2. Habeas corpus
• ‘habeas corpus’ – in Latin- ‘to have the body’
• Writ- nature of an order- calling upon the
person who has detained/arrested another to
produce the latter before the court.
• In order to let the court know- on what
grounds he has been confined & set him free-
if there is no legal justification for the
imprisonment.
• As held in State of Bihar v. Kameshwar
Prasad Verma
3. Habeas corpus
• Effective remedy – against illegal restraints
• Who may apply- application for the writ –
made by a person illegally detained.
• If he is unable – any other person having
interest in the prisoner may apply.
• (father, mother, sister, brother, wife, son,
daughter, friend)
• But the applicant must not be a total
stranger.
• (Chiranjit Lal Choudhary v. Union of India)
4. Procedure
• Application for writ of habeas corpus –
• To be accompanied by an affidavit – stating facts &
circumstances.
• If the court is satisfied- that there is prima facie case-
for granting the prayer- it will issue rule nisi – calling
upon the detaining authority- to show cause as to why
the rule nisi should not be made absolute.
• The court will consider the merits of the case & will
pass an appropriate order.
• If detention is not justified- it will issue the Writ &
direct the detaining authority to release the prisoner.
• State of Bihar v. Kameshwar Prasad Verma.
5. Practice
• Delay or laches : generally delay in applying – does not
disentitle the petitioner from the relief.
• As long as there is detention – the application for this writ
can be made.
• Character : writ of habeas corpus – only remedial & not
punitive
• Generally, only releases the detained & does not punish the
detaining authority.
• Talib Hussain v. State of J& K
• If during the pendency of the petition – the prisoner is
released – petition becomes infructuous.
• Disobedience – A writ of habeas corpus must be obeyed by
the person or authority to whom it is issued. Disobedience
of the direction would amount to contempt of court.
6. Practice (contd.)
• State - required to place before the court- all
relevant & material facts, with utmost fairness.
• Duty of the court - to strike a balance between
the need to protect the community on one hand
& preserve the liberty of a citizen on the other.
(ADM Jabalpur v. Shivkant Shukla)
• Successive applications- generally not
entertained; but entertained only if there are
new or fresh grounds.
• Compensation – usually not awarded, but in
exceptional circumstances- courts do award
compensation. (Rudal Shah v. State of Bihar)
7. The Habeas corpus case
• Habeas corpus & emergency
• ADM Jabalpur v. Shivkant Shukla
• The SC did not entertain a Writ of Habeas Corpus- which
was filed – seeking an order of release- by the detenue –
under the MISA – during the Emergency.
• & also held that Art 20 & Art 21, could be suspended during
Emergency.
• However, Khanna J – dissenting judgment- is a correct
piece of law on the point, where he opined that these
Articles – give a mere protection to the already existing
rights & the State cannot suspend them at its whim.
• 44th Amendment to Constitution, 1978 – saved the
Constitution from the authoritativeness of the Govt., in
power – the rights conferred by Art 20, 21 – cannot be
suspended even during an emergency.
8. Mandamus
• ‘mandamus’ – ‘command’
• Order issued by a court to a public
authority asking it to perform a public
duty imposed upon it by the
Constitution or by any other law. (State
of Mysore v. K.N.Chandrashekar)
• James Bagg’s case-
• Where membership of a local body was
restored to the applicant –through
9. Mandamus
• Issued when – a Governmental body,
corporation, court or other public authority- is
supposed to do or refrain from doing a
specific act-but has not acted in that context-
the court will direct it, to act in a particular
manner
• a Judicial remedy- promotes justice – can
correct all errors which tend to the oppression
of the subject & grant him appropriate relief.
• But this Writ – at the discretion of the Court;
however this discretion –to be exercised fairly,
reasonably & on legal principles.
10. Mandamus
• 3 important conditions:
• Legal right – the petitioner must have a legal
right.
• (Umakant Saran v. State of Bihar; State of
Kerala v. Lakshmikutty)
• Legal duty – the opposite party (public
authority) must have a legal duty – to be
performed.
• the duty may be Constitutional or Statutory,
but not contractual.(however allowed at
times, where public interest is at stake)
11. Mandamus
• Writ of Mandamus – can be issued if the
public authority has acted –
abuse/excess/misuse of its power
• Acted mala fide
• Non-application of mind
• Irrelevant considerations
• Mandamus – refused – when there is an
alternative remedy.
12. Mandamus
• Procedure –
• Person – whose right has been infringed –
because of non-compliance of duty by the public
authority.
• The right must be subsisting – during the time of
petition –filed.
• Company- MANDAMUS – issued against a
company also. (Chiranjit Lal Choudhary v. Union
of India)
• But, this is criticized – because – WRIT – is a
public law remedy & should not act to indemnify
personal loss (personal right)
13. • Practice -
• Lies against whom – Parliament, State legislatures,
Courts, Tribunals, Government, Govt. officers, local
authorities, other authorities (Art. 12)
• Does not lie against – the President or the Governor
(for powers & duties under Art. 361)
• And the State Legislatures (if directed towards
proving the laws made by them as being
unconstitutional)
• Delay - law of Limitation does not apply in Writs, but
equitable doctrine of delay & laches- applies to such
proceedings.
14. • 3 types –
1. Certiorarified Mandamus
2. Continuing Mandamus
3. Anticipatory Mandamus
• Certiorarified Mandamus-
• merger of 2 writs – Certiorari & Mandamus
• Calling the authority for records (to certify) &
directing the authority to perform its duty.
15. • Continuing Mandamus –
• Relief given by a court of law through a series
of ongoing orders over a long period of time,
directing an authority to do its duty or fulfill
an obligation in general public interest, as &
when a need arises over the duration a case
lies with the court, with the court choosing
not to dispose the case off in finality.
• Court may issue directions (interim) on time
to time & require the authority to implement
them. (Environmental matters, PIL)
16. • Anticipatory Mandamus
• Normally , a writ of Mandamus is issued by a
court in case legal right of the applicant has been
violated. Mere apprehension – that a right would
be violated – does not allow an applicant to seek
redress.
• However, if such threat is real or genuine or
there is imminent threat of invasion of right, a
petition for mandamus would lie. (K.K.Kochunni
v. State of Madras)
• Execution - a Writ of mandamus by a competent
court must be obeyed & the judgment &
directions must be implemented.
• Intentional disobedience – amounts to contempt
of Court.
17. • Mandamus – has come to stay as a leading,
residuary & all pervading remedy in public law.
• Judicial review is best served by this writ than
even by certiorari & prohibition.
• Position of mandamus in India – very encouraging
• Most popular Writ – extensively & successively
used.
• (order of Writ – against an incorporated Company
– quite criticized – since it is a public law remedy
& should not intrude into private law domain)
18. PROHIBITION
• Extraordinary preventive writ.
• Issued against a Judicial or Quasi-Judicial
authority when such authority exceeds its
jurisdiction or tries to exercise jurisdiction not
vested in it.
• High Courts & the Supreme Court – can keep a
subordinate court or a Tribunal – under check-
within jurisdictional boundaries.
• Held in Govinda Menon v. Union of India
• Paramount object of writ of Prohibition – to
prevent encroachment of jurisdiction.
19. Prohibition
• Prohibition – not a proceeding between private
litigants, but a proceeding between 2 courts- a
superior court and a subordinate court.
• Grounds-
• Absence or excess of jurisdiction (Govinda
Menon v. UoI)
• Violation of Natural Justice (Hari Vishnu Kamat v.
Ahmad Ishaque)
• Unconstitutionality of Statute
• Infringement of fundamental rights (Bidi Supply
Co. v. UoI)
• Error of law apparent on the face of record.
20. • Who may apply-
• When the defect of jurisdiction is apparent on the
face of the proceedings- an application for
prohibition can be brought by an aggrieved party
or by a stranger as well.
• Issued against –
• Courts, Tribunals, other quasi-Judicial
authorities.
• Delay or laches - Writ of Prohibition lies,
irrespective of delay or laches.
• this Writ – is Preventive and not corrective in
nature
• When – during pendency of the proceedings
before a subordinate court, tribunal, or quasi-
judicial authority
21. • It is a Writ of Right – not discretionary.
• Bengal Immunity Co. Ltd. v. State of Bihar
• The existence of an alternative remedy- matter of
consideration for the Writ Courts
• But alternative remedy – not an absolute bar to
issue the Writ
• Limitations-
• Can be issued only if it is proved that the
subordinate court/quasi-judicial authority has no
jurisdiction or acts in excess of jurisdiction
• Cannot lie – if the proceedings have been
terminated & the authority has become functus
officio
• Hari Vishnu Kamath v. Ahamad Ishaque.
22. • Disobedience - Writ if not obeyed – liable for
contempt
• Observation-
• Writ of Prohibition – lies where there is-
absence of jurisdiction or excess of jurisdiction
• & If the defect of jurisdiction is apparent
• It is not only the power but the duty of the
court- to prevent the subordinate
court/authority from usurping jurisdiction not
vested in it.
• But the courts should not be chary in
exercising the power of prohibition.
23. Certiorari
• Command for information
• ‘certiorari’ – ‘to certify’
• Order issued by the writ court to a
subordinate court or other quasi-judicial
authority – to investigate & decide the legality
& validity of the orders passed by it.
• Object - is to limit the jurisdiction of
subordinate court or quasi-judicial body
• a great corrective writ
24. Certiorari
• Certiorari & Prohibition - issued against
subordinate courts or quasi-judicial bodies
• But, the timing of remedy – different-
• Prohibition - issued before the decision/order
(during pendency of proceedings)
• Certiorari - issued after the decision/order
• Certiorari – neither a Writ of course nor a Writ
of Right – at the discretion of the court.
25. Grounds
• Absence or excess of jurisdiction (R. v.
Minister of Transport)
• Jurisdictional fact (State of MP v. D K Jadav;
Ebrahim Aboobakar v. Custodian)
• Error apparent on the face of the record
(Ujjam Bhai v. State of UP)
• Error of fact- cannot be corrected by Certiorari
• Error of Law – order can be quashed by
Certiorari
• Violation of Natural Justice (AK Kraipak v. UoI)
26. • Who may apply - party aggrieved – whose
rights are affected may apply – but if the
question affects public at large – any person
may apply.
• Certiorari – lies against – subordinate courts;
tribunals; quasi-judicial bodies
• If a court or tribunal – becomes- functus
officio – even then Certiorari can be issued
against it. (Hari Vishnu Kamat v. Ahamad
Ishaque)
• Cannot be issued against – an individual,
company, private authority, an association.
27. • Delay & laches – ground for refusal to issue
Certiorari
• Disobedience – non-compliance/ willful-
disobedience would amount to contempt of
court.
• Conclusion:
• SC & HCs - act in supervisory capacity & not
as an appellate court.
• -cannot re-evaluate or re-examine the facts &
circumstances leading to the passing of the
impugned order.
28. Quo-warranto
• ‘quo warranto’ – ‘what is your authority’
• Remedy against occupier or usurper of
independent public office.
• By this Writ – the person concerned is called
upon to show to the court – by what authority he
holds the office, franchise.
• If the holder has no authority- to hold the office –
he can be ousted from its enjoyment.(University
of Mysore v. C D Govinda Rao)
• writ – at the discretion of the court to grant or
refuse, mot a writ of right
29. • Conditions – for issuing this writ-
• Office- public nature
• Substantive character
• Must be statutory
• Holder- actual occupation
• Who may apply - any person may apply (G D
Karkare v. T L Shevde)
• If alternative remedy exists – then quo-
warranto may be refused to be granted;
however- alternative remedy is not an
absolute bar
30. • Delay - not a ground for refusal
• As long as the person usurps public office
illegally- every day he acts in that office – a
fresh cause of action arises- till he is in office.
(B R Kapur v. State of Tamil Nadu)
• Disobeyal - of writ order leads to contempt of
court
• Quo warranto – seeks to protect public
interest- by preventing abuse of public office
by an usurper of such office
