In the pre- constitutional era the jurisdiction to issue the prerogative writs was enjoyed only by three chartered High Courts in India but with the coming into force of the Constitution, all the High Courts and the Supreme Court are conferred powers to issue those writs under Article 226 and Article 32, respectively, of the Constitution.
Writs Application regarding High Court
In regard to the writ jurisdiction, the High Courts in India are placed virtually in the same position as the Courts of King’s Bench in England. It is a well-settled principle that the technicalities associated with the prerogative writs in English Law have no role to play under our constitutional scheme. It is, however, important to note that a writ of certiorari to call for records and examine the same for passing appropriate orders, is issued by a superior court to an inferior court which certifies its records for examination.
“Certiorari lies to bring decisions of an inferior court, tribunal, public authority or any other body of persons before the High Court for review so that the court may determine whether they should be quashed, or to quash such decisions.
The order of prohibition is an order issuing out of the High Court and directed to an inferior court or tribunal or public authority which forbids that court or tribunal or authority to act in excess of its jurisdiction or contrary to law. Both certiorari and prohibition are employed for the control of inferior courts, tribunals and public authorities.”
In Rupa Ashok Hurra v. Ashok Hurra (2002), the Supreme Court held that, the very nature of writ jurisdiction, which is a supervisory jurisdiction over inferior Courts/Tribunals, on principle a writ of certiorari cannot be issued to co-ordinate courts and a fortiorari to superior courts.
Thus, it follows that a High Court cannot issue a writ to another High Court; nor can one Bench of a High Court issue a writ to a different Bench of the same High Court; much less can writ jurisdiction of a High Court be invoked to seek issuance of a writ of certiorari to the Supreme Court. Though, the judgments/orders of High Courts are liable to be corrected by the Supreme Court in its appellate jurisdiction under Articles 132, 133 and 134 as well as under Article 136 of the Constitution, the High Courts are not constituted as inferior courts in our constitutional scheme. Therefore, the Supreme Court would not issue a writ under Article 32 to a High Court.
Further, neither a smaller Bench nor a larger Bench of the Supreme Court can issue a writ under Article 32 of the Constitution to any other Bench of the Supreme Court. It is pointed out above that Article 32 can be invoked only for the purpose of enforcing the fundamental rights conferred in Part III and it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights enshrined in Part III. It may further be noted that the superior courts of justice do not also fall within the ambit of State or other authorities under Article 12 of the Constitution.
In Naresh Shridhar Mirajkar & Ors. vs. State of Maharashtra & Anr. [1966 (3) SCR 744], some journalists filed a Writ Petition in the Supreme Court under Article 32 of the Constitution challenging an oral order passed by the High Court of Bombay, on the Original Side, prohibiting publication of the statement of a witness given in open court, as being violative of Article 19(1)(a) of the Constitution of India. A Bench of nine learned Judges of Supreme Court considered the question whether the impugned order violated fundamental rights of the petitioners under Article 19(1)(a) and if so whether a writ under Article 32 of the Constitution would issue to the High Court. The Bench was unanimous on the point that an order passed by this Court was not amenable to the writ jurisdiction of this Court under Article 32 of the Constitution.
Eight of the learned Judges took the view that a judicial order cannot be said to contravene fundamental rights of the petitioners. Sarkar,J. was of the view that the Constitution does not contemplate the High Courts to be inferior courts so their decisions would not be liable to be quashed by a writ of certiorari issued by the Supreme Court and held that this Court had no power to issue a writ of certiorari to the High Court.
To the same effect are the views expressed by Shah and Bachawat, JJ. Though, in his dissenting judgment Hidayatullah,J. (as he then was) held that a judicial order of the High Court, if erroneous, could be corrected in an appeal under Article 136 of the Constitution, he, nonetheless, opined that the impugned order of the High Court committed breach of the fundamental right of freedom of speech and expression of the petitioners and could be quashed under Article 32 of the Constitution by issuing a writ of certiorari to the High Court as subordination of the High Court under the scheme of the Constitution was not only evident but also logical.
In regard to the apprehended consequences of his proposition, the learned Judge observed :
“It was suggested that the High Courts might issue writs to this Court and to other High Courts and one Judge or Bench in the High Court and the Supreme Court might issue a writ to another Judge or Bench in the same Court. This is an erroneous assumption. To begin with the High Courts cannot issue a writ to the Supreme Court because the writ goes down and not up. Similarly, a High Court cannot issue a writ to another High Court. The writ does not go to a court placed on an equal footing in the matter of jurisdiction. Where the county court exercised the powers of the High Court, the writ was held to be wrongly issued to it (See : In re The New Par Consols, Limited [1898 (1) Q.B. 669].”
In A.R.Antulay vs. R.S.Nayak & Anr. [1988 (2) SCC 602], the question debated before a seven-Judge Bench of the Court was whether the order dated February 16, 1984, passed by a Constitution Bench of this Court, withdrawing the cases pending against the appellant in the Court of Special Judge and transferring them to the High Court of Bombay with a request to the Chief Justice to assign them to a sitting Judge of the High Court for holding trial from day to day. [R.S.Nayak vs. A.R.Antulay (1984) 2 SCC 183 at 243], was a valid order. It is relevant to notice that in that case the said order was not brought under challenge in a petition under Article 32 of the Constitution. Indeed, the appellant’s attempt to challenge the aforementioned order of the Constitution Bench before this Court under Article 32 of the Constitution, turned out to be abortive on the view that the writ petition under Article 32, challenging the validity of the order and judgment passed by the Supreme Court as nullity or otherwise incorrect, could not be entertained and that he might approach the court with appropriate review petition or any other application which he might be entitled to file in law.
While so, in the course of the trial of those cases the appellant raised an objection in regard to the jurisdiction of the learned Judge of the High Court to try the cases against him. The learned Judge rejected the objection and framed charges against the appellant, which were challenged by him by filing a Special Leave Petition to appeal before this Court wherein the question of jurisdiction of the High Court to try the cases was also raised. It was numbered as Criminal Appeal No.468 of 1986 and was ultimately referred to a seven- Judge Bench. By majority of 5 : 2 the appeal was allowed and all proceedings in the cases against the appellant before the High Court pursuant to the said order of the Constitution Bench dated February 16, 1984, were set aside and quashed.
Mukharji, Oza and Natarajan, JJ. took the view that the earlier order of this Court dated February 16, 1984 which deprived the appellant of his constitutional rights, was contrary to the provisions of the Act of 1952 and was in violation of the principles of natural justice and in the background of the said Act was without any precedent and that the legal wrong should be corrected ex debito justitiae Ranganath Misra,J., with whom Ray,J., agreed, while concurring with the majority, observed that it was a duty of the Court to rectify the mistake by exercising inherent powers. Ranganathan,J. expressed his agreement with the view of the majority that the order was bad being in violation of Articles 14 and 21 of the Constitution.
However, he held that the said order was not one such order as to be recalled because it could not be said to be based on a view which was manifestly incorrect, palpably absurd or patently without jurisdiction. In that he agreed with Venkatachaliah,J. (as he then was) who gave a dissenting opinion. The learned Judge held that it would be wholly erroneous to characterise the directions issued by a five-Judge Bench as a nullity liable to be ignored and so declared in a collateral attack. However, five learned Judges were unanimous that the Court should act ex debito justitiae. On the question of power of the Supreme Court to review its earlier order under its inherent powers Mukharji, Oza and Natarajan,JJ. expressed the view that the Court could do so even in a petition under Articles 136 or Article 32 of the Constitution.
Ranganath Misra,J. gave a dissenting opinion holding that the appeal could not be treated as a review petition. Venkatachaliah,J. (as he then was) also gave a dissenting opinion that inherent powers of the Court do not confer or constitute a source of jurisdiction and they are to be exercised in aid of a jurisdiction that is already invested for correcting the decision under Article 137 read with Order XL Rule 1 of the Supreme Court Rules and for that purpose the case must go before the same Judges as far as practicable. On the question whether a writ of certiorari under Article 32 of the Constitution could be issued to correct an earlier order of this Court Mukharji and Natarajan,JJ. concluded that the powers of review could be exercised under either Article 136 or Article 32 if there had been deprivation of fundamental rights.
Ranganath Misra, J. (as he then was) opined that no writ of certiorari was permissible as the Benches of the Supreme Court are not subordinate to the larger Benches of this Court. To the same effect is the view expressed by Oza, Ray, Venkatachaliah and Ranganathan,JJ. Thus, in that case by majority of 5 : 2 it was held that an order of the Supreme Court was not amenable to correction by issuance of a writ of certiorari under Article 32 of the Constitution. In Smt. Triveniben vs. State of Gujarat [1989 (1) SCC 678], speaking for himself and other three learned Judges of the Constitution Bench, Oza, J., reiterating the same principle, observed:
“It is well settled now that a judgment of court can never be challenged under Articles 14 or 21 and therefore the judgment of the court awarding the sentence of death is not open to challenge as violating Article 14 or Article 21 as has been laid down by this Court in Naresh Shridhar Mirajkar vs. State of Maharashtra and also in A.R.Antulay vs. R.S.Nayak, the only jurisdiction which could be sought to be exercised by a prisoner for infringement of his rights can be to challenge the subsequent events after the final judicial verdict is pronounced and it is because of this that on the ground of long or inordinate delay a condemned prisoner could approach this Court and that is what has consistently been held by this Court.
But it will not be open to this Court in exercise of jurisdiction under Article 32 to go behind or to examine the final verdict reached by a competent court convicting and sentencing the condemned prisoner and even while considering the circumstances in order to reach a conclusion as to whether the inordinate delay coupled with subsequent circumstances could be held to be sufficient for coming to a conclusion that execution of the sentence of death will not be just and proper.”
Jagannatha Shetty,J. expressed no opinion on this aspect. We consider it inappropriate to burden this judgment with discussion of the decisions in other cases taking the same view. Suffice it to mention that various Benches of this Court reiterated the same principle in the following cases : [A.R.Antulay vs. R.S. Nayak & Anr. [1988 (2) SCC 602], Krishna Swami vs. Union of India & Ors. [1992 (4) SCC 605], Mohd.Aslam vs. Union of India [1996 (2) SCC 749], Khoday Distilleries Ltd. & Anr. vs. Registrar General, Supreme Court of India [1996 (3) SCC 114], Gurbachan Singh & Anr. vs. Union of India & Anr. [1996 (3) SCC 117], Babu Singh Bains & Ors. vs. Union of India & Ors. [1996 (6) SCC 565] and P.Ashokan vs. Union of India & Anr. [1998 (3) SCC 56]. It is, however, true that in Supreme Court Bar Association vs. Union of India & Anr. [1998 (4) SCC 409], a Constitution Bench and in M.S.Ahlwat vs. State of Haryana & Anr. [2000 (1) SCC 278] a three-Judge Bench, and in other cases different Benches quashed the earlier judgments/orders of this Court in an application filed under Article 32 of the Constitution.