Constitutional Writs And Curative Petition

This article was written by Bhavana chandak, a student of Rajiv Gandhi National University of Law.

Blackstone defines writ as a mandatory letter from the king in parliament, sealed with his great seal and directed to the sheriff of the county wherein the injury is committed or supposed so to be, requiring him to command the wrongdoer or party accused, either to do justice to the complainant or else to appear in court and answer the accusation against him.

Like the other laws which independent India inherited from England, even the law of writs was inherited from there. Previously there were 10 kinds of writs available at the kings’ disposal but with time they were reduced to only a mere 5. These writs are called prerogative writs because they are issued at the prerogative of the king or the ruler. These writs act as remedies available to the common man when their fundamental rights envisaged in Part III of the Constitution of India are violated. Writs can only be issued by the Supreme Court and High Courts. The ambit of the latter court is wider because they can even issue writs if a legal right is violated.

Every court has multiple jurisdictions. The original jurisdiction consists of cases which can be filed fresh in that court of law. The appellate jurisdiction covers cases which are filed in a higher court appealing from a lower court if either of the pates is not satisfied with the decision. Advisory jurisdiction means that the government can seek advice of the learned court on point so law if it feels necessary. Finally comes the writ jurisdiction wherein the court examines the principles of law and enforce the law which already exists and is available to them rather than creating a law or creating a right.

Dr.Ambedkar, the father of the Constitution said, “If I was asked to name the particular Article in this Constitution as the most important without which this Constitution would be a nullity, I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it …….. This in my judgment is one of the greatest safeguards that can be provided for the safety and security of the individual.”[1]

The Supreme Court issues a writ under Article 32 of the Constitution while the high Court has the similar power in Article 226 of the Constitution. The Constitution provides for five kinds of writs namely Habeas Corpus, Quo Warranto, Mandamus, Certiorari, and Prohibition.

Writ is an order of the court issued to a person or authority to do some act or forbear from doing some act. Writs are expeditious and are an effective judicial tool to hold the government and its functionaries to the performance of their official duties in the right spirit.[2]A writ in common parlance can be termed as an order. The law of writs is based on the principles of natural justice, equity and good conscience. Writs are public remedies hence it is naturally expected that decisions regarding writ must appeal to a man of ordinary prudence.

Writs

1. Habeas Corpus

Habeas Corpus means that you(shall)  have the body . It is a writ issued to secure the liberty of the subject from the wrongful deprivation or unlawful detention of the subject against his will.[3] The purpose of issuing it is to seek relief from the unlawful detention of him or herself, or of another person. It is the only writ where he locus standi is relaxed that means any person other than the aggrieved can also file the case. The Supreme Court had held that the Court may decide the question of the legality of detention even without the person detained be presented in front of him.[4] Res judicata is also not applicable. This writ ensures that the administration cannot harm the subject from unfair practice. It is the most effective way to check if the arrest is arbitrary. Habeas Corpus is the only writ which can be issued against an individual. It is a writ which cannot be suspended even during emergency.[5]  The burden of proof in such cases lies on the authority to prove that the detention was not arbitrary. The nature of the proceedings to be civil or criminal is decided by the nature of the case. This writ is not available in cases of preventive detention.

2. Quo Warranto

Quo Warranto is a writ which literally translates to mean what is your authority. It is a writ available only against people holding a public office. They person holding public office should not only be in charge of it but also be responsible for the decisions which are taken. It should be a office of public nature which is created by the Constitution itself or any statute. When it is issued it results in removal of the person from the concerned office. This writ does not lie when the office in question is a private one. This was further upheald in Jamalpur Arya Samaj Sabha v. Dr. D. Rama,[6] the Court  refused to issue this writ against the members of the Working Committee of Bihar Raj Arya Samaj because it was a private religious body.

The Uttaranchal High Court in one of the landmark cases discussed the nature and scope of the writ, it held that, Quo warranto is a discretionary relief and is not granted as a matter of course. Quo warranto is not a matter of right. The Court has discretion to grant or refuse it according to the facts and circumstances of the case. If it is vexatious and has been filed for vindication of personal prejudice, writ can be refused. If the applicant had an alternative remedy but it was not availed of or if the applicant is guilty of delay or if the application is barred by res judicata, writ may be refused.[7]

3. Mandamus

A writ of mandamus or mandamus means we command in Latin. It is issued only if the public duties are not performed as per its obligations. It is not enforceable if the if there is non-compliance of administrative or contractual obligations. Mandamus cannot be issued to enforce any instruction not having any statutory force which does not create any legal right.[8] It is a generally accepted norm that mandamus is not issued if there is just an anticipation of injury. The exception made by the Court to this rule is that anybody who is possible to be affected by the order of a public officer is at liberty to bring an application for this writ if the officer acts in infringement of his statutory duty.[9]

 In Apex Court[10] widened the scope that mandamus upholding that in certain circumstances mandamus can lie against a private individual if it is established that she/he has collaborated with any public authority.

4. Certiorari

A writ of Certiorari is a command to the lower Court or quasi judicial authority to transfer the case pending before the inferior court to be dealt with the superior court because it is working outside its jurisdiction. It is a means of keeping a check on the working of the lower courts so that there is no error of law in the judgement being passed. It also checks the procedural aspect of the matter and if the order is in violation of the principles of natural justice they the Superior Court has the authority to quash it and pass an order afresh. It is passed against the body or authority that is to act judicially.

An error in decision or determination itself may also be amenable to a writ of certiorari but it must be a manifest error apparent on the face of the proceeding e. g., when it is based on clear ignorance or disregard of the provision of law.[11] This was the first time the Apex Court issued a writ of certiorari on the ground that the decision of the election tribunal had in it an error in law which was visible prima facie.

5. Prohibition

A writ of prohibition is issued by a superior court to an inferior one when the latter exceeds its jurisdiction to stop. The Supreme Court differentiated between Writ of Certiorari and Prohibition, when an inferior Court takes up for hearing a matter over which it has no jurisdiction, the aggrieved who is affected by it, can move the Apex Court of the land for a writ of prohibition. While if a court has already dealt with a case and passed a decision then the aggrieved party can move to the higher court for quashing the same.[12]

The jurisdiction for grant of a writ of prohibition is primarily supervisory and the object of that writ is to restrain Courts or inferior tribunals from exercising a jurisdiction which they do not possess at all or else to prevent them from exceeding the limits of their jurisdiction. In other words, the object is to confine Courts or Tribunals of inferior or limited jurisdiction within their bounds.[13]

The Supreme Court had in a landmark judgement has defined the scope of Writs in India, where a legal wrong or a legal injury is caused to a person … writ in the High Court under Art. 226 and in case of breach of any fundamental right of such person or class of persons, in this Court under Art. 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons.[14]

Curative Petition

A curative petition is a review petition. It is the last remedy available to the aggrieved. The term Curative Petition was coined by the Supreme Court in the case of Rupa Ashok Hurra vs. Ashok Hurra and Anr.[15] This remedy exists in order to cure gross miscarriage of justice. The Court then laid out specific rules which need to be kept in mind while filing a curative petition. In such a petition the applicant is supposed to stick to the grounds of the review petition. No new grounds can be mentioned herein. This has to be certified by a senior advocate and then circulated amongst the three senior most judges of the Apex court. And if possible a copy should also be circulated among the judges who passed the previous judgement if they are available although it is not mandatory. In the case of Yakub Menon, one of the judges who passed the previous judgement was not given a copy and he raised an objection, but later it was highlighted that it is not mandatory to do so. When the majority of judges agree on the fact that the matter needs a hearing then it is admitted in the court. There is no expressed time limit for filing of such a petition. The court also has the discretion to impose exemplary costs on the petitioner if there is lack of merit.

This concept is still developing in the Indian scenario. Only two curative petitions have been admitted in the Supreme Court more than a decade of coining the concept. The first one was the Yakub Menon case and the second was the Naaz Foundation case.

[1] Dr.B.R.Ambedkar,” Constitutional Assembly Debates, Constitutional Assembly Of India, Dec 1948, p953.

[2] V.N.Shukla, Legal remedies,1991, p 6.

[3] G.C .Venkata Subb Rso Prerogative Writs and Fundamental Rights (1953) p 53.

[4] Kanu Sanyal v. District Magistrate, Darjeeling AIR 1973 SC 2684.

[5] ADM Jabalpur v. Shivakant Shukla AIR 1976 SC 1207.

[6] Jamalpur Arya Samaj Sabha v. Dr. D. Rama, AIR 1954 Pat 297.

[7] Rural Litigation And Entitlement Kendra v. State Of Uttaranchal And Ors. AIR 2006 Utr 49.

[8] M/S Raman & Raman Ltd. v. State of Madras and Ors., A.l.R. 1959 S.C. 694.

[9] Guruswami v. State of Mysore, A.I.R. 1954 S.C. 592.

[10] Praga Tools Corporation v. C.V. Imanual, A.l.R. 1969 S.C. 1306 and Sohanlal v. Union of India, A.I.R. 1957 S.C. 529.

[11] T. C. Basappa v. T. Nagappa AIR 1954 SC 440.

[12] Hari Vishnu Kamath vs. Ahmad Ishaque, AIR 1955 S.C. 233.

[13] Tamil Nadu Tobacco Co. Ltd. vs Union Of India, 1993 (41) ECC 130.

[14] S. P. Gupta v. Union of India AIR 1982 SC 149.

[15] Rupa Ashok Hurra vs. Ashok Hurra and Anr., (2002) 4 SCC 388.