The Meaning and Origin of Prerogative writs in England
According to Halsbury “The common regards the King as the source of fountain of justice and certain ancient remedial processes of an extra-ordinary nature which are known as prerogative writs, have from the earliest time issued for the Court of King’s Bench in which the Sovereign was always in contemplation of law. The prerogative writs were issued only upon cause shown, as distinguished from the original or judicial writs which commence suits between party and party and which issue as a course. The court of King’s Bench retained all the jurisdiction of the Curia Regis in so far as it was not distributed among the courts and this jurisdiction, including the granting of the prerogative remedies is now under the Supreme Court of Judicature (Consolidation) Act,1925……………is vested in the High Court of Justice.”
History of the Prerogative writs in British India
The provision for the issue of the prerogative writs was made for the first time by the Regulating Act of 1773 and has been henceforth continuing. The writ jurisdiction in India may be studied under two headings-
1. History of writ jurisdiction in India before, 1950 –
(i) Supreme Court of Judicature at Calcutta – The Supreme Court of Calcutta was vested with the power to issue prerogative writs. The clause 4 of the Charter of 1774 provided in this connection – “And it is our further will that the paid Chief Justice…………. to have such jurisdiction and authority as our Justices of our Court of King’s Bench have and may lawfully exercise within that part of Great Britain called England by the Common law thereof.” Clause 21 of the same Charter further provided that the Court of Requests and the Court of Quarter Sessions established at Fort William and the Justices. Sheriffs and Magistrates appointed for the said districts were made subject to the order and control of the Supreme Court in such short manner and form as the inferior Courts and. Magistrate of and in England were by law, subject to the order and control of the Court of King’s Bench and to that end the Supreme Court was empowered to issue writ of Mandamus, Certiorari, Proçedendo or Error to be directed to such Court or Magistrates.” This power was given to the Supreme Court so that it could effectively control the subordinate courts and authorities of the Company engaged in the administration of justice in Bengal, Bihar and Orissa.
(ii) Under High Court Act, 1861 – S. 9 of the High Court Act provided that the High Courts shall have and exercise all jurisdiction and every power and authority whatsoever in any manner vested in any of the Courts in the same Presidency abolished under this Act at the time of the abolition of such last mentioned Courts. By virtue of this the High Courts established at the towns of Calcutta, Bombay and Madras inherited the powers of the defunct Supreme Courts to issue the writs of Mandamus, Certiorari, Habeas Corpus, etc. The Government of India Act, 1915 and the Government of India Act, 1935 also reproduced the same provision regarding the powers the High Courts to issue various writs. However, the power to issue the writs of Mandamus and Habeas
Corpus was taken away by the legislative enactments. In the place of such power the three Presidency High Courts were allowed to issue orders under S. 45 of the Specific Relief Act and S. 491 of the Criminal Procedure Code, respectively. As such the High Courts of three Presidency. Towns continued to enjoy the powers to issue the Common Law writs of Certiorari, Prohibition and Quo Warranto and their powers in this respect were not abolished by legislative enactments.
2. History of writ jurisdiction in India after, 1950 – Under a democratic set up, the declaration of fundamental rights is meaningless unless there is an effective machinery for the enforcement of the rights. It is in the fitness of things that our Constitution makers made provisions for an effective remedy of writs under Articles 32 and 226 of the Constitution for the enforcement of these rights-
(i) The Supreme Court-CI. 2 of Art. 32 of the Constitution of India empowers the Supreme Court to issue directions or orders or writs including, writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certioari, which so ever may be appropriate for the enforcement of any of the fundamental rights guaranteed by Part III of the Constitution. Clause 1. of the same Article provided that the right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental rights is guaranteed for no other purpose whatsoever it may be. The powers to issue the writs are a discretionary power of the Supreme Court.
(ii) The High Court-C1. 1. of Art. 226, of the Constitution of India empowers every High Court in India to issue to any person or authority including in appropriate cases any Government, within the territories in relation to which it exercises jurisdiction, directions, order or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari or any of them for the enforcement of any of the fundamental rights, and for certain other purposes. The power is also vested in the Supreme Court. The power of the High Court to issue writs, etc. is wider than that of the Supreme Court. As the High Court is entitled to issue writs, orders or directions for certain other purposes also besides enforcement of fundamental rights,
Under Art. 226 of the Constitution the High Court may issue a writ only after ascertaining that the aggrieved party has a fundamental right which has been infringed or only after a finding that the aggrieved party has a legal right entitling him to any of the writs which has been infringed.
Q:- Trace briefly the history of writ jurisdiction in India.
Q:- What do you understand by prerogative writs ? Describe the history of their starting and issuing in India.