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ARTICLE 226, 227 OF CONSTITUTION OF INDIA 1949

What is the Power of High Courts to issue certain writs? What is the Power of superintendence over all courts by the High Court? Article 226 and 227 of Constitution of India, 1949

Power of High Courts to issue certain writs, Power of superintendence over all courts by the High Court are defined under Article 226 and 227 of Constitution of India 1949. Provisions under this Article are:

Article 226 of Constitution of India "Power of High Courts to issue certain writs"

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

 

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action , wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without-

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or , as the case may be, the expiry of the aid next day, stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause (2) of Article 32.

Type of Writs

Habeas Corpus

Habeas Corpus literally means ‘to have the body of’. Via this writ, the court can cause any person who has been detained or imprisoned to be physically brought before the court. The court then examines the reason of his detention and if there is no legal justification of his detention, he can be set free. Such a writ can be issued in following example cases:

- When the person is detained and not produced before the magistrate within 24 hours

- When the person is arrested without any violation of a law.

- When a person is arrested under a law which is unconstitutional

- When detention is done to harm the person or is malafide.

Thus, Habeas corpus writ is called bulwark of individual liberty against arbitrary detention. A general rule of filing the petition is that a person whose right has been infringed must file a petition. But Habeas corpus is an exception and anybody on behalf of the detainee can file a petition. Habeas corpus writ is applicable to preventive detention also. This writ can be issued against both public authorities as well as individuals.

Mandamus

Mandamus means “we command”. This writ is a command issued by court to a public official, public body, corporation, inferior court, tribunal or government asking them to perform their duties which they have refused to perform. Due to this, Mandamus is called a “wakening call” and it awakes the sleeping authorities to perform their duty. Mandamus thus demands an activity and sets the authority in action. Mandamus cannot be issued against the following:

-a private individual or private body. -

-if the duty in question is discretionary and not mandatory. -

-against president or governors of state

-against a working chief justice

-to enforce some kind of private contract.

A petition for writ of mandamus can be filed by any person who seeks a legal duty to be performed by a person or a body. Such a filing person must have real or special interest in the subject matter and must have legal right to do so.

Prohibition

The writ of prohibition means that the Supreme Court and High Courts may prohibit the lower courts such as special tribunals, magistrates, commissions, and other judiciary officers who are doing something which exceeds to their jurisdiction or acting contrary to the rule of natural justice. For example if a judicial officer has personal interest in a case, it may hamper the decision and the course of natural justice.

Difference between Mandamus and Prohibition

-While Mandamus directs activity, Prohibition directs inactivity.

-While Mandamus can be issued against any public official, public body, corporation, inferior court, tribunal or government; prohibition can be issued only against judicial and quasi-judicial authorities and NOT against administrative authorities, legislative bodies

Certiorari

Certiorari means to “certify”. It’s a writ that orders to move a suit from an inferior court to superior court. It is issued by a higher court to a lower court or tribunal either to transfer a case pending with that to itself or squash its order. This is generally done because superior court believes that either the inferior court had no jurisdiction or committed an error of law. Thus, certiorari is a kind of curative writ.

Quo warranto

Quo warranto means “by what warrant”? This writ is issued to enquire into legality of the claim of a person or public office. It restrains the person or authority to act in an office which he / she is not entitled to; and thus stops usurpation of public office by anyone. This writ is applicable to the public offices only and not to private offices.

Article 227 of Constitution of India "Power of superintendence over all courts by the High Court"

(1) Every High Court shall have superintendence over all courts and tribunals throughout the territories interrelation to which it exercises jurisdiction.

(2) Without prejudice to the generality of the foregoing provisions, the High Court may -

(a) call for returns from such courts;

(b) make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and

(c) prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts.

(3) The High Court may also settle tables of fees to be allowed to the sheriff and all clerks and officers of such courts and to attorneys, advocates and pleaders practicing therein:

Provided that any rules made, forms prescribed or tables settled under clause (2) or clause (3) shall not be inconsistent with the provision of any law for the time being in force, and shall require the previous approval of the Governor.

(4) Nothing in this article shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.

Constitution of India 1949

What is the Power of High Courts to issue certain writs? What is the Power of superintendence over all courts by the High Court? Article 226 and 227 of Constitution of India, 1949

What is the Transfer of certain cases to High Court? What is the meaning Officers and servants and the expenses of High Courts? Article 228 and 229 of Constitution of India, 1949

What is the meaning Extension of jurisdiction of High Courts to Union territories? What is Establishment of a common High Court for two or more States? Article 230 and 231 of Constitution of India, 1949

What is the method of Appointment of district judges? What is Validation of appointments of, and judgments, etc., delivered by, certain district judges.- Notwithstanding any judgment, decree or order of any court? Article 233 and 233A of Constitution of India, 1949

What is the method of Recruitment of persons other than district judges to the judicial service? What is Control over subordinate courts? Article 234 and 235 of Constitution of India, 1949

What is Interpretation? What is the meaning Application of the provisions of this Chapter to certain class or classes of magistrates? Article 236 and 237 of Constitution of India, 1949

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