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Writs are the legal order given by the court or other legal authority to do an act or abstain someone from doing an act. Moreover, jurisdiction is the power to make a legal order under specific matters.
So, the of writs in India is from the Royal Charter of 1774 under which the Supreme court was established in Calcutta and for the first time East Indian company took parliamentary control of India. While framing the constitution, the Constitution maker took the idea of writs into consideration but as India is a large country there was a need to make some changes in its scope due to which High courts also have a power of writ jurisdiction.
The farmers of our Constitution gave fundamental rights from Article 12-35 under part III where Article 32 & 226 provides remedies to an individual who directly goes to the Supreme court or the High court respectively if any of his fundamental rights are infringed by any individual, or by the State.
Article 32 is the soul of the Constitution said by B.R.Ambedkar
As the fundamental rights are guaranteed that means person whose right is violated he can directly go to the Supreme court .when the writ is before the Supreme court it cannot be refused for any reason. Moreover, these rights were suspended at the time of National Emergency but Article 21 &22 of the Constitution have special status that they cannot be suspended even at the time of emergency.
Article 226:- This Article empowers High courts to issue writs on matters related to violation of Fundamental right or in other matters too (related to any personal legal right).
Types of writs:-
Habeas Corpus:- Generally it means 'To bring a body' before the court The writ of habeas corpus is the legal procedure which acts as a remedial measure for the person who is illegally detained. It is the most important right available to the person detained unlawfully. The basic purpose for which this writ is used is to release a person from unlawful detention or imprisonment. This writ is of great importance as it determines a person his right to freedom and personal liberty.[1]
Mandamus:- It means 'we command' simply its an order from superior authority to lower authority to perform its function properly.This writ cannot be claimed but it has a discretionary power of court to impose such order for proper functioning of the public authority. In the case of Unni Krishnan vs Union of India, held that a private medical/ engineering college comes within the writ jurisdiction of the court irrespective of the question of aid and affiliation.[2]
Quo warranto:- It means ' By what authority' that it's a question by the court to any Public servant who does any work which was not under his control.
Prohibition and certiorari:- These two writs act as the phrase ' prevention is better than cure' that means prohibition is to prevent or to stop the lower court or tribunal to perform in certain matters which is not into its jurisdiction by the superior court . Whereas certiorari means to cure i.e to quash the order of lower court or tribunals by the superior court for the proper consideration of the matter.
Jurisdictions:-
Under Article 32 and 226 empowers the Supreme court and High courts to issue in any of the above mentioned writs but there was an difference in their jurisdiction where HC have wider scope in the ambit of jurisdiction as compared to the SC .High courts may give it’s writs jurisdiction on the fundamental right or in other matters while SC have only a writ jurisdiction over fundamental rights.Further SC can’t refuses any of the writ but HC can do so as there was an discretionary powers available.
Territorial jurisdictions:- High courts have a power to issue writ jurisdiction to any person or an authority having location or residence within the court’s jurisdiction whereas the SC can take writ jurisdiction from all over the territory of India. In the case Union of India v. T.R. Varma SC said that if the alternative remedies of an individual are exhausted then he cannot fill a writ petition under Article 226. [3]
Footnotes :-
[1]https://www.google.com/amp/s/blog.ipleaders.in/writ-habeas-corpus/amp/
[2]https://m.jagranjosh.com/general-knowledge/amp/writs-and-their-scope
[3] https://www.financialexpress.com/archive/writ-jurisdiction-of-high-courts/
References:-
[a]https://shodhganga.inflibne.ac.in
[b] https://youtu.be/faltMd2o5
[C]1980 AIR 1579
[d]1993 AIR 2178
[e] AIR 1957 SC 882
Author:- Jaishri Gautam BACL (Nagpur)