Writ Jurisdiction: Article 226, and the Five Writs

The five writs

MU's label asks for writ jurisdiction, and an answer that does not explain the five writs is incomplete. Each has one job, and the job is easiest to remember as a question.

Habeas corpus, "that you have the body". Is this person lawfully detained? The writ commands whoever detains a person to produce him and show the cause. It looks at the authority for the detention, not the guilt of the prisoner. This is the writ of Kamaluddin's case and Sarup Chand's case in Module I, and it is the oldest of the five in Indian use.

Mandamus, "we command". Has a public authority failed to do a public duty? The writ commands the performance of a duty of a public nature. It does not lie to compel a discretionary act to be exercised in a particular way, only to compel the authority to act, or to act lawfully.

Prohibition. Is an inferior court or tribunal about to exceed its jurisdiction? The writ forbids it to proceed. It is preventive, and it issues while the proceeding is still pending.

Certiorari, "to be certified". Has an inferior court or tribunal already exceeded its jurisdiction, or acted in breach of natural justice, or committed an error apparent on the face of the record? The writ brings up the decision to be quashed. It is corrective, and it issues after the decision.

Quo warranto, "by what authority". By what authority does this person hold a public office? The writ calls on the holder of a public office to show his title, and if he has none the office is declared vacant.

Two distinctions carry marks. Prohibition and certiorari are the same jurisdiction at two different times, before and after the decision. And mandamus commands action while prohibition forbids it, so a student who confuses them has the direction of the remedy backwards.

Article 227: superintendence

Every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

Clause (2) allows the High Court to call for returns, to make and issue general rules and prescribe forms for regulating the practice and proceedings of those courts, and to prescribe the forms of books, entries and accounts. Clause (3) allows it to settle tables of fees. Clause (4) excepts courts and tribunals constituted by or under a law relating to the Armed Forces.

This is the article whose ancestry this book has followed three times: section 15 of the Indian High Courts Act 1861, section 107 of the Government of India Act 1915, section 224 of the Government of India Act 1935, and now article 227. The powers are almost word for word the same, with "and tribunals" added.

The practical difference between article 226 and article 227 is worth stating: 226 is a remedy invoked by a party, and produces a writ; 227 is a supervisory power of the court itself, exercisable to keep subordinate courts and tribunals within their authority, and it may be exercised even where no writ would lie.

Article 228: transfer of a constitutional case

If a High Court is satisfied that a case pending in a court subordinate to it involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the case, it shall withdraw the case and may either dispose of it itself or determine the question and return the case with a copy of its judgment.

That is section 225 of the Government of India Act 1935 with "this Constitution" for "this Act". The reason is the same as in 1935: a question about the validity of a law is too important to be decided by a court whose decision binds nobody.

What L. Chandra Kumar decided

The most important modern decision on this chapter is L. Chandra Kumar v. Union of India (1997), and it settles how far article 226 can be taken away.

Legislation made under articles 323A and 323B, which allow Parliament and State legislatures to set up administrative and other tribunals, had excluded the jurisdiction of the High Courts and the Supreme Court over matters within the tribunals' jurisdiction, except under article 136.

A bench of seven judges held that clause 2(d) of article 323A and clause 3(d) of article 323B, so far as they exclude the jurisdiction of the High Courts and the Supreme Court under articles 226, 227 and 32, are unconstitutional, and so are the exclusion clauses in the legislation made under them; that the power of judicial review vested in the High Courts and the Supreme Court under articles 226 and 32 is integral to the constitutional scheme and part of its basic structure; and that all decisions of such tribunals are subject to the High Court's writ jurisdiction under articles 226 and 227, before a Division Bench of the High Court within whose territorial jurisdiction the tribunal falls. Tribunals may still decide the vires of statutory provisions, but only as a supplementary and not a substitute jurisdiction.

For this paper the significance is exact: the superintendence that section 15 of the Act of 1861 gave the High Courts, and that article 227 continues, cannot now be taken away even by a constitutional amendment.

A worked example

Four grievances in a Maharashtra district, and the remedy for each.

A man held in police custody beyond the permitted period. Habeas corpus under article 226, and under article 32 as well because article 21 is engaged.

A municipality that refuses to decide an application it is bound by statute to decide. Mandamus under article 226, "for any other purpose". Article 32 does not lie unless a fundamental right is involved.

A tribunal about to hear a matter outside its jurisdiction. Prohibition. If it has already decided, certiorari.

A person exercising the powers of a public office to which he was never validly appointed. Quo warranto.

And if the tribunal in the third example was constituted under article 323A and the statute says its decisions are final and not open to the High Court, L. Chandra Kumar answers that the exclusion is unconstitutional and the writ lies to a Division Bench of the High Court.

Distinctions worth having straight

What beginners get wrong

"Article 226 is only for fundamental rights." It is for fundamental rights and for any other purpose, and that phrase is the whole difference from article 32.

"Article 227 is a writ jurisdiction." It is a power of superintendence, exercised by the court itself over subordinate courts and tribunals, and it descends from section 15 of the Act of 1861.

"Certiorari and prohibition are the same." They are the same jurisdiction at different stages: prohibition before the inferior tribunal decides, certiorari to quash after it has.

"A tribunal's decision cannot be challenged in a High Court if the statute says it is final." After L. Chandra Kumar, an exclusion of the High Court's jurisdiction under articles 226 and 227 is unconstitutional, and the challenge lies to a Division Bench.

Limits and criticism

Article 226 is the workhorse of Indian public law, and its two costs are well known.

Volume. Because it lies for any purpose against any authority, the High Courts carry an enormous writ docket, and the delay in disposing of it is one of the standing criticisms of the Indian legal system.

And the relationship with the alternative remedy. Because the jurisdiction is discretionary in its exercise even though it is constitutional in source, the High Courts have developed a body of self-imposed restraint: they will ordinarily decline a writ where an equally efficacious alternative remedy exists, or where disputed questions of fact require evidence. That restraint is not in the article and a student should describe it as judge-made.

For this paper the point to end on is the historical one. The writ jurisdiction that Impey's court exercised in Calcutta in 1775, over a few persons within one town, is now exercised by every High Court over every authority in its territory, cannot be excluded by statute, and cannot be excluded by constitutional amendment. That is a straight line from Module I to L. Chandra Kumar, and it is the answer to the question of what this subject is for.

Quick revision

• 226(1): every High Court, throughout its territories, may issue directions, orders or writs, including the five, to any person or authority including any Government, for Part III rights and for any other purpose.
• 226(2): also where the cause of action wholly or in part arises, though the authority sits elsewhere. 226(3): ex parte interim orders to be reconsidered within two weeks on application.
• The five: habeas corpus (is the detention lawful?), mandamus (do your public duty), prohibition (stop, you are exceeding jurisdiction), certiorari (quash what you decided beyond jurisdiction or against natural justice), quo warranto (by what authority do you hold that office?).
• 227: superintendence over all courts and tribunals, with returns, rules, forms and fees; from s.15 of 1861, s.107 of 1915, s.224 of 1935. Armed Forces courts excepted.
• 228: a substantial question of law as to the interpretation of the Constitution in a subordinate court is withdrawn to the High Court; from s.225 of 1935.
• L. Chandra Kumar (1997): exclusion of articles 226, 227 and 32 by articles 323A(2)(d) and 323B(3)(d) is unconstitutional; judicial review under 226 and 32 is basic structure; tribunal decisions go to a Division Bench of the High Court.

Test yourself

1. State the two differences between articles 32 and 226 that matter most. Article 32 lies only for the enforcement of fundamental rights, while article 226 lies for fundamental rights and for any other purpose; and article 32 is itself a guaranteed fundamental right of the petitioner, while article 226 is a power of the High Court.

2. Explain each of the five writs in one line. Habeas corpus tests the lawfulness of a detention; mandamus commands a public authority to perform a public duty; prohibition forbids an inferior court or tribunal from exceeding its jurisdiction while the matter is pending; certiorari quashes a decision already made beyond jurisdiction or in breach of natural justice or on an error apparent on the record; quo warranto calls on the holder of a public office to show his authority.

3. What is article 227, and where does it come from? The High Court's power of superintendence over all courts and tribunals in its territories, with power to call for returns, make general rules and forms and settle tables of fees. It descends from section 15 of the Indian High Courts Act 1861, section 107 of the Government of India Act 1915 and section 224 of the Government of India Act 1935.

4. What did L. Chandra Kumar decide, and why does it matter to this topic? That clause 2(d) of article 323A and clause 3(d) of article 323B, so far as they exclude the jurisdiction of the High Courts and the Supreme Court under articles 226, 227 and 32, are unconstitutional; that judicial review under articles 226 and 32 is part of the basic structure; and that all such tribunals' decisions are subject to the writ jurisdiction of a Division Bench of the High Court. It matters because it makes the writ jurisdiction immune even from constitutional amendment.

5. Why was article 226(2) inserted? Because without it only the High Court within whose territories a Government or authority had its seat could issue a writ against it. Clause (2) allows any High Court within whose territories the cause of action wholly or in part arises to do so.