History Writ Jurisdiction

What is Writ

Writ means a written document by which one is summoned or required to do or refrain from doing anything. Historically, Writ originated and developed in British legal system. As defined in Blackstone, Writ is a mandatory letter from the King-in-parliament, sealed with his great seal, and directed to the Sheriff of the country wherein the injury is committed or supposed so to be, requiring him to command the wrongdoer o party caused either to do justice to the complainant, or else to appear in court and answer the accusation against him.’
Initially Writs were royal prerogative Writs. They were called prerogative writs because they were conceived as being intimately connected with the rights of the crown. The King issued writs through the Kings’ bench or the Court of Chancery. Gradually as the governmental functions increased and the concept of rule of law emerged and the courts became independent, these writs came to be the prerogatives of the courts instead of the King and lastly they came to be the prerogatives o the people, for they are now guaranteed rights in the constitutions of many countries and citizens can invoke them as of rights.

Origin of the Writ system

To say about the origin of the writ, we must look at the English legal system first. Basically the origin and the gradual development of writ system is related to the English legal system. So we can start from the origin of writ system in England.
Origin of the writ system In England
The writ process was in its origin continental, but it gradually developed in English soil in the twelfth century. The writ of command of the king in writing to the Sheriff addressed to the defendant to appear in the court within the specific period of time. It appears that while all writs were commands issued in the name of the crown, only the writs which had a special relationship with the Crown, came to be known as “prerogative writs”. It was by this system that the Kings Court made Royal justice supreme over the justice administered in other courts. The prerogative writs’ were issued only when some cause was shown as distinguished from the original or judicial writs which were used for suits between party and party and which were issued as of course. All the prerogatives were not discretionary; some of them were issued as a writ of right.

Origin of the writ system In the Indian Subcontinent

With the expansion of its territorial acquisition in India, The East India Company also faced with the problem of administration of justice. In place of company’s Court, the charter of 24th September, 1726 established Kings Court for the first time of the history of the legal system of India. After that there established Mayor’s Courts, which were considered as the King’s Court. Consequently, in place of that court, Supreme Court of Bengal was established which was in fact the attempts to introduce the English ideas and principles in administration. Clause 21 of a royal charter, dated 26th March of 1774 authorized the Supreme Court of Calcutta to issue the prerogative writs of Mandamus, Certiorari, Procedendo and error.
The Indian High Court Act, 1861 empowered her majesty Queen Victoria to issue letters patent establishing High Courts in places of existing Supreme Court. The jurisdiction and powers of the High Court were provided under section 9 of the Act. These provisions reproduced with slight modification in section 106 of the Government of India Act, 1915 and later, the Government of India Act, 1935 gives the power to issue writs under the section 223, to be exercised in a limited manner to the three presidencies only.
Afterwards the constitution of the India adopted in 1949, has empowered the Supreme Court (article 32) and all the High Courts (article 226) of India to issue writs in the nature of habeas corpus, mandamus, prohibition, quo-warranto, and certiorari. Accordingly the constitution of 1956 of Pakistan gave the power to issue writs both the Supreme Court (under article 22) and High Court (under article 170) with the specific name. But in the 1962’s constitution of the Pakistan, Writ jurisdiction was given to the only High Courts under article 98 with no particular name at all in words.

Five types of Writ

Writ of “Habeas Corpus”

The word “Habeas Corpus” means, have the body before the court. So it is a kind of order of the court that commands the authorities holding an individual in custody to bring that person into court. The authorities must then explain in the court why the person is being held. The court can order the release of the individual if the explanation is unsatisfactory. Does the right of “Habeas Corpus” is a process for securing the personal liberty of the subjects by affording an effective means of immediate release from unlawful or unjustifiable detention, whether in prison or in private custody. This right is the most important weapon forged by the ingenuinity of man to secure the liberty of the individual. There is no judicial process more familiar or important than this.

Writ of “Mandamus”

Literally the term “Mandamus” means we command’ and reminds one of the times when the King of England as the autocratic head of a vast administrative system had occasion to Mandamus his subjects many times in the courts of the day.’ In Halsbury’s laws of England “Mandamus” is described as-
The order of mandamus is an order of a most expensive remedial nature, and is in form, a command issuing from the High Court of Justice directed to any person, corporation or inferior tribunal, requiring him r them to do some particular thing therein specified which appertaining to his or their office and is in the nature of public duty.
Thus it can be said that, when a court or tribunal or an authority or a person has refused or failed to perform his statutory obligation, it is the Writ of “Mandamus” by which the higher court can compel the authority or court or person to do his statutory obligation. So “Mandamus” is a positive remedy.

Writ of “Prohibition”

Prohibition is an original writ, as old as the common law itself. Originally the primary purpose of prohibition was to limit the jurisdiction of the ecclesiastical courts. Prohibition as a writ means, one which prevents a tribunal possessing judicial or quasi-judicial powers from exercising jurisdictions over matters not within its cognizance. Thus prohibition is originally a judicial writ since it can be used against a judicial or quasi-judicial body and not against an administrative body or public corporation or body. But no longer has it remained limited to be used only against judicial or quasi judicial body.
Therefore, it may be said that when a court, or a tribunal, or an authority or a person is about to violate the principles of natural justice, or is about to abuse the power or is about to act in excess of its jurisdiction, the Higher court by issuing a writ of prohibition can prohibit the tribunal, court or authority from doing such act. So prohibition is a preventive remedy.

Writ of “Certiorari”

The term certiorari’ means to be certified’ or to be more fully informed of’. The writ of certiorari’ is so named because in its original form. It required the King should be certified’ of the proceedings to be investigated. This writ was drawn up for the purpose of enabling the court of King’s Bench to control the action of inferior courts and to make it certain that they should not exceed their jurisdiction; and there for, the writ of certiorari is intended to bring into the High Court the decision of inferior tribunal, in order that the HCD may be certified whether the decision is within the jurisdiction of the inferior courts.
Initially at common law in England certiorari’ used to be used either from the King’s Bench or the chancery for the purpose of exercising superintending control over inferior courts. So certiorari’ was necessarily a judicial writ at initial stage. But gradually, the jurisdiction was enlarged to include within its fold all authorities performing judicial, quasi-judicial and even administrative functions. Thus certiorari’ is no longer a judicial writ. So it can be said that when a court or a tribunal or an authority or a person has already violated the principle natural justice, or misused the power or acted in excess of its jurisdiction, the Higher court by issuing certiorari quash that act i.e. can declare that act illegal. So it is a prerogative writ whereby the higher court restrict the lower courts from exceeding their functions as prescribed by the law.

Difference between certiorari’ and prohibition’

1. The grounds of both the writs are same but the distinction lies in that prohibition is a preventive remedy while certiorari is a curative or corrective remedy. Thus prohibition applies where the authority is about to misuse the power whereas certiorari applies where the authority has already abused the power.
2. A writ of certiorari will be issued when the proceeding is closed, while an order of prohibition can be issued only so long as the proceeding remains pending. It can not be issued after the authority has ceased to exist.
3. Prohibition is issued with a view to stop an act at its starting whereas certiorari is to quash or declare the act illegal.
Writ of quo-warranto’
The term “quo-warranto” means by what warrant or authority.’ Quo-warranto is a writ by which any person who occupies or usurps an independent substantive public office or franchise or liberty, is asked to show by what right he claims it, so that the title to the office, franchise or liberty may be settled and unauthorized occupants ousted by judicial order. More precisely, it can be said that, when a person illegally holds a public office created by law the Higher Court, on the application of any person, can, by issuing quo-warranto, ask the person to show on what authority he holds the office and can make him not to hold such office further.

Available against whom

Writ of certiorari, mandamus, and prohibition lie against any person’ performing functions in connection with the affairs of the Republic or of a local authority and not against a private individual or body. Thus the person must be a public functionary. A Writ petition will not lie even against a public functionary in respect of functions performed not in connection with the affairs of the Republic or a local authority. Writ of habeas corpus lies against any person, be he a public functionary or private persons, while quo-warranto lies against a person holding or purporting to hold a public office.
The Writs are in fact a great weapon of the citizens to ensure the safeguard their fundamental rights.

Writ jurisdiction, PIL’, and the aggrieved person

Of the five Writs two can be invoked by any person according to the provisions of article 102 of the constitution. These are writs of habeas corpus and quo-warranto. But the other three can be invoked by an aggrieved person’. It is important to mention here that in one sense these three writs are most important. Because most of the public authorities, bodies and officials frequently violating the law and act in excess of jurisdiction causing repeated sufferings to the people and giving rise to huge grounds of application for these three writs. But it is unfortunate that anyone can not apply for these due to the following two barricades:
Firstly, writ power of the HCD is not any discretionary power. As a result, it can not issue writs suo-moto against any public bodies.
Secondly, any person can not apply for, only the aggrieved person’ has locus standi or right to sue.
A person is said to have the right to sue when he is aggrieved by action or inaction of a servant of official or authority. A person will said to be aggrieved when,
1. He has suffered a legal injury by reason of violation of his legal right or interest. And,
2. He has shown that he has a direct personal interest in the act which he challenges.
If these two conditions are not fulfilled, the HCD will not allow a writ petition. This is why in Bangladesh it is not possible to file Public Interest Litigation (PIL).PIL means litigation in the interest of public and not in the interest of the litigant himself. PIL is a concept of recent origin evolved by the Indian Supreme Court on the plinth of equal justice by giving liberal interpretation to the long standing rigid concept of locus standi. The Court has devised this new tool for mitigating the sufferings of the poor people. It is a device in the way of constitutional promise of social and economic transformation to usher in an egalitarian social order and a welfare state.