ARTICLE 226 OF INDIAN CONSTITUTION

Article 226 of Indian Constitution With Explanation and Notes

Article 226 of Indian Constitution provides that every High Court shall have power, throughout the territorial limits in relation to which it exercises jurisdiction to issue to any person or authority including the appropriate cases, any Government, within those territories directions, orders of writs, including writs in the nature of habeas corpus, mandamus, prohibition, qua warranto and certiorari or any of them-

  • for the enforcement of fundamental rights conferred by Constitution, and
  • for any other purpose

The writs mentioned in Article 226 of Indian Constitution are known as prerogative writs because they had their origin in the prerogative power of superintendence over its officers and subordinate courts.

Who can apply-The traditional rule is that a person whose constitutional or legal right is infringed can apply for relief under “Article 226 of Indian Constitution”. But the Supreme Court has now considerably liberalised the above rule of locus standi.

The Court now permits the public spirited persons to file a writ petition for the enforcement of constitutional and statutory rights of any other person or a class, if that person or a class is unable to invoke the jurisdiction of the High Court due to poverty or any social and economic disability.

Writ of Habeas Corpus

Habeas Corpus” is a Latin term which literally means “you may have the body”.The writ is issued in form of an order calling upon a person by whom another person is detained to bring that person before the Court and to let the Court know by what authority he has detained that person.

 If the cause shown discloses that detained person has been detained illegally the Court will order that he be released.

Thus the main object of the writ is to give quick and immediate remedy to a person who is unlawfully detained by the person whether in prison or private custody.

Who can apply for the writ of Habeas Corpus under article 226 of Indian constitution-The general rule is that an application can be made by a person who is illegally detained. But in certain cases, an application of habeas corpus can be made by any person on behalf of the prisoner, i.e., a friend or a relation.

Technicalities and legal necessities-Technicalities and legal necessities are no impediments to the Court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found.

Prohibition and certiorari-Distinguished

The writ of habeas corpus cannot only be used for releasing a person illegally detained but it will be also used for protecting him from treatment inside jails. The dynamic role of judicial remedies after Batra’s case imparts to the habeas corpus writ a versatile vitality and operational utility that makes the healing presence of the law live up to its reputation as bastion of liberty even within jails declared Krishna Iyer, J.

When it will lie.–The “writ of habeas corpus” will lie if the power of detention vested in an authority was exercised mala fide and is made in collateral or ulterior purposes. But if the detention is justified the High Court will not grant the writ of habeas corpus. If the following conditions are satisfied the detention is illegal:

  • If the detention is made in accordance with the procedure established by law. The law must be valid law and the procedure must be strictly followed. (Art. 21)
  • The detention is lawful if the condition laid down in Article 22 are complied with.

Writ of Mandamus under Article 226 of Indian Constitution

The word mandamus means “the order”. The “writ of mandamus” is thus an order application for issue by a court commanding a person or a public authority ( including the government and public corporation) to do or forbear to do something in the nature of public duty or in certain cases of a statutory duty.

For instance, a licensing officer is under a duty to issue a licence to an applicant who fulfils all the conditions laid down for the issue of such licence. But despite the fulfilment of such conditions if the officer or the authority concerned refuses or fails to issue the licence the aggrieved person has a right to seek the remedy with the help of article 226 of Indian Constitution – a writ of mandamus.

Article 226

When it will lie.-The writ or order in the nature of mandamus would be issued when there is a failure to perform a mandatory duty. But even in cases of alleged breaches of mandatory duty the party must show that he has made a distinct demand to enforce that duty and the demand was met with refusal.

The writ of mandamus can only be granted when there is in the applicant a right to compel the performance of some duty cast upon the authority. The duty sought to be enforced must be a public duty, that is, duty cast by law. A private right cannot be enforced by the writ of mandamus.

Article 226 of Indian Constitution issue writ of mandamus to public authority to restrain it from acting under a law which has been declared unconstitutional.

The writ of mandamus can be granted only in cases where there is a statutory duty imposed upon the officer concerned, and there is a failure on the part of that officer to discharge the statutory obligation. 

Writ of Certiorari

The High Courts have the power to issue a writ of mandamus where the government or a public authority has failed to exercise or has wrongly exercised the discretion conferred upon it by a statute or a rule or a policy decision of the Government or has exercised such discretion mala fide or on irrelevant considerations or by ignoring the relevant considerations and materials or in such a manner as to frustrate the object of conferring such discretion of the policy for implementing such discretion.

Writ of Prohibition

A writ of prohibition is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction, or acting contrary to the rules of natural justice. It is issued by a Superior Court to inferior courts for the purpose of preventing inferior Courts from usurping a jurisdiction with which it was not legally vested, or in other words to compel inferior courts to keep within the limits of their jurisdiction.

Thus the writ is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction.

Writ of Certiorari Under Article 226 of Indian Constitution

A writ of certiorari is issued by a Superior Court (Supreme Court and High Courts) to an inferior court or body exercising judicial or quasi-judicial functions to remove a suit from such inferior court or body and adjudicate upon the validity of the proceedings or body exercising judicial or quasi-judicial functions.

 It may be used before the trial to prevent an excess or abuse of jurisdiction and remove the case for trial to higher Court. It is invoked also after trial to quash an order which has been made without jurisdiction or in violation of the rules of natural justice.

Speaking on the scope of the writ the Supreme Court in the Province of Bombay v. Khushaldas,held that, whenever any body of persons having legal authority to determine questions affecting the rights of subject and having the duty to act judicially, acts in excess of their legal authority a writ of certiorari lies. It does not lie to remove merely ministerial act or to remove oh cancel executive administrative acts.

Prohibition and certiorari-Distinguished

Prohibition has much in common with certiorari. Both the writs are issued with the object of restraining the inferior courts from exceeding their jurisdiction. The difference between the two writs was explained by the Supreme Court in the following words :

“When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the Supreme Court for a writ of prohibition and on that an order will issue forbidding the inferior court from continuing the proceedings. On the other hand, if the court hears the cause or matter and gives a decision, the party aggrieved would have to move the Supreme Court for a writ of certiorari on that an order will be made quashing the decision on the ground of jurisdiction.”

Writ of Habeas Corpus

Grounds on which writ can be issued.–The writ of certiorari is issued to a at or quasi-judicial body on the following grounds :

  • Where there is want of excess of jurisdiction;
  • Where there is error of law apparent on the face of the record but not error of a fact;
  • Where there is violation of procedure or disregards of principles of natural justice.

In exercise of writ of certiorari– The High Court not to assume the role of Appellate Court.-In exercising the writ of certiorari, the High Court cannot assume the role of the appellate Court. The High Court can interfere if in recording the fmding the Tribunal/Court erroneously refused to admit the admissible evidence or had erroneously admitted any inadmissible evidence which-has influenced the impugned finding. A finding of fact recorded on no evidence is regarded as an error of law which can be corrected by a writ of certiorari.

When it will not lie-The writ of certiorari cannot be issued against a private body. Co-operative Electricity Supply Society Limited incorporated under the Cooperative Societies Act, is a private body and not a public body discharging public function and the writ-petition is, therefore, not maintainable against such a private society.

Writ of Quo warranto Under Article 226 of Indian Constitution

The words ‘quo warranto’ means ‘what is your authority’. By this writ a holder of an office is called upon to show to the court under what authority he holds the office.

The object of the writ of quo warranto is to prevent a person to hold an office which he is not legally entitled to hold. If the inquiry leads to the finding that the holder of the office has no valid title to it, the Court may pass an order preventing the holder to continue in office and may also declare the office vacant.

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If the holder of a public office was initially disqualified to hold that office, the writ of qua warranto would not be issued if at a subsequent stage that disqualification was removed and after the removal of the disqualification the incumbent concerned could have been appointed on the same post,

The doctrine is that in cases where the initial disqualification is removed it would be open to the authorities concerned to appoint the same person immediately even if the court grants the writ of qua warranto as desired by the petitioner. The general principle is that the court would not pass any decree which becomes futile.

writ of Mandamus

Who can apply – A writ of qua warranto can be claimed by a person if he satisfies the Court that :

  • the office in question is a public office; and
  • it is held by a person without legal authority

The writ of qua warranto is not issued in respect of an office of a private character. Thus in Jamalpur Arya Samaj Sabha v. Dr. D. Ram, the High Court refused to issue a writ of qua warranto against the members of the working committee of the Bihar Arya Samaj Sabha, a private association.

A citizen can claim a writ of qua-warranto and he stands in the position of a relater. He need not have any special interest or personal interest? The real test is to see whether the person holding the office is authorised to hold the same as per law.

Qua warranto not issued as a matter of course– A writ of “qua warranto” is never issued as a matter of course and it is always within the discretion of the Court to decide after having considered the facts and circumstances of each case, whether the petitioner concerned is the person who could be entrusted with such a writ which is always issued only in the interest of the public in general. 

The Court may refuse to grant a writ of qua warranto if it is vexatious or where the petitioner is guilty of laches, or where he has acquiesced or concurred in the very act against which he compiains or where the motive of the petitioner is suspicious.

Thus where the holder of an office has been continuing in office for a long time and there is no complaint against him the Court refused the writ as it would have been vexatious.

Scope of Article 226 of Indian Constitution
Writ of Prohibition

Speaking on the scope of this power of the High Court in T. C. Basappa v. Nagappa, the Supreme Court held that Article 226 of Indian Constitutionis couched in comprehensive phraseology and it confers a wide power on the High Courts to remedy injustice wherever it is found. The Constitution has purposely used wide language in describing the nature of the power, the purpose for which and the person or authority against whom It can be exercised. It can issue writs in the nature of prerogative writs as understood in England; but the scope of writs is widened by the use of the expression “nature” of habeaus corpus, mandamus, prohibition and qua warranto and certiorari, or any of them, for the enforcement of the rights conferred by Part III and for any other purpose. The expression does not equate the writs that can be issued in India with those in England but only draws analogy from them. Apart from that. High Courts can also issue directions, orders or writs other than the prerogative writs. Thus Article 226 of Indian Constitutionenables the High Courts to mould the reliefs to meet the peculiar and complicated requirement of this country.

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BIBLIOGRAPHY- Dr J.N Pandey – Constitution of India

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