Writ Jurisdiction of the High Courts before the commencement of the Constitution

In this article, we will discuss the writ jurisdiction of the high courts before the commencement of the constitution. A writ is a quick remedy against injustice, a device for protection of the rights of citizens against any encroachment by the governmental authority.

In Britain, writs were the King’s or Queen’s prerogative writs and were commands to the judicial tribunals or other bodies to do or not to do something. Since writs carried the authority of the Crown they were to be obeyed. Later, writs came to be enjoyed by the judges of the king’s bench. By Regulating Act 1773, the judges of the Supreme Court were given the same powers and privileges as were enjoyed by judges of king’s bench. When in 1861, the Supreme Courts were abolished and the High Courts were established, the power to issue writs descended upon the judges of High Courts at Presidency towns. However, there was no mention in the High Courts Act, 1861 about writ jurisdiction of the High Courts.

It may be noted that during the period 1774-81, the Supreme Court made frequent use of habeas corpus to protect Indians in the diwani area from unauthorised and illegal confinement at the hands of revenue officers. ‘In the matter of Streenauth Roy’ (1840), servants of a Rajah carried off from his house in Calcutta a Hindu inhabitant of Calcutta. The Supreme Court issued habeas corpus against Rajah, on the ground that the Hindu inhabitant of Calcutta was entitled to the protection of the court, and as an offender within the limits of Calcutta, Rajah was amenable to its jurisdiction.

It is, however, doubtful whether the court issued any other writ than habeas corpus.

There was always a confusion about the power to issue writs and as to the jurisdiction of the courts to do so. The Supreme Court’s power to issue writs was confined to the territorial limits of the Presidency and beyond those limits the writ was issued only to a person who was otherwise subject to the jurisdiction of Supreme Court (e.g. Company’s subjects or British subjects).

The Presidency High Courts from the very beginning interpreted their power to issue writs outside the town limits. ‘In re National Carbon Co.’ (1935), the Calcutta High Court held that it had the power in its ordinary original civil jurisdiction to issue the writ of prohibition against the Controller of Patents and Designs. In the matter of Ameer Khan’ (1870), the Calcutta High Court held that it could issue habeas corpus in the mofussil to set free Indians detained illegally. In Mahabelshwarappa v Ram Chandra Row (1936), the Madras High Court issued certiorari to quash the decision of the Election Commissioner in the district board elections.

But how inhibited the power of the Presidency High Courts to issue writs was, and how helpless these were in this regard is best illustrated by the cases discussed below:

In Ryots of Garabandho v Zamindar of Parlakimedi (1943) P.C., the Privy Council held that even if the Board of Revenue had exceeded its powers in enhancing rent, the High Court had no jurisdiction to issue writ of certiorari. It said that the jurisdiction to issue writ did not depend upon the location of Board (the Board was situated within the Presidency town of Madras) but on the fact whether the subject-matter of dispute was such which fell within the jurisdiction of High Court. And since the High Court did not have the jurisdiction over revenue matter concerning parties and property situated in Ganjam district, it could not issue writ only because the Board was situated within Madras (the Ganjam district was outside the local limits of Madras).

The question whether the writ could be issued to British subjects or company’s servants outside the presidency limits on the ground that the Supreme Court had personal jurisdiction over such subjects or servants still remained open. The question was settled by the Privy Council in Hamid Hasan v Banwari Lal Roy (1947) P.C. In that case, the appellant, a Deputy magistrate, was appointed administrator of Howrah Municipality after superseding the Chairman and Commissioners of that municipality. The respondents applied for a writ of quo warranto in the High Court of Calcutta, which issued the writ. Appellant filed an appeal in the Privy Council on the ground that the High Court did not have jurisdiction to issue a writ to person in Howrah because Howrah was beyond the territorial limits of Calcutta Presidency. The Privy Council held that the High Courts had not inherited the personal jurisdiction of the Supreme Courts therefore they could not issue writ against a person unless he fell within the ordinary original civil jurisdiction of those courts. Howrah being outside the presidency limits of Calcutta was outside such jurisdiction of High Court and writ could not be issued simply because the appellant was a company’s servant.

Legislative provisions

Section 45 of the Specific Relief Act, 1877, provided that the writ of mandamus could be issued by High Courts of Presidency towns only within the local limits of their ordinary original civil jurisdiction to a public officer, corporation or an inferior court of justice.

Section 491 of Criminal Procedure Code, 1898, gave general powers to all High Courts to issue the writ of habeas corpus within the territorial limits of their original as well as appellate jurisdiction (It may be noted that other High Courts, then those at Presidency towns, not being the successor of any Supreme Court did not had any writ jurisdiction).

Thus, only the High Courts of Calcutta, Bombay and Madras had the power to issue all writs, viz. habeas corpus, mandamus, certiorari, prohibition and quo warranto. Further, the jurisdiction of High Courts to issue writs was limited to the territorial limits of their ordinary original civil jurisdiction and that too with respect to those matters which fell within that jurisdiction. The habeas corpus could be issued beyond Presidency towns also within their territorial jurisdiction.

Post-Constitution position

In 1950, the the Constitution of India gave equal powers to all the High Courts to issue the writs (Article 226). The power to issue writ is co-extensive with the territory of State over which the High Court has jurisdiction. By an amendment of Article 226, now the High Courts can issue writs to any governmental authority outside its territorial jurisdiction, provided the cause of action arises within their territorial jurisdiction.

Article 226 empowers each High Court to issue directions, orders or writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari for the enforcement of fundamental rights, or for any other purpose. The Constitution has vested in each High Court a very wide power to issue writs – even wider than the Courts in England. In addition to the five prerogative writs, High Court can issue directions and orders or even frame additional and new writs to meet any unprecedented situation.


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