignore the said
judgment and move this court under Article 32 by an original petition made on the same facts
and for obtaining the same or similar orders or writs. If the petition filed in the High Court under
Article 226 is dismissed not on the merits but because of the laches of the party applying for the
writ or because it is held that the party had an alternative remedy available to it, then the
dismissal of the writ petition would not constitute a bar to a subsequent petition under Article 32
except in cases where and if the facts thus found by the High Court may themselves be relevant
even under Article 32. The above findings of the Supreme Court bring the writ jurisdiction of
both the courts very close to each other. In substance, they appear to be at par and the application
of mind by the High Court under Article 226 on a particular matter does not require to be
repeated by the Supreme Court in the same fashion on the same issue for the same relief.
20
1993 2 SCC 746
22

But this equality of powers binds both of the courts to keep a judicial decorum to avoid
mismanagement in the application of such powers. The parity of powers does not mean that the
High Court can entertain the matters inspite of the fact that the Supreme Court was already
seized of the matter. This would be against the norms of judicial propriety. Such matter came
before the Supreme Court in
Chavi Mehrotra v. Dir. Gen. Health Services21,
In this case, when an order passed by the Supreme Court was being implemented, a writ was
filed in the High Court and the same was entertained and some interim orders were passed by the
High Court which interfered with the directions issued by the Supreme Court in a petition under
Article 32. The Supreme Court took a serious view of it and observed, "It is a clear case where
the High Court ought not to have exercised jurisdiction under Article 226 where the matter was
clearly seized of by this court in petition under Article 32 .The learned Single Judge's perception
of justice of the matter might have been different and the abstinence that the observance of
judicial propriety, counsels might be unsatisfactory; but judicial discipline would require that in a
hierarchical system, it is imperative that such conflicting exercise of jurisdiction should strictly
be avoided. We restrain ourselves from saying anything more." Thus it is the judicial propriety,
which is an imperative force whereby such conflicting exercise of jurisdiction may be avoided.
Though there is no such legal bar but the court may refuse a writ on the availability of alternative
remedy. Similarly, if the petitioner is not being affected prejudicially, the court may refuse the
writ. Such writ would not be issued if the person concerned ceases to occupy the office.
However, a resignation after the notice would not stop the proceedings. Such writ would also be
not issued if it is futile in the cases where the alleged defect of appointment can be cured by way
of reappointment. It is a public interest writ to prevent the misuse of public office. RES
JUDICATA Res-Judicata is a rule of Public Policy that there should be finality to binding
decisions of courts of competent jurisdiction and that the parties to the litigation should not be
vexed with the same litigation again. the principle is embodied in section 11 of civil procedure
21
1995 Supp (3) SCC 434.
23

code. if a question has been once decided by the supreme court under article 32 the same
question cannot be re-opened again under article 226 of the constitution.
In Daryao v/s state of U.P22
it was held that where the matter had been Heard and decided by the High court under article 226
the writ under article 32 is barred by the rule of res judicata and could not be entertained. But
there is an Important exception to this rule of res judicata
In Gulam Sarvar v/s Union of India23the court held that the rule of res judicata is not applicable
in the writ of Habeas corpus and where the petitioner has been refused writ from the high court
he may file a petition for the same in the supreme court . The Parallel Provisions with a
Difference
Article 32 and Article 226 of the Constitution provide two separate but parallel provisions of writ
jurisdiction with the Supreme Court and High Courts respectively. Article 32 has been
incorporated as a fundamental right and it provides for the constitutional remedy against the
violation of fundamental rights. This remedy is limited to the violation of fundamental rights 36
only under Article 32. However, it is guaranteed under Article 32(2) and as per specific provision
of Article 32(4) it cannot be suspended otherwise, except, as provided under the Constitution.
Therefore, the right to move the Supreme is almost an absolute right and guaranteed under the
Constitution itself except in case of suspension of this right as' provided under the Constitution
(emergency provisions). Though to grant relief or not to grant is absolutely the discretion of the
Supreme Court but the apex court can be moved for violation of fundamental right as a matter of
right. But to this limited extent, it is a different matter with the High Court. The provision of
Article 226 is a constitutional provision, but it is not a fundamental right. There is no guarantee
22
AIR 1961 SC 1457
23
AIR 1967 SC 1335
24

attached to it unlike Article 32. The scope of Article 226 is wider than that of Article 32 because
the operation of Article 226 is not limited to violation of fundamental rights only, but it can be
operated for other purposes also. However, in entertaining the writs, the High Court enjoys wide
and open powers as a matter of discretion. It is a plenary power of the High Court without any
fatter from any provision of the Constitution. Since it is an extraordinary jurisdiction with the
High Court, it has no! to be resorted to in routine. The basic objective of this power is to ensure
justice wherever the miscarriage of justice is manifest. The High Court has to reach the remotest
comer of justice to eliminate injustice. For this purpose, the court is not bound by any procedural
fatter. But under Article 226 of the Constitution, the High Court is not bound to entertain every
writ petition filed with it. The court has absolute discretion to accept the writ petition for
adjudication or not. There could be many reasons or grounds on which the High Court can refuse
to entertain a writ petition. The facts and circumstances of each and every case will have to be
appreciated by the High Court before entertaining the writ petition for hearing. The preliminary
hearing of the writ would apprize the High Court of the basic background of the matter and if the
court does not think it appropriate to exercise writ jurisdiction, it is dismissed in limine without
going into the merits of the case. Thus to this extent, the powers of the High Court in writ
jurisdiction are different from that of the Supreme Court to the extent that the Supreme Court has
not got this discretion to refuse jurisdiction at that stage. The right to move the Supreme Court
under Article 32 is a fundamental right and the Supreme Court is bound to exercise the writ
jurisdiction under Article 32 of the Constitution of India whenever there is an infringement of
fundamental right and the Supreme Court is moved by way of a writ petition under this article.
The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the Constitution for
the violation of fundamental rights guaranteed under Part III of the Constitution. Any provision
in any Constitution for Fundamental Rights is meaningless unless there are adequate safeguards
to ensure enforcement of such provisions. Since the reality of such rights is tested only through
the judiciary, the safeguards assume even more importance. In addition, enforcement also
depends upon the degree of independence of the Judiciary and the availability of relevant
instruments with the executive authority. Indian Constitution, like most of Western Constitutions,
lays down certain provisions to ensure the enforcement of Fundamental Rights. These are as
under: (a) The Fundamental Rights provided in the Indian Constitution are guaranteed against
any executive and legislative actions. Any executive or legislative action, which infringes upon
25

the Fundamental Rights of any person or any group of persons, can be declared as void by the
Courts under Article 13 of the Constitution.
(b) In addition, the Judiciary has the power to issue the prerogative writs. These are the extraordinary remedies provided to the citizens to get their rights enforced against any authority in the
State. These writs are - Habeas corpus, Mandamus, Prohibition, Certiorari and Quo-warranto.
Both, High Courts as well as the Supreme Court may issue the writs. (c) The Fundamental Rights
provided to the citizens by the Constitution cannot be suspended by the State, except during the
period of emergency, as laid down in Article 359 of the Constitution. A Fundamental Right may
also be enforced by way of normal legal procedures including a declaratory suit or by way of
defence to legal proceedings.
However, Article 32 is referred to as the "Constitutional Remedy" for enforcement of
Fundamental Rights. This provision itself has been included in the Fundamental Rights and
hence it cannot be denied to any person. Dr. B.R.Ambedkar described Article 32 as the most
important one, without which the Constitution would be reduced to nullity. It is also referred to
as the heart and soul of the Constitution. By including Article 32 in the Fundamental Rights, the
Supreme Court has been made the protector and guarantor of these Rights. An application made
under Article 32 of the Constitution before the Supreme Court, cannot be refused on technical
grounds. In addition to the prescribed five types of writs, the Supreme Court may pass any other
appropriate order. Moreover, only the questions pertaining to the Fundamental Rights can be
determined in proceedings against Article 32. Under Article 32, the Supreme Court may issue a
Writ against any person or government within the territory of India. Where the infringement of a
Fundamental Right has been established, the Supreme Court cannot refuse relief on the ground
that the aggrieved person may have remedy before some other court or under the ordinary law.
The relief can also not be denied on the ground that the disputed facts have to be investigated or
some evidence has to be collected. Even if an aggrieved person has not asked for a particular
Writ, the Supreme Court, after considering the facts and circumstances, may grant the
appropriate Writ and may even modify it to suit the exigencies of the case. Normally, only the
aggrieved person is allowed to move the Court. But it has been held by the Supreme Court that in
social or public interest matters, any one may move the Court. A Public Interest Litigation can be
26

filed before the Supreme Court under Article 32 of the Constitution or before the High Court of a
State under Article 226 of the Constitution under their respective Writ Jurisdictions.
In P.N. Kumar V/S Municipal corporation of Delhi24
A two judges bench of the supreme court held that the citizens should not come to the court
directly for the enforcement of their fundamental right, but they should first seek remedy in the
high court and then if the parties are dissatisfied with the judgment of the high court, they can
approach the supreme court by way of appeal. In this case, the petitioners challenged the
imposition of various taxes on their hotel and prayed for quashing the same. Disposing the
petition the judges laid down following guidelines for the exercise of the rights under article 32
1. The scope of article 226 is wider than article 32. the parties first seek relief in the high court
and should come to the supreme court in appeal only
2. Hearing of the case at the level of high court is more convenient to the parties. it saves lot of
time.
3. the high court has its own tradition. they have eminent judges, whose capacity should be
utilized.
4. Every high court has good bar. There eminent lawyers with wide experience, handle different
kind of cases. They know history of every legislation in their state.
5. The Supreme Court has no time to decide cases pending before it for the last 10 to 15 years,
with the present strength of judges and will take more than 15 years to dispose of all pending
cases.
6. If the cases are filed in the high court the task of supreme court acting as an original court
which is time consuming can be avoided.
24
1987, 4 SCC 609
27
CHAPTER-III
WRITS OF MANDAMUS
Mandamus is a Latin word, which means "We Command". Mandamus is an order from a
superior court to a lower court or tribunal or public authority to perform an act, which falls
within its duty.
DEFINITION OF MANDAMUS
Mandamus according to Black's law dictionary, Ninth Edition
"A writ issued by a court to compel performance of a particular act by lower court or a
governmental officer or body, to correct a prior action or failure to act."
Mandamus according to Wharton's Law Lexicon, 15th Edition, 2009
28

"A high prerogative writ of a most extensive remedial nature. In form it is a command issuing in
the King's name from the King's Bench Division of the High Court only, and addressed to any
person, corporation, or inferior court of judicature requiring them to do something therein
specified, which appertains to their office, and which the court holds to be consonant to right and
justice. It is used principally for public purposes, and to enforce performance of public duties. It
enforces, however, some private rights when they are withheld by public officers."
The order of mandamus is of a most extensive remedial nature, and is in form, a command
issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal,
requiring him or them to do some particular thing therein specified which appertains to his or
their office and is in nature of a public duty. Mandamus is not a writ of right, it is not
consequently granted of course, but only at the discretion of the court to whom the application
for it is made; and this discretion is not exercised in favour of the applicant, unless some just and
useful purpose may be answered by the writ. A writ of mandamus or remedy is pre -eminently a
public law remedy and is not generally available against private wrongs. It is used for
enforcement of various rights of the public or to compel the public statutory authorities to
discharge their duties and to act within the bounds. It may be used to do justice when there is
wrongful exercise of power or a refusal to perform duties
It is issued to secure the performance of public duties and to enforce private rights withheld by
the public authorities. Simply, it is a writ issued to a public official to do a thing which is a part
of his official duty, but, which, he has failed to do, so far. This writ cannot be claimed as a matter
of right. It is the discretionary power of a court to issue such writs.
The primary purpose of this writ is to make the Government machinery work properly. An order
of mandamus is a command directed to any person, corporation or an inferior tribunal, requiring
them to do some particular thing which pertains to their/his office and which is in the nature of a
public duty. The public servants are responsible to the public for the lawfulness of their public
duties and their actions under it. If a public authority fails to do what is required under law or
does beyond what was to be done, a writ of mandamus may be issued to make him do what was
required under law. Mandamus may also be issued to a tribunal to compel it to exercise the
jurisdiction vested in it, which it has refused to exercise. Mandamus may also be issued where
29

there is a specific legal right, without specific remedy for enforcement of such right and
unreasonableness has no place. The Supreme Court in various decisions has held that the
doctrine of legitimate expectation is akin to natural justice, reasonableness and promissory
estoppel. It primarily conceives a situation where justice and fair play get a place of pride and
perfection in the delivery of justice. A writ of mandamus is an order issued by a superior court to
a lower court or other entity commanding the lower court, corporation or public authority to
perform or not perform specific acts. Rules applying to a mandamus include: The requested act
must be used as a judicial remedy. The act must conform to statutorily-authorized provisions.
The write must be judicially enforceable and protect a legal right. Three types of mandamus are
utilized, depending upon the legal circumstances.
The alternative mandamus demands a defendant to appear before court, perform an act or show
cause for not having done so.
The peremptory mandamus is used when a defendant fails to comply with an alternative
mandamus and which is an absolute command for performance.
Third, the continuing mandamus requests an officer or authority to perform its activities
expeditiously for an indefinite period of time in order to prevent a miscarriage of justice.
MANDAMUS IN INDIAN LAW PRIOR TO THE CONSTITUTION
Mandamus was introduced in India by the Letters Patent creating the Supreme Court in Calcutta
in 1773. The Supreme Courts in the Presidency towns were empowered to issue the writ. In
1877, the Specific Relief Act substituted an order in the nature of mandamus in the place of the
writ of mandamus for the purpose of "requiring any specific act to be done or forborne within the
local limits of its ordinary civil jurisdiction by any person holding a public office.25
Under the Specific Relief Act, 1963, which replaced the earlier Act, this provision has been
omitted. This omission must have been because such a provision under the Specific Relief Act
became redundant since the Constitution of India contains a similar and more efficacious
25
Section 45 of the Specific Relief Act, 1877.
30

provision for the enforcement of public duties. The Constitution empowered all High Courts to
issue directions, orders or writs including writs in the nature of mandamus for the enforcement of
any of the rights conferred by Part III and for any other purpose. 26 The Supreme Court can also
issue mandamus for the enforcement of fundamental rights.27
INTERPRETATION OF PUBLIC RIGHT AND MANDAMUS
Mandamus lies against authorities whose duty is to perform certain acts and they have failed to
do so. Under following circumstances mandamus can be issued :
(i)
The applicant must have a legal right to the performance of a legal duty 28. It will not
issue where to do or not to do an act is left to the discretion of the authority 29. It was
refused where the legal duty arose from an agreement which was in dispute. The duty
to be enforced by a writ
mandamus could arise by a provision of the Constitution30 or of a statute31 or of the common

law32
26
Article 226
27
Article 32
28
Dr. Rai Shivendra Bahadur v, Governing Body of the Nalunda College, A.I.R. 1962
S.C. 1210.
29
Controller of Monghyr v. Keshav Prasad, A.I.R. 1962 S.C. 1694; State of U.P. v.
Manbodhanlal, A.I.R. 1957 S.C. 912: (1958) S.C.R. 533. T.G. Gaokar v. R.N. Shukla,
A.I.R. 1968 S.C. 1050; Rajalakshmiah v. State of Mysore, A.I.R. 1967 S.C. 993
31

(ii) The legal duty must be of a public nature. In The Praga Tools Corporation v. C.V. Imanual, 33
and Sohanlal v. Union of India,34 the Supreme Court stated that mandamus might under certain
circumstances lie against a private individual if it is established that he has colluded with a public
authority.
It will not issue against a private individual to enforce a private right such as a
contract35.Even though mandamus does not lie to enforce a contract inter partes, it will lie where
the petitioner's contractual right with a third party is interfered with by the State 36. Mandamus
will not issue to enforce departmental manuals or instructions not having any statutory force
30
Carlsbad Mineral Water Mfg. Co. v. H.M. Jagtiani, A.I.R. 1952 Cal. 315.
31
Chintaman Rao v. Slate of M.P., A.l.R. 1951 S.C. 118:(1950) S.C.R. 759; Rashid
Ahmed v. Municipal Board, A.l.R. 1950 S.C. 163: (1950) S.C.R. 566
32
Juggilal Kamalapat v. The Collector of Bombay, A.l.R. 1946 Bom. 280.
33
A.l.R. 1969 S.C. 1306

34
A.I.R. 1957 S.C. 529: (1957) S.C.R. 738

35
Lekhraj v. Deputy Custodian. Bombay, A.l.R. 1966 S.C. 334; Shantabai

36
Calcutta Gas Co. v. State of W.B., A.l.R. 1962 S.C. 1044, 1047
32

which do not give rise to any legal right in favour of the petitioner as in the cases of Raman &
Ramanv. State of Madras37, State of Assam v. Ajit Kumar,38
However if the authority were under law obliged to exercise discretion, mandamus would
lie to exercise it in one way or the other. Mandamus can be issued to compel an income-tax
officer to carry out the instructions issued by income-tax appellate tribunal exercising its
appellate power39. Again it can be issued to a municipality to discharge its statutory duty40.
There are however exceptions to this rule. Where there is no statutory provision, executive
instructions fill in the gap and are capable of conferring rights on the citizen imposing
obligations on the authorities. In appropriate cases the courts may even compel the performance
of such a duty41. Mandamus is not available where the order upon which the alleged right of the
petitioner is founded is itself ultra vires 42. Similarly it was held that the grant of dearness
37
A.l.R. 1959 S.C. 694;

38
A.l.R. 1965 S.C. 1196.

39
Bhopal Sugar Industries v. I.T.O. AIR 1961 SC 182
40
Rampal v. State AIR 1981 Raj. 121
41
Jiwat Bai & Sons v. G.C. Batra. A.l.R. 1976 Delhi 310.
42
Prakaslt v. Principal, A.l.R. 1965 M.P. 217, 218
33

allowance at a particular rate is a matter of grace and not a matter of right and hence mandamus
cannot issue to compel the Government to pay dearness allowance at a particular rate. 43 Article
320 (3) of the Constitution which provides that before a government servant is dismissed, the
Union Public Service Commission should be consulted, does not confer any right on a public
servant and hence failure to consult the Public Service Commission does not entitle the public
servant to get mandamus for compelling the government to consult the Commission44.
Where provisions are merely directory, non-compliance with them does not render an act invalid
and hence no mandamus issues.
(iii) The right sought to be enforced must be subsisting on the date of the petition. If the interest
of the petitioner has been lawfully terminated before that date, he is not entitled to the writ45.
(iv) As a general rule, mandamus is not issued in anticipation of injury. There are exceptions to
this rule. Anybody who is likely to be affected by the order of a public officer is entitled to bring
an application for mandamus if the officer acts in contravention of his statutory duty 46. Thus an
intending bidder at an auction is entitled to apply if the authority holding the auction acts
contrary to the statute under which the auction is held or fails to perform his statutory duties in
connection with the auction. A person against whom an illegal or unconstitutional order is made
is entitled to apply to the court for redress even before such order is actually enforced against
43
State of M P. v. G.C. Mandamir, A.l.R. 1954 S.C- 493.
44
State of U.P. v. Manbodhantal, A.I.R. 1957 S.C. 912; (I958) S.C.R. 533
45
Kalyan Singh v. State of U.P., A.I.R. 1962 S.C. IIS3
46
Guruswami v. State of Mysore, A.I.R. 1954 S.C. 592
34

him or even before something to his detriment is done in pursuance of the order. For, the issue of
such order constitutes an immediate encroachment on his rights and he can refuse to comply with
it only at his peril47.
WHEN IT WILL LIE

Thus the writ or order in the nature of mandamus would be issued when there is a failure to
perform a mandatory duty. but even in the cases of alleged breaches of mandatory duty the party
must show that he has made a distinct demand to enforce that duty and demand was met with
refusal.
1. the writ of mandamus can only be granted when there is in the applicant a right to compel the
performance of some duty cast upon the authority. the duty sought to be enforced must be a
public duty and not a private duty.
2. Thus writ of mandamus can be issued to public authority to restrain it from acting under a law
which has been declared unconstitutional.
3. the writ of mandamus can be granted only in cases where there is a statutory duty imposed
upon the officer concerned, and there is a failure on the part of that officer to discharge the
statutory obligation.
WHEN IT WILL NOT LIE
The writ of mandamus cannot be granted in case of following circumstances
1. when the duty is merely discretionary
2. against a private individual or any private organization because they are not entrusted with
public duty.
47
Commr. of Police, Bombayv. Gordhandas Bhanji, A.I.R. 1952 S.C. 16: (1952) S.C.R.
135, 148; Bengal Immunity Co. Ltd. vd. State of Bihar, A.I.R. 1955 S.C. 661: (1955) 2
S.C.R. 603.
35

3. A writ of mandamus cannot be granted to enforce an obligation arising out of contract.
CHAPTER-III
WRITS OF CERTIORARI
Literally, Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme
Court to some inferior court or tribunal to transfer the matter to it or to some other superior
authority for proper consideration. The Writ of Certiorari can be issued by the Supreme Court or
any High Court for quashing the order already passed by an inferior court. In other words, while
the prohibition is available at the earlier stage, Certiorari is available on similar grounds at a later
stage. It can also be said that the Writ of prohibition is available during the tendency of
proceedings before a sub-ordinate court, Certiorari can be resorted to only after the order or
decision has been announced.
In Province of Bombay v/s Khushaldas48
In this case it was held that whenever any body of person having legal authority to determine
questions affecting the rights of subjects and having the duty to act judicially acts in excess of
their legal authority, a writ of certiorari will lies. it does not lie to remove merely ministerial act
or to remove or cancel executive administrative acts. Writ lies on Judicial bodies one of the
fundamental principles in regard to the issuing of a writ of certiorari is that the writ can be
48
AIR 1950 SC 22
36

availed of only to remove or to adjudicate upon the validity of judicial acts. the expression
judicial acts includes the exercise of quasi-judicial functions by administrative bodies or
authorities or persons obliged to exercise such functions and is used in contrast which are purely
ministerial acts. the supreme court has laid down two propositions for ascertaining whether an
authority is to act judicially-1. if a statute empowers a authority to decide disputes arising out of claim made by one party
under the statute, which claim is opposed by another party, then prima facie and in the absence of
anything in the statute to the contrary is the duty of the authority to act judicially and the decision
of authority is a quasi judicial act.
2. if a statutory authority has power to do any act which will prejudicially affect the subject then
although there are not two parties apart from the authority and the final determination of
authority will be a quasi-judicial act provided that the authority is required by the statue to act
judicially.
GROUNDS ON WHICH WRIT CAN BE ISSUED.
The writ of certiorari can be issued to judicial and quasi-judicial body on the following grounds
1. where there is want or excess of jurisdiction
The writ of certiorari is issued to a body performing judicial or quasi judicial function for
correcting errors of the jurisdiction, as when an inferior court or tribunal acts without jurisdiction
or in excess of it or fails to exercise it. the want of jurisdiction may arise from the nature of
subject matter so that the inferior court has no authority to enter on the inquiry or upon some part
of it. want of jurisdiction may also arise from absence of some preliminary proceeding or upon
the existence of some particular facts which are necessary to the exercise of the courts power and
the court wrongly assume that the particular condition exists.
2. For correcting error of law apparent on the face of record
The writ is also issued for correcting an error of law apparent on the face of record. it cannot be
issued to correct an error of fact. what is an error of law apparent on the face of record is to be
decided by the courts on the facts of each case.
37

In Hari Vishnu v/s Ahmed Ishaque49
the supreme court held that no error could be said to be error on the face of record if it was not
self-evident and it required an examination and argument to establish it. an arror of law which is
apparent on the face of the record can be corrected by a writ of certiorari but not an error of fact,
howsoever grave it may appear to be. the reason for rule is that the court issuing a writ of
certiorari acts in a supervisory jurisdiction and not appellate jurisdiction. accordingly it cannot
substitute its own decision on the merits of the case or give direction to be complied with by the
inferior court or tribunal.
3. Disregard of principle of natural justice
A writ of certiorari also lies against a court or tribunal when it acts in violation of the principles
of natural justice. two principles of natural justice are generally accepted
1. the court or tribunal should be free from bias and interestthe principles that the adjudicator
should not have an interest and bias in the case that no man shall be a judge in his own case and
justice should not be done but manifestly and undoubtedly seen to be done.
2. Audi Alteram Partem ie, the parties must be heard before the decision is given.
when it will not lie the writ of certiorari cannot be issued against a private body, co-operative
electricity supply society limited incorporated under the co-operative societies act, is a private
body and not a public body discharging public duties or functions and the writ petition is
therefore not maintainable against such a private society. "The second essential feature of a writ
of 'certiorari' is that the control which is exercised through it over judicial or quasi-judicial
tribunals or bodies is not in an appellate but supervisory capacity. In granting a writ of
'certiorari', the superior court does not exercise the powers of an appellate tribunal. It does not
review or re-weigh the evidence upon which the determination of the inferior tribunal purports to
be based. It demolishes the order which it considers to be without jurisdiction or palpably
erroneous but does not substitute its own views for those of the inferior tribunal." It is a writ
49
AIR 1955 SC 223 48

38

(order) of a higher court to a lower court to send all the documents in a case to it so the higher
court can review the lower courts decision. Appellate review of a case that is granted by the
issuance of certiorari is sometimes called an appeal, although such review is at the discretion of
the appellate court. A party, the petitioner, files a petition for certiorari with the appellate court
after a judgment has been rendered against him in the inferior court.
However, unlike a writ of prohibition, superior courts issue writs of certiorari to review
decisions which inferior courts have already made. The writ of prohibition is the counterpart of
the writ to certiorari which too is issued against the action of an inferior court. The difference
between the two was explained by Justice Venkatarama Ayyar of the Supreme Court in the
following terms: When an inferior court takes up for hearing a matter over which it has no
jurisdiction, the person against whom the proceedings are taken can move the superior court for a
writ of prohibition and on that an order will issue forbidding the inferior court from continuing
the proceedings. On the other hand, if the court hears the cause or matter and gives a decision,
the party aggrieved would have to move the superior court for a writ of certiorari and on that an
order will be made quashing the decision on the ground of want of jurisdiction.
Difference between a writ of certiorari under Article 226 and supervisory jurisdiction under
Article 227.
The difference between Articles 226 and 227 of the Constitution was well brought out
in Umaji Keshao Meshram and Ors. Vs. Smt. Radhikabai and Anr 50. Proceedings under Article
226 are in exercise of the original jurisdiction of the High Court while proceedings under Article
227 of the Constitution are not original but only supervisory. Article 227 substantially reproduces
the provisions of Section 107 of the Government of India Act, 1915 excepting that the power of
superintendence has been extended by this Article to tribunals as well. Though the power is akin
to that of an ordinary court of appeal, yet the power under Article 227 is intended to be used
sparingly and only in appropriate cases for the purpose of keeping the subordinate courts and
tribunals within the bounds of their authority and not for correcting mere errors. The power may
be exercised in cases occasioning grave injustice or failure of justice such as when (i) the court
50
., (1986) Supp. SCC 401

39

or tribunal has assumed a jurisdiction which it does not have, (ii) has failed to exercise a
jurisdiction which it does have, such failure occasioning a failure of justice, and (iii) the
jurisdiction though available is being exercised in a manner which tantamounts to overstepping
the limits of jurisdiction.
Upon a review of decided cases and a survey of the occasions wherein the High Courts have
exercised jurisdiction to command a writ of certiorari or to exercise supervisory jurisdiction
under Article 227 in the given facts and circumstances in a variety of cases, it seems that the
distinction between the two jurisdictions stands almost obliterated in practice. Probably, this is
the reason why it has become customary with the lawyers labeling their petitions as one common
under Articles 226 and 227 of the Constitution, though such practice has been deprecated in
some judicial pronouncement. Without entering into niceties and technicality of the subject, we
venture to state the broad general difference between the two jurisdictions. Firstly, the writ of
certiorari is an exercise of its original jurisdiction by the High Court; exercise of supervisory
jurisdiction is not an original jurisdiction and in this sense it is akin to appellate revisional or
corrective jurisdiction. Secondly, in a writ of certiorari, the record of the proceedings having
been certified and sent up by the inferior court or tribunal to the High Court, the High Court if
inclined to exercise its jurisdiction, may simply annul or quash the proceedings and then do no
more. In exercise of supervisory jurisdiction the High Court may not only quash or set aside the
impugned proceedings, judgment or order but it may also make such directions as the facts and
circumstances of the case may warrant, may be by way of guiding the inferior court or tribunal as
to the manner in which it would now proceed further or afresh as commended to or guided by the
High Court. In appropriate cases the High Court, while exercising supervisory jurisdiction, may
substitute such a decision of its own in place of the impugned decision, as the inferior court or
tribunal should have made. Lastly, the jurisdiction under Article 226 of the Constitution is
capable of being exercised on a prayer made by or on behalf of the party aggrieved; the
supervisory jurisdiction is capable of being exercised suo motu as well.
In order to safeguard against a mere appellate or revisional jurisdiction being exercised in
the garb of exercise of supervisory jurisdiction under Article 227 of the Constitution, the courts
have devised self-imposed rules of discipline on their power. Supervisory jurisdiction may be
refused to be exercised when an alternative efficacious remedy by way of appeal or revision is
40

available to the person aggrieved. The High Court may have regard to legislative policy
formulated on experience and expressed by enactments where the Legislature in exercise of its
wisdom has deliberately chosen certain orders and proceedings to be kept away from exercise of
appellate and revisional jurisdiction in the hope of accelerating the conclusion of the proceedings
and avoiding delay and procrastination which is occasioned by subjecting every order at every
stage of proceedings to judicial review by way of appeal or revision. So long as an error is
capable of being corrected by a superior court in exercise of appellate or revisional jurisdiction
though available to be exercised only at the conclusion of the proceedings, it would be sound
exercise of discretion on the part of the High Court to refuse to exercise power of
superintendence during the pendency of the proceedings. However, there may be cases where but
for invoking the supervisory jurisdiction, the jurisdictional error committed by the inferior court
or tribunal would be incapable of being remedied once the proceedings have concluded.
In Chandrasekhar Singh & Ors. Vs. Siva Ram Singh & Ors 51, the scope of jurisdiction under
Article 227 of the Constitution came up for the consideration of this Court in the context of
Sections 435 and 439 of the Criminal Procedure Code which prohibits a second revision to the
High Court against decision in first revision rendered by the Sessions Judge. On a review of
earlier decisions, the three-Judges Bench summed up the position of law as under :(i) that the powers conferred on the High Court under Article 227 of the Constitution cannot, in
any way, be curtailed by the provisions of the Code of Criminal procedure;
(ii) the scope of interference by the High Court under Article 227 is restricted. The power of
superintendence conferred by Article 227 is to be exercised sparingly and only in appropriate
cases in order to keep the subordinate Courts within the bounds of their authority and not for
correcting mere errors;
(iii) that the power of judicial interference under Article 227 of the Constitution is not greater
than the power under Article 226 of the Constitution;
51
., (1979) 3 SCC 118

41

(iv) that the power of superintendence under Article 227 of the Constitution cannot be invoked to
correct an error of fact which only a superior Court can do in exercise of its statutory power as
the Court of Appeal; the High Court cannot, in exercise of its jurisdiction under Article 227,
convert itself into a Court of Appeal.
Later, a two-judge Bench of this Court in Baby Vs. Travancore Devaswom Board & Ors52., ,
clarified that in spite of the revisional jurisdiction being not available to the High Court, it still
had powers under Article 227 of the Constitution of India to quash the orders passed by the
Tribunals if the findings of fact had been arrived at by non-consideration of the relevant and
material documents, the consideration of which could have led to an opposite conclusion. This
power of the High Court under the Constitution of India is always in addition to the revisional
jurisdiction conferred on it.
CONCLUSION & SUGGESTION

Marbury vs Madison
Chief Justice John Marshall:
"It is emphatically the province and duty of the Judiciary department to say what the law is.
Those who apply the rule to particular cases, must necessity expound and interpret that rule. If
two laws conflict with each other, the courts must decide on the operation of each."
McCulloch vs Maryland
Chief Justice John Marshall:
"The constitution and the laws made in pursuance thereof are supreme . . .they control the
constitution and laws of the respective states, and cannot be controlled by them."
As per about stated statement CJ John Marsha have given huge value to judicial review and The
constitution of India has given a wide powers under article 32 and 226 to the public in general
52
(1998) 8 SCC 310

42

for the enforcement of rights. Under the Indian legal system, jurisdiction to issue 'prerogative
writs' is given to the Supreme Court, and to the High Courts of Judicature of all Indian states.
Parts of the law relating to writs are set forth in the Constitution of India. The Supreme Court,
the highest in the country, may issue writs under Article 32 of the Constitution for enforcement
of Fundamental Rights and under Articles 139 for enforcement of rights other than Fundamental
Rights, while High Courts, the superior courts of the States, may issue writs under Articles 226.
The Indian judiciary has dispensed with the traditional doctrine of locus standi, so that if a
detained person is not in a position to file a petition, it can be moved on his behalf by any other
person. The scope of habeas relief has expanded in recent times by actions of the Indian
judiciary. "The language of Article 226 does not admit of any limitation on the powers of the
High Court for exercise of jurisdiction, hereunder, though by various decisions of the Apex Court
with varying and divergent views it has been held that jurisdiction under Article 226 can be
exercised only when body or authority, decision of which is complained was exercising its
powers in discharge or public duty and that writ is a public law remedy.
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WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

AM OF THE VIEW THAT IF THERE IS ONE FEATURE OF OUR

MORE THAN ANY OTHER IS BASIC AND FUNDAMENTAL TO THE MAINTENANCE OF

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

OBJECTIVE AND AIMS :-

1) To trace the source and development of writs in India.

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

DE SMITH'S JUDICIAL REVIEW, 7TH EDITION, SWEET & MAXWELL PUBLICATION, A

PROF. JAIN, M.P.INDIAN CONSTITUTIONAL LAW, FIFTH EDITION, LEXIS NEXUS

SINGH, MAHENDRA P.,V. N. SHUKLAS, CONSTITUTION OF INDIA, ELEVENTH

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

JUSTICE B P BANERJEE, WRIT REMEDIES, 6TH EDITION ,LEXIS NEXIS,2013

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

NATURE, SOURCES & TYPE OF STUDY:-

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

5 Baker, J. H. An Introduction to English Legal History. Butterworths 1990. ISBN 0-406-53101-3

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

7 5 U.S. (1 Cranch) 137, 2 L. Ed. 60 (1803),

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

9(AIR 1970 SC 150)

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

11 1965 AIR 491,

12 1980 AIR 1983,

13 1976 AIR 1207, 1976 SCR 172

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

16 1961 AIR 1457, 1962 SCR (1) 574

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

Powers of the High Courts

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

mandamus could arise by a provision of the Constitution30 or of a statute31 or of the common

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

A.l.R. 1969 S.C. 1306

A.I.R. 1957 S.C. 529: (1957) S.C.R. 738

Lekhraj v. Deputy Custodian. Bombay, A.l.R. 1966 S.C. 334; Shantabai

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

A.l.R. 1959 S.C. 694;

A.l.R. 1965 S.C. 1196.

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WHEN IT WILL LIE

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

WRIT OF MANDAMUS AND WRIT OF CERTIORARI: A COMPARATIVE STUDY

AIR 1955 SC 223 48