Power of High Courts to Issue Writs

The power of High Courts to issue writs is one of the most important constitutional provisions for the protection of fundamental rights and the ensuring of justice in India. This power is granted under Article 226 of the Constitution of India and enables every High Court to issue writs, directions, or orders to any person or authority within its territorial jurisdiction.
Through this authority, High Courts act as guardians of the Constitution at the state level, ensuring that executive and legislative actions remain within the limits of law.

Constitutional Basis: Article 226

Article 226 (1) of the Constitution states:

“Every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories, directions, orders, or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.”

Thus, Article 226 empowers High Courts to issue writs not only for enforcement of Fundamental Rights (Part III) but also “for any other purpose”, i.e., for enforcement of legal rights and to ensure administrative justice.

Scope of Writ Jurisdiction under Article 226

1. Wider than Supreme Court’s Writ Power (Article 32):
   • The Supreme Court can issue writs only for the enforcement of Fundamental Rights.
   • The High Courts, under Article 226, can issue writs for both Fundamental Rights and other legal rights.
   • Hence, the jurisdiction of the High Court under Article 226 is broader in scope.
2. Territorial Jurisdiction:
   • A High Court can issue writs to any person or authority located within its territorial limits.
   • It can also issue writs to an authority outside its territory if the cause of action arises, wholly or partly, within its jurisdiction (as per the 15th Constitutional Amendment, 1963).
3. Discretionary Nature:
   • Unlike Article 32 (which provides a Fundamental Right to Constitutional Remedies), the High Court’s power under Article 226 is discretionary.
   • The Court may refuse to issue a writ if an alternative remedy (such as appeal or review) is available.

Types of Writs Issued by High Courts

The Constitution recognises five kinds of writs that the High Courts (and Supreme Court) can issue. These writs, derived from English common law, are judicial remedies designed to uphold individual rights and ensure lawful governance.

1. Habeas Corpus (Latin: “You may have the body”)

Purpose: To protect personal liberty by ensuring that no person is unlawfully detained or imprisoned.
Features:

• Issued to produce a detained person before the court and justify the detention.
• If the detention is found to be illegal, the person must be released immediately.

Who can apply:

• The person detained or any other person on their behalf.

Examples:

• Unlawful police custody.
• Preventive detention without legal authority.

Landmark Case:

• Kanu Sanyal v. District Magistrate, Darjeeling (1973): The Court held that the legality of detention can be examined even without producing the detainee physically.

2. Mandamus (Latin: “We command”)

Purpose: To command a public authority or government officer to perform a public or statutory duty that they have failed or refused to perform.
Features:

• Cannot be issued against a private individual or company.
• Cannot be issued against the President, Governor, or judges acting in their judicial capacity.
• Used to enforce public duties.

Example: If a municipal authority fails to issue a licence despite eligibility, the High Court may issue a writ of mandamus directing the authority to act according to law.
Landmark Case:

• Praga Tools Corporation v. C. A. Imanual (1969): Mandamus cannot be issued to enforce private contracts.

3. Prohibition (Latin: “To forbid”)

Purpose: To restrain a lower court or tribunal from exceeding its jurisdiction or acting contrary to the law.
Features:

• Issued by a superior court (High Court) to a subordinate court or quasi-judicial authority.
• Prevents the authority from continuing proceedings that are ultra vires (beyond legal authority).

Example: If a tax tribunal tries to decide a criminal matter, the High Court can issue prohibition to stop the proceedings.
Landmark Case:

• East India Commercial Co. Ltd. v. Collector of Customs (1962): The Supreme Court held that prohibition can be issued where a tribunal acts without jurisdiction.

4. Certiorari (Latin: “To be certified”)

Purpose: To quash the order or decision of a lower court, tribunal, or authority that has acted without jurisdiction, in excess of jurisdiction, or in violation of natural justice.
Features:

• Issued after the order has been passed (while prohibition is preventive, certiorari is corrective).
• Can be issued against judicial, quasi-judicial, and administrative authorities performing adjudicatory functions.

Example: If a disciplinary authority dismisses an employee without giving them a fair hearing, the High Court may quash the order using certiorari.
Landmark Case:

• T.C. Basappa v. T. Nagappa (1954): Defined the scope of certiorari as a remedy against jurisdictional errors and violations of natural justice.

5. Quo Warranto (Latin: “By what authority”)

Purpose: To prevent a person from usurping or unlawfully holding a public office to which they are not entitled.
Features:

• Issued to check the legality of appointment to public offices created by statute or constitution.
• Any citizen can file this writ — not just an aggrieved person.
• Not applicable to private or non-statutory offices.

Example: If an ineligible person is appointed as the Vice-Chancellor of a university, the High Court can issue quo warranto.
Landmark Case:

• University of Mysore v. Govinda Rao (1964): Laid down conditions for issuing quo warranto against wrongful appointments.

Differences between Writ Jurisdiction of High Courts and Supreme Court

Limitations on High Court’s Power to Issue Writs

1. Alternative Remedies:
   • The court may refuse a writ if an adequate alternative legal remedy (such as appeal or review) is available.
2. Discretionary Nature:
   • The issuance of writs depends on judicial discretion, not an automatic right.
3. Territorial Limits:
   • The High Court cannot issue writs outside its jurisdiction unless the cause of action partly arises within its territory.
4. Not for Private Matters:
   • Writs generally do not apply to private disputes unless they involve public duties or statutory obligations.

Significance of the Writ Jurisdiction of High Courts

1. Protection of Rights:
   • Ensures enforcement of both fundamental and legal rights.
2. Judicial Control over Administration:
   • Prevents arbitrary and illegal actions by public authorities.
3. Decentralised Constitutional Remedies:
   • Provides easier access to justice through state-level High Courts, reducing the burden on the Supreme Court.
4. Preservation of Rule of Law:
   • Maintains constitutional supremacy by holding authorities accountable.
5. Promotes Good Governance:
   • Ensures transparency, fairness, and legality in administrative decisions.