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WRIT OF PROHIBITION UNDER ARTICLE 226 AND 227 OF THE INDIAN CONSTITUTION

Article submitted by C. Amirdha varshini, Third year b.com., l.l.b., (hons.), SASTRA deemed to be University.


INTRODUCTION

Writs are formal directives or constitutional remedies issued by the Supreme Court or High Court to the lower courts or the statutory authorities against breaches of fundamental rights. The source of the writs in India goes back to the Regulating Act of 1773. The Supreme Court of Calcutta was created by a charter in 1774. The Supreme Courts of Madras and Bombay have also formed a similar charter with equivalent provisions in 1801 and 1823, respectively. Letters patent have been granted to all the three courts. Such courts were succeeded by the High Courts in 1862 by the High Courts Act of 1861. The High Courts so created had all the powers bestowed upon them by the Supreme Courts substituted by other judges.

Therefore, the three Presidency High Courts retained the right to grant writs as heir to the Supreme Court. Other High Courts did not have these powers, which were conferred on the high courts of president, because they were constituted later. The special authority bestowed by the Charter on the three Presidency High Courts was not stated in the patent letters of the subsequent courts. Later, India got independence and the Constitution of India was enforced. The Fundamental Rights were incorporated which ensures basic human rights to the citizens. To safeguard these rights and ensure that every citizen gets these rights, writs were also incorporated in the Constitution.


PROVISIONS RELATED TO WRITS

· Article 32[1] of the Constitution gives the right to the Supreme Court for conducting appropriate proceedings for enforcing the Part III of the Constitution. The Supreme Court shall have the authority to issue directions or orders or writs, including those pertaining to habeas corpus, mandamus, prohibition, quo warranto and certiorari, as necessary, in order to exercise the privileges granted in Part III.

· Article 226[2] of the Constitution provides the power to issue writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari to the High Court for any appropriate cases, in order to protect the privileges granted in Part III. This writ can be given to any Government, authority and extendable also to private persons The power bestowed on the High Court through this Article shall not derogate from the power conferred on the Supreme Court by Article 32(2).

· According to Article 227[3] of the Constitution, all courts and tribunals shall be regulated by each High Court in the jurisdictions over which it exercises jurisdiction. The High Court can request for the restoration of such tribunals, make general laws and recommend modes of legislation for the operation and proceedings of certain courts, and recommend ways under which the officers of every other court shall hold records, entries and accounts.

· The primary difference between Article 226 and Article 227 is that the former is in the exercise of original jurisdiction and the latter is in the exercise of supervisory jurisdiction.

TYPES OF WRITS

The five types of writs mentioned in Article 32 and Article 226 are,

Habeas Corpus

Habeas Corpus is a Latin word which means ‘to have the body of’. The writ is intended to impose an illegal restraint against the basic human right to individual freedom. The Supreme Court / High Court, by Habeas Corpus, directs one person who has detained another individual to put the latter's body before the judiciary. This writ can be issued against both public and private authorities. Habeas Corpus cannot be granted when imprisonment is legal, when the charges are for the contempt of the state or the judiciary, when detention is by a competent jury, and when imprisonment is beyond the court's authority.


Mandamus

The real sense of this mandamus is 'We Command.' The court uses this writ to instruct the public officer, who neglected to do his duties or declined to do his job, to resume his work. In addition to a public officer, Mandamus can be given for the same reason against any public agency, corporation, the lower court, tribunal or government. Mandamus cannot be issued against a private individual. Mandamus cannot be given to impose departmental orders which do not have legislative force, or to order anyone to work where the form of job is voluntary and not mandatory, or to implement a contractual duty against the President of India or the Governors of the State or against the chief justice of a high court working in a judicial capacity.


Prohibition

Prohibition means 'to forbid.' A superior court issues Prohibition against a court lower court to prohibit the latter court from violating its authority or usurping a power that it does not own. It can be provided only against judicial and quasi-judicial entities. This cannot be provided against administrative bodies, legislative bodies and private persons or organizations. The writ may only be given while the cases are pending in the trial. When the court, before which the case is pending, has ceased to function, the prohibition writ does not lie as there will be no cases on which it may act. On the other hand, if the law operates, the writ can be released at every point of the trial before the lower court.


Certiorari

The meaning of Certiorari is to be informed.' This writ is given to a lower court or tribunal by a superior court directing the former to transfer the pending cases to the latter, or quash the decision of the former in any case. It is issued if the lower court or tribunal lacks authority, exercises undue authority or commits a procedural error. The Superior Court prevents and remedies the legal errors and implications thereof.


Quo Warranto

It is questioning the authority of the person. It is issued to deter a person from unlawfully usurping a public office. The court examines the validity of a person's petition to a public office. Quo-Warranto may only be provided where a law or the Constitution requires the substantial public office of a permanent character formed by it. This writ cannot be issued for private or ministerial office.


WRIT OF PROHIBITION

In the case of S. Govinda Menon vs The Union of India & Anr[4], The Supreme Court has clarified the court's authority to issue a prohibition writ. It states that the right to issue prohibition is essentially supervisory, and the key behind the prohibition writ is to prevent subordinate courts or tribunals from expanding their jurisdictional limits. This is a well-settled law arising from decided cases where the writ of prohibition is issued in case of exercising undue authority or misuse of judicial control or when acts are performed in contravention of Principles of Natural Justice by the lower courts

In Shewpujanrai Indrasanrai Ltd vs The Collector of Customs & Others[5], It was held that, by notification in the Official Gazette, the Central Government could, from time to time, prohibit or limit the transport , by sea or land, of goods of any specified description inside or outside India through any customs frontier as described by the Central Government. Further, without consulting the Central Government, the High Court could issue the writ of prohibition for barring customs authorities from imposing invalid conditions.

In the case of Surya Devi Rai vs. Ram Chander Rai[6], There is a lack of knowledge of the difference between the interpretation of Articles 226 and 227, and it is therefore, the common practice for lawyers to label their petitions as common pursuant to Articles 226 and 227 of the Constitution, although this practice has been disregarded in certain judicial statements. The court held that Article 226 of the Constitution shall be provided where a lower court is found to have operated without authority, by claiming authority which it does not have or extends its jurisdiction, or by acting in breach of the statute or the rules of practice or by acting in breach of the standards of natural justice in the absence of a prescribed process, and thus triggering a miscarriage of justice.

Article 227 shall be applied with a view to holding lower courts under their control. If the lower court has claimed jurisdiction that it does not have or has not exercised jurisdiction that it does, or the authority is exercised by the court in a way that is not allowed by statute, or there is lack of justice, the High court may invoke Article 227. By this decision, the Hon'ble Supreme Court placed all the subordinate judicial bodies under the framework of Article 226 of the Indian Constitution, curtailing the alternate remedy accessible to the grieved, but expressly or implicitly did not differentiate the powers of Article 226 and 227 of the Indian Constitution.

But this judgement was overruled in Radhey Shyam & Anr vs Chhabi Nath & Ors[7]. Conflicts involving partition proceedings, implementation of the judgment, the conflict between owner and occupant, and even, in money decree and in many other situations regarding property issues, written courts consider these conflicts. In certain instances, the High Courts regularly consider appeals on these conflicts according to Article 227 and view them as writ petitions. In the above-mentioned rule, throughout situations of property rights and conflicts between private parties, a legal court may not intervene unless there is a breach of the legislation unless it may be demonstrated that a private person is operating in collusion with statutory authority.

The court mentioned that, “it is evident from the law laid down in Mirajkar in para 63 that a distinction has been created between the judicial orders of inferior civil courts and the orders of inferior tribunals or courts that are not civil courts and which cannot issue judicial orders. The legal decisions passed out by the civil courts with plenary jurisdiction are of a different footing.”

The Court also reaffirmed on the difference between Article 226 and 227 stated in Umaji Keshao Meshram And Ors. vs Radhikabai, Widow Of Anandrao[8]. Proceedings pursuant to Article 226 exercise the High Court's original jurisdiction while proceedings pursuant to Article 227 of the Constitution are not original but supervisory. Article 227 significantly reproduces the provisions of Section 107 of the Government of India Act, 1915, except that this Article extends the power of superintendence to tribunals as well. Although the power is similar to that of an ordinary court of appeal, the power provided in Article 227 is intended to be used carefully and only in appropriate cases for the purpose of keeping the subordinate courts and tribunals within the limits of their authority and not for the correction of mere errors.

There is a trend in some High Courts to entertain petitions pursuant to Article 227 of the Constitution by designating them as writ petitions. This is sought to be explained by an erroneous appreciation of the ratio in Surya Dev and despite the recent amendment by the Civil Procedure Code (Amendment) Act, 1999 to Section 115 of the Civil Procedure Code. It is advised that the scope of section 115 of the CPC has been curtailed as a consequence of the amendment. Even if the scope of Section 115 of the CPC is curtailed, this has not led to the expansion of the superintendence power of the High Court. This is all too well established to be repeated that the High Court must obey the rule of law in the practice of its authority.


CONCLUSION

The Hon'ble Supreme Court affirmed the distinction between Articles 226 and 227 but at the same time curbed a few powers in the possession of the Hon'ble High Courts in enforcing the powers provided in Article 226 by entertaining petitions which did not threaten the constitutional rights of individuals. Article 226 and 227 authority is wide and must be invoked sparingly. This may be practiced to redress jurisdictional mistakes, but not to disturb pure factual results, which are still beyond the scope of an appellate tribunal. The object of the revision is to allow the revision court to reassure itself as to the validity, legitimacy or properties of any judgments, sentences or instructions reported or issued, and as to the regularity of any inferior criminal court prosecutions. Under Article 226, jurisdiction cannot be used revisional or appellate, as the subordinate court's rejection of the order does not raise the issue of violation of fundamental rights when the aggrieved has the alternative remedy of appeal.



[1] Article 32 of the Indian Constitution, 1949 [2] Article 226 of the Indian Constitution, 1949 [3] Article 227 of the Indian Constitution, 1949 [4] S. Govinda Menon vs The Union Of India & Anr, 1967 AIR 1274, 1967 SCR (2) 566 [5] Shewpujanrai Indrasanrai Ltd vs The Collector Of Customs & Others, 1958 AIR 845, 1959 SCR 821 [6] Surya Devi Rai vs. Ram Chander Rai, Appeal (civil) 6110 of 2003 [7] Radhey Shyam & Anr vs Chhabi Nath & Ors, CIVIL APPEAL NO.2548 OF 2009 [8] Umaji Keshao Meshram And Ors. vs Radhikabai, Widow Of Anandrao, AIR 1986 SC 1272, (1986) 88 BOMLR 432, 1986 (1) SCALE 681, 1986 Supp (1) SCC 401, 1986 1 SCR 731, 1986 (2) UJ 319 SC

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