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Writ jurisdiction and Private Sector
Abstract
This article delves into the writ jurisdiction, a vital component of the Indian Constitution's Right to Constitutional Remedies,
as described by B.R. Ambedkar. The discussion spans the origin of writs, tracing their development in the United Kingdom
and their incorporation into the Indian legal framework. Highlighting five types of writs—Habeas Corpus, Mandamus,
Prohibition, Quo Warranto, and Certiorari—the article elucidates their applications, emphasizing their role in protecting
individual rights and ensuring justice. The evolution of the judicial review principle, marked by key cases like "Provincial
Picture House Ltd vs Wednesbury Corporation" and "Council of Civil Service Union v Minister for the Civil Services," is
explored, shedding light on the expansion of grounds for administrative action control. Detailed explanations of each writ,
including Habeas Corpus for securing release from unlawful detention, Quo Warranto for challenging public office
appointments, Mandamus for enforcing public duties, and Certiorari and Prohibition for reviewing administrative decisions,
enrich the understanding of their legal implications. The article also discusses the jurisdictional aspects, distinguishing
between the Supreme Court's authority under Article 32 and the High Court's powers under Article 226. The nature of writ
jurisdiction, its territorial dimensions, and the supervisory role of High Courts are clarified, emphasizing their importance in
upholding citizens' legal rights in the modern administrative age.
This article explores the pivotal role of India's private sector in economic growth and innovation. Tracing its development
from post-independence to liberalization in the 1990s, it highlights key sectors like IT, telecommunications, and healthcare.
Despite challenges such as regulatory complexities, the private sector's adaptability and technological prowess drive
economic success. The article emphasizes the government's initiatives like "Make in India" and anticipates the private
sector's continued growth, leveraging demographic advantages and attracting foreign investment for enhanced global
competitiveness.
Keywords:
Introduction
Right without remedy is meaningless. The chairmen of the drafting committee B.R. Ambedkar Said: “The constitution
Article 32 which talks about the Right to Constitutional remedies is the heart and soul of the Indian Constitution.” Today we
will discuss one of the parts of this section, which talks about the writs, there are five types of writs Habeas corpus,
mandamus, prohibition, quo warrant and certiorari. These writs can be used in different situations. Writ jurisdiction is a
special type of jurisdiction, specifically dealing with issuing writs. There are different jurisdictions of High courts and
supreme courts to issue writs.
What is Writ and why do they use
Writs are legal orders issued by a court, typically in common law jurisdictions, to compel someone to do or refrain from
doing a specific act. They are often used to protect individuals' rights and ensure justice.
Origin of Writs
In the United Kingdom, the development of the principle of judicial review was slow and gradual. Earlier the court could
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interfere only with the decision of the judicial And Corset Judicial Authority but not administrative decisions. The decision is
associated with “Provincial Picture House Ltd vs Wednesbury Corporation,” which altered this position. In this case, the
plaintiff company was granted a licence under the Cinematography Act subject to the condition that “no children under
the age of 15 years shall be admitted to any entertainment whether accompanied by an adult or not.” This condition was
challenged as unreasonable, and the provision of the Sunday Entertainment Act was also challenged. The court held that it
cannot interfere as an appellate authority overriding the decision of such an authority, but only as a judicial authority
concerned to see whether it contravened the law by acting over its power. Lord Greene enunciated “principles of
reasonable.” This was described to mean action based on illegality, irrelevancy and the like.
It was not within the courts’ Constitutional role to criticise executive decisions on their merits. They could intervene only
in case of unreasonableness. Later on, Lord Diplock in the case of “Council of Civil Service Union v Minister for the Civil
Services” widened the ground of judicial review. He particularly emphasised the principle of proportionality in addition to
three grounds upon which administrative action is subject to control by judicial review, namely “first illegality”, the second
“irrationality” and third “procedural impropriety”.
Professor Jowell describes the proportionality test as involving four stages process posing the following question:
1. Did the action pursue a legitimate aim?
2. Where are the means employed suitable to achieve that aim?
3. Could the aim have been achieved by less restrictive alternative?
4. Is the derogation justified overall in the interest of a democratic society?
The recent decision of the UK Supreme Court in “Pham v Secretary of State” for the Home Department 2015 UKSC 19
marks a turning point in the role of proportionality as the common law ground of judicial review.
Indian origin of writs the Supreme Court of Calcutta was established by the charter of 1774 which was issued under the
Regulating Act 1773 and the power of judicial review. The power of the judge of the court was the same as that of the
judges of the court of king’s bench in
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England. Later on, with the establishment of the high court, the power of judicial review was exercised by the high court in
all matters including contractual matters.
Types of Writs
1. Habeas Corpus: The writ of habits corpus is used to secure the release of a person who has been detained unlawfully or
without legal justification.
The great value of the writ is that it enables an immediate determination of a person’s right to freedom. Detention may
be unlawful if inter alia it is not by law or procedure established by law has not been strictly followed in detaining a person
or there is no valid law to authorise detention, or the law is invalid because it infringes a fundamental right, or the
legislative enacting it exceed its limits. Detention should not contravene Article 22 for example, a person who is not
procedure before a magistrate within 24 hours of his detention is entitled to be released. The power of detention vested in
authority, if exceeded abused or exercised mala fide makes that detention unlawful. Article 21 of the constitution having
declared that no reason shall be deprived of life and liberty, except by the procedure established by law, machinery was
needed to examine the question of illegal detention was utmost promptitude. The writ of habeas corpus is such a device.
the writ has been described as a writ of right, which is guaranteed ‘ex debito justitiae’. through a writ of right, it is not a
writ of course, The application must show a prime facie case of unlawful attention.
2. Quo Warranto: The writ lies only in respect of a public office of a substantive character. The writ does not therefore lie to
the question of the appointment of the college principal as it is not public office. Article 226 Gives judiciary weapons inter
alia to control the executive from making appointments to public office against the law and to protect citizens from being
deprived of public office to which he has a right. The writ calls upon the holder of a public office to show to the court
under what authority he has held the office. The court may oust a person from an office to which he is not entitled. It is
issued against the usurper of an office and the appointing authority it is not a party. The court can thus control election or
appointment to an office against the law and to protect a citizen he may entitled.
To file a petition for quo warranto it is not necessary That the petitioner should have suffered a personal injury himself,
or should seek to redress a personal grievance.
Petitioner for quo warranto has been moved to test the validity of the election of a person to the university syndicate, or as
the mayor of the municipal corporation, the nomination of a member of a Legislative Council by the governor appointment
of Chief Minister of state, or in a Chief Justice of India, or an advocate general of a state, or in the public prosecutor,
University teacher, presiding officer of a labour court, etc.
3. Mandamus: A Mandamus is a command issued by a court commanding a public authority to perform public duty
Belonging to its office. A mandamus is issued to enforce the performance of public duties by authorities of all kinds. For
example, when a tribunal omits to decide a matter which it is bound to decide, it can be commanded to determine the
question which is left undecided. although the Court Ordinary is reluctant to assume the function of the statutory
functionaries it will step in by Mandamus when the state fails to perform its duty.
it shall also step in when the discretion is exercised but the same has not been done legally and validly. Even though the
existence of alternative remedy is no bar to exercise jurisdiction under article 226. it will not be ordinary to do so unless it is
found that an order has been passed wholly without jurisdiction or contradictory to the constitutional or statutory
provision or where an order has been passed without complying with the principle of natural justice.
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The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where the
law has established no specific remedy, and where justice, despite demand, has not been granted. in the state of Kerala
scheduled tribe case, although the statutory provision requires restoration of equal extent of land. The court, perhaps,
without reference to the word “equal” issued a mandamus (In the case where the restoration was not possible) directing
the state to allot not only an equal extent of land, but where restoration was not possible to allot, such land by taking
recourse to the accusation, proceeding with the further direction not to allot hilly or other types of land not suitable for
agriculture purpose. These directions do not agree with the substantive laws of the country and could be cited to
effectively stifle non-agriculture projects of national importance or conceived in Public Interest by vested interest. This is
what happened to the Tata Motors “Nano” project. When Tata pulled out of West Bengal due to political agitation and
siege of the project side by political party, purportedly in the interest of owners of agricultural land, acquired by Tata for
setting up their plant.
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4. Certiorari & prohibition: The writ of Certiorari and prohibition are issued practically on similar grounds. The only
difference between the two is that Certiorari is issued to quash a decision after the decision is taken by a lower tribunal
while prohibition is issued before the proceedings are completed. The object of prohibition is prevention rather than cure.
For example, the high court can issue a prohibition to restrain a tribal from acting under an unconstitutional law. But if the
tribunal has already decided, then certiorari is a proper remedy in such a situation. It may be that in a proceeding before
an inferior body, the high court may have to issue both prohibition and certiorari; Prohibition to prohibit the body from
proceeding further and certiorari to quash what is already done by it. In the absence of very cogent or strong reason,
issuance of a writ of prohibition is improper. It was pointed out that since under CPC the Civil Court had sufficient power to
decide its own jurisdiction, the high court erred in interfering by prohibition and directed the civil code to decide the
preliminary issue as to the maintainability of suit and applicability of bar of res judicta/estoppel.
Supreme court jurisdiction to issuing writs
A right without a remedy does not have much substance.
The fundamental rights guaranteed by the Constitution would have been worth nothing had the Constitution not
provided an effective mechanism for their enforcement.
According to Article 13, fundamental right is enforceable and any law inconsistent with the fundamental right is void.
Article 13 is the key provision as it makes fundamental rights justifiable. Article 13 confers power and imposes a duty and
obligation on the courts to declare a law void if it is inconsistent with the fundamental right. This is power of a great
consequence for the court. The Supreme Court has figuratively characterised this role of the judiciary as that of a “sentinel
on the qui vive”. Article 32 conferred the power of the Supreme Court to enforce fundamental rights, the High Court also
have parallel power under Article 226 to enforce fundamental rights.
a) Article 32 enforces fundamental rights
As I stated above article 32 can be invoked only when there is an infringement of fundamental rights. The Supreme Court
has emphasized respect of article 32 as follows: It is well settled that the jurisdiction conferred on the Supreme Court under
article 32 is an important and integral part of the Indian Constitution but the violation of a fundamental right is the “sine
qua non” for seeking enforcement of those right by the Supreme Court. In order to establish the violation of fundamental
rights, the court has to consider the direct and inevitable consequence of the action, which is sought to be remediated or
the guarantee of which is sought to be enforced. Article 32 cannot be invoked simply to adjudge the validity of any
legislation or an administrative action unless it adversely affects the petitioner's fundamental rights.
b) Article 32 v Article 226
No action lies in the Supreme Court under Article 32 unless there is an infringement of fundamental rights. As the Supreme
Court has emphasised: the violation of fundamental rights is sine qua non of the exercise of the right conferred by Article
32. Article 32 differs from Article 226 in that, whereas Article 32 can be invoked only for the enforcement of fundamental
rights, article 226 can be invoked not only to enforce fundamental rights but for any other purpose as well. This means the
Supreme Court’s power under Article 32 is restricted, as compared with the power of the High Court under Article 226 for if
an administrative action does not affect a fundamental right, then it can challenge only in the High Court under Article 226
and not the Supreme Court under article 32.
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Hight court jurisdiction to issue writs
a) nature of the writ jurisdiction
A very significant aspect of the Indian Constitution is the jurisdiction it confers on the high court to issue writs. The writ
has been among the great safeguards provided by the British judicial system for upholding the rights and liberty of the
people. It was an act of great wisdom and foresight on the part of the constitution to introduce a system in India, and thus
constitute the Guardian of people’s legal rights. In the modern era of the welfare state, where there is government action
on a vast scale procedure to obtain speedily and effective redress against an illegal exercise of power by the executive is
extremely desirable. Through writ the high court can control, to some extent, the administrative authority in the modern
administrative age. The writ system provides an expedition and less expensive remedy than any other remedy available to
the normal court process.
b) Territorial jurisdiction to issue writs
A high court exercises its writ jurisdiction throughout the territories about which it exercises its jurisdiction:
1. To a person or authority having its location or residence within the court’s territorial jurisdiction; or.
2. If the cause of action, either wholly or partly arises within the high court’s territorial jurisdiction.
The high court can issue a writ even when the person resides or authority is located outside its territorial jurisdiction If the
cause of action wholly or partly arises within the court's territorial Jurisdiction, this is a very useful constitutional provision
under Article 226 (2) as the high court within whose Jurisdiction a cause of action arises is competent to issue the writ to a
central government located at New Delhi.
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c) Writ Jurisdiction is not appellate but supervisory in nature
The Supreme Court has emphasised time and again that the power of the high court under Article 226 is supervisory in
nature, and not akin to appellate power. The main purpose of this power is to enable the high court to keep the various
authorities within the bounds of the power but not to sit as an appealed body over these authorities. While exercising
power under Article 226 the high court cannot go into Correctness or the merit of the decision taken by the concerned
authority, but a review of how the decision is made. It only ensures that the authority arrives at the division according to
law and by the principle of natural justice wherever applicable.
Private sector
The private sector is a critical component of any economy, serving as an engine for innovation, economic growth, and job
creation. In the context of India, the private sector has played a pivotal role in transforming the nation's economic
landscape. This article aims to delve into the essence of the private sector, its development, and the prospective trajectory
for India in the upcoming years.
Understanding the Private Sector
The private sector encompasses businesses and enterprises owned and operated by individuals or groups for profit. It
stands in contrast to the public sector, which includes government-owned entities. In a market-driven economy like India,
the private sector is a driving force behind economic activities, fostering competition, efficiency, and entrepreneurship.
Development of the Private Sector
The evolution of the private sector in India has been marked by significant milestones. Post-independence, the country
followed a mixed economy model, with a dominant public sector. However, in the early 1990s, India embraced economic
reforms, liberalization, and globalization, paving the way for the expansion of the private sector.
Several factors contributed to the growth of the private sector in India. Economic reforms, including the dismantling of
licensing and permit raj, encouraged private enterprises to flourish. The reduction of trade barriers and opening up to
foreign investment further fueled growth. Technological advancements and increased access to information also played a
crucial role in shaping a vibrant private sector.
Key Sectors Driving Growth
India's private sector spans a multitude of sectors, each contributing to the overall economic development. Information
Technology (IT), telecommunications, healthcare, education, and manufacturing are among the key sectors that have
witnessed substantial private sector involvement.
The IT sector, in particular, has emerged as a global powerhouse, with Indian companies becoming leaders in software
development, IT services, and business process outsourcing. The private sector's prowess in adapting to technological
advancements has been a cornerstone of India's economic success.
Challenges and Opportunities
While the private sector has been a catalyst for economic growth, it is not without challenges. Issues such as bureaucratic
hurdles, regulatory complexities, and access to finance have posed obstacles for entrepreneurs. Additionally, there is a
need to address income inequality and ensure that the benefits of economic growth are inclusive.
However, these challenges also present opportunities for reform and improvement. Streamlining regulatory processes,
enhancing infrastructure, and promoting skill development can further propel the private sector forward. The advent of the
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Fourth Industrial Revolution offers opportunities for innovation and disruption, which can be harnessed by private
enterprises to stay competitive on the global stage.
India's Future Trajectory
Looking ahead, the private sector is expected to play a pivotal role in India's economic development. The government's
initiatives such as "Make in India," "Digital India," and "Skill India" underscore a commitment to fostering a conducive
environment for private sector growth.
The ongoing demographic dividend, with a large young population, positions India favourably for economic expansion. As
the education and skill levels of the workforce improve, the private sector can tap into this demographic advantage to
drive productivity and innovation.
Foreign Direct Investment (FDI) is likely to be a key driver of private sector growth in India. The government's efforts to
ease FDI norms and attract foreign investors indicate a strategic approach to leveraging external capital and expertise.
Collaborations with global entities can bring in advanced technologies, create job opportunities, and enhance the
competitiveness of Indian businesses on the international stage.
Conclusion
The constitutional provision of writ jurisdiction, rooted in the Indian Constitution's Article 32 and Article 226, serves as a
crucial mechanism to safeguard citizens' rights and liberties. Originating from the British judicial system, writs are legal
orders that can be employed in various situations, such as Habeas Corpus for unlawful detention, Quo Warranto for
challenging appointments, Mandamus for enforcing public duties, and Certiorari and Prohibition for reviewing and
preventing decisions of lower tribunals. While the Supreme Court holds the power to enforce fundamental rights through
Article 32, the High Courts, with their territorial jurisdiction, exercise a supervisory role through Article 226. This jurisdiction,
not being appellate but supervisory, enables the High Courts to ensure that administrative authorities adhere to legal
processes and principles of natural justice. Overall, the writ system provides an expeditious and cost-effective remedy,
contributing to the effective redress of grievances in the modern administrative age.
The private sector is the backbone of India's economic growth. Its journey from a controlled economy to a dynamic and
competitive landscape showcases the resilience and adaptability of Indian businesses. As India continues to navigate the
challenges and opportunities in the global economic arena, a robust private sector will be instrumental in shaping the
nation's destiny. With strategic reforms, technological innovation, and a commitment to inclusivity, the private sector is
poised to drive India's economic success in the years to come.
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