Under the constitution of India. There are two sources of root jurisdiction. The first is article 32 and the second is article 226 in part 3 of The Constitution that is the part on fundamental rights according to article 32 + 1 the right to move the Supreme Court by appropriate proceedings for the enforcement of the right conferred by that part is guaranteed close to the Supreme Court shall have power to issue directions orders rates including rates in the nature of habeas corpus mandamus prohibition over onto and surgery whichever may be appropriate for the enforcement of any of the right conferred by that part.
he right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution, which is found in part 6 of The Constitution. That is the part on the steps under chapter 5 titled the high courts in the states. According to article 226 Clause 1 notwithstanding anything in article 32 every High Court shall have pause throughout the territories in relation to which it exercises jurisdiction to issue due to any person or authority including inappropriate cases any government within those directions orders or Rich including rates in the nature of habeas corpus mandamus prohibitions Cougar Run to answer Sherry or any of them for the enforcement of any of the right conferred by part 3.
And for any other purpose close to the park and Ferb. Claus one to issue directions orders or Rich to any government Authority open may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action only or in part arises for the exercise outside Spa notwithstanding and the seat of such government or authority of the residents of such person is not within those that it is.
I’d be able to see major points of distinction between article 32 an article 226 are a parent first article 32 jurisdiction to the Supreme Court what article 26 Grands jurisdiction to high Court’s Jurisdiction under our jurisdiction under article 226 is for the enforcement of fundamental rights, and any other purpose, of course, any other purpose does not include a situation when no legal right to exist.
Thirdly the right to approach the Supreme Court and the article 32 is itself a fundamental right while the right to approach the high Court’s is only a constitutional right? Not a fundamental right to state that the court can issue directions orders or drinks including rates in the nature of habeas corpus mandamus probation and Surgery Institute real or what originated as special powers of the crown in England acting to the government, which was subsequently exercise by the Judiciary.
The perogative rips also included the rate of procedendo, which is not mentioned in the Constitution.
Of course, it is difficult to Fathom what these terms mean if one hasn’t encountered them earlier. Let us take a look at these Concepts. We will look at 2 questions. Why do article 32 an article 226 refer to directions orders or raped and secondly in substance, what are the Prerogative lyrics?
In general terms is a written judicial order to perform a specified act or giving authority to heaven.
Then why would the constituent assembly choose to use birth rates and orders in article 32 an article 226 while adding the word directions in the mixer. The reason is historically this is important at common law in extraordinary circumstances during British rule in India Supreme Court’s of Calcutta Madras. And Bombay has been granted the power to issue perogative within their respective territories of those cities or towns as they may have been at the time.
In 1861 the Supreme Court was succeeded by the respective High courts of those cities which inherited the power to issue perogative rates.
Subsequently before the beginning of the twentieth century the power of the high court to issue common law writ of habeas corpus and mandamus was taken away by Statute.
Instead they were given the power to issue directions in the nature of habeas corpus and mandamus respectively.
Even in England the common law writs of certiorari prohibition and mandamus were replaced by Statute with orders of surgery rotation and mandamus.
These changes in terminology were only formal and did not affect the substantive law as a result when the constituent assembly drafted article 32 an article 226 included all the three words directions orders and Reps.
This brings us to the second question in substance. What are the groups?
Habeas corpus in Latin means you have the body imagine that a person has been illegally by a police officer or produce him or her before the court within the time prescribed by law that person with someone else on their behalf me approach the court to seek a writ of habeas corpus against the police.
The court will then issue a writ of habeas corpus to the police, which means that that person must be produced before the court and the court will decide whether detention is Justified.
As you may imagine the writ of habeas corpus is of immense significance as a check on the views of executive buzz in the case of political prisoners for instance has gone so far as to say that it is the most renowned contribution of the English common law to the protection of human Liberty.
The next week we will examine is mandamus which in Latin means we commanded issues a writ of mandamus. It commands the performance of a specific act like a particular person has a legal duty to perform that specific act. For instance. If a candidate in an entrance examination has sufficiently high marks and satisfies all the other eligibility criteria and the university refuses to admit her petition the court May issue a writ of mandamus at the University must admit that.
They just don’t understand the rate of probation. If an inferior Court exercise has jurisdiction, which it does not have then upon a reputation as Superior Court. What is a high court or the Supreme Court can prohibit the inferior Court from proceeding with the case. Next. We look at the writ of quo warranto, which is the Latin phrase that roughly translates to buy what warrant or by what Authority if a person say eggs purpose to exercise a particular Authority or hold particular official position another person say why why is the Writ petition stating their eggs does not legally have the right to exercise that Authority or gold at official position the court May issue a writ of quo warranto asking ex to justify or explain how he or she claims to legally have that Authority or hold the official position.
This rate is often relevant in the case of appointments to administrative positions. For instance the office of The Advocate General of a state or membership of a municipal board among others.
V bit under the bridge referred to in article 32 and article 226 is certiorari translate from the Latin to be informed of is it issued by a higher court at is the Supreme Court or high court to a lower court or authority calling for the records of a case before that authority to be produced before the high court will then examine whether there are any irregularities in the proceedings including the orders pass for the local Authority which intervention?
Finally, they just look at the rate of procedendo which literally translates from the Latin to proceeding this refers to a higher Court directing a lower court order to proceed with a particular case where the lower court proceedings having unjustifiably delayed in a sentence.
Although president does not find mentioned in the Constitution Indian courts are known to passage orders all weight without using the term procedendo alone was not mentioned in the constitution is beyond the scope of this unit.
A quick look at which procedure would not be out of place unlike civil cases whose procedure is governed by the code of civil procedure in 1908 or criminal cases whose procedure is governed by the code of criminal procedure 1973 a comprehensive statute resource of law to govern rate procedure for petition under article 32. The place to look is order 38 of the Supreme Court rule 2013, which is in part 3 title original jurisdiction subpart B, title petitions under article 32 of the Constitution have their own rules and procedure for instance chapter 4 title special procedure found in volume v of the Delhi high court rules is applicable to read petitions in that jurisdiction.
You should find out more about the relevant rules for the court before which you practice.
It would be remiss not to mention public interest litigation specifically, which is also known as bi a hypothetical scenario to introduce you to pil procedure.
Item one in the matter of prisoners right in the central J.
Who is for the state? You don’t know this is a matter in which the court has decided to take tsumoto action, which is why there is no one for the petitioner. Please see the news report. Can you please play some geetha Sharma street from central jail yesterday. He’s been able to speak but manages a small somehow office weed from a year ago when he went to prison because the authorities would deliberately so rotten food to the Prisoners the toilet in the prison for Philly and stray animals loiter around the prison cells because that means he did not have to use the toilet is up, please.
Is this true your honor it is a news report. So what is it true is the central jail actually run like this.
I sincerely hope that this is not the case. I will seek instructions from the appropriate authorities on the basis of the news report. We will sue motor dim this to be a public interest litigation. We will list the matter after 1 week. Please take down on the basis of the news report titled such-and-such dated someone so published in such-and-such newspaper and an exercise of its powers on the article 226 of the Constitution. This court has decided to swarm Moto dim the skates to be a public interest litigation to be numbered s p i l number so-and-so counsel appearing for the state acceptance notice and seeks time to obtain instructions list again after 1 week.
As you can see public interest litigation cause exception to the normal procedure of law. The first kind of public interest litigation is when the court SWTOR at his own motion takes action on the basis of a news report for instance.
item to on a letter by the journalist, Sangeeta Sharma
Your honor I have sent a letter about the conditions of prisoners in the central jail to the Chief Justice urging the court to consider that letter as a petition for public interest litigation. It seems to be a coincidence.
Wasn’t this journalist report? That was the basis for the pil in item 1?
Yes your honor at the time I sent the letter. I did not know that this court could take Sumo to action in the same case.
Oh, well, it looks like I directed this matter to be listed today on the basis of you all day and my brother Josh directed. I don’t want to be on the list on the basis of your newspaper.The more the merrier I suppose in a good cause of course.I’m grateful your honor.
I presume you will accept notice in this item as well.
Guided by its powers to exercise epistolary do restriction under article 226 in matters of public interest the goat treats the letter dated someone stole sent to this court by Miss Sangeeta Sharma journalists as a pir2 be numbered as pil number so-and-so.
London Council for the state acceptance noticebad this matter what item one and listed after one week.This is the second type of public interest litigation where the court considers a letter representation made to it as the basis for PIAA. This is also known as exercise of epistolary jurisdiction based on the word epistle which in general terms means a letter.item 311 Kumar vs state
Your honor I do not know how to put this this is the Writ petition in his individual capacity filed by Mohan Kumar who was subjected to gross abuse in prison leading to severe deterioration in his head. He is seeking a direction that the state should cover his medical expenses to assist with his recuperation. Yes your honour which is why I said I do not know how to put this the news report which the court red and I do number one refer to one Mohan Kumar this repetition has been filed by that very morning, What are the odds?
We will issue notice. Of course, please take that in exercise of our powers on the article 226. We will treat this as a petition for public interest litigation.
London Council for the state of steps notice after one week.
That was the third type of public interest litigation petition filed in the normal course may be considered by the court to raise important issues of public interest in general and it would then be converted to a public interest litigation.
Item for Association business well-being vs. State Farm. Let me guess improving the conditions of prisoners in Central Jail.You don’t know me not trouble himself. I will accept notice rules for filing petitions in public interest litigation being followed. Yes your honor.In that case. I know I know London Council for the state notice that this matter will either one and list of the one week.Well, you guessed it right that was The Fourth Kind of public interest litigation, which can be filed by any person according to the rules for filing pil as prescribed by the court rules immoralist standardized across India, but you should look up the specific source of those rules in your jurisdiction.What an unusual items 124 would deliberately listed in succession as part of an introductory session on public interest litigation.
Before we move on from the content of the Prerogative lyrics you should make a note of article 227 an article 228 of the Constitution as well Baruch superintendence over all chords by the high court close one says every High Court Charlotte superintendence overall courts and tribunals throughout the day. It is in relation to which it exercises jurisdiction are not relevant for the moment clothes for says nothing in this article shall be deemed to confer on a hike or bars of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces.
Article 228 is title transfer of certain cases to high court. It states that if the high court is satisfied that a case pending in a quart subordinate to it involves a substantial question of law as to the interpretation of the Constitution the determination of which is necessary for the disposal of the case it shall withdraw the case and me a I dispose of the case itself or be determined the said question of Law and return the case with the cord from which the case has been so been drawn together with a copy of it attachment on stage question and the said code shallon receipt thereof proceed to dispose of the case in Conformity with that statement.
Therefore under article 227 an article to 28 ridgepole outside with Judas diction under article 226 high court has the authority to pass orders which may have similar practical effects as rates of provision. Surgery Oprah’s and Endo. This is why it is advisable sometimes to stay that the petition is being filed under article 226 as well as article to 2702 28th Ave. The case may be as in teary such a thing would enable invocation of the path of the high court Beyond a petition under article 226 alone.
You may wonder why it was felt necessary to mention prerogative writ expressly in the Constitution.
In theory the power to issue writs generally would include the power to issue the prerogative red specifically.Justifying this in the constituent assembly debates. Dr. VI have been in existence in Great Britain for a number of years, then nature and identities that they provided unknown to every lawyer and consequently. We thought that as it is impossible even for a man who has the most fertile imagination to invent something new. It was hardly possible to improve upon the ribs, which have been in existence for probably thousands of years and which have given complete satisfaction to every Englishman with regard to the protection of his freedom.
we therefore thought that the situation such as the one which existed in the English jurisprudence, which contain these rates and which if I may say so have been found to be the proof and foolproof ought to be mentioned by their name in the Constitution without prejudice to the right of the Supreme Court to do justice in some other way if it felt it was desirable to do so that brings us to the end of the first unit on route to the section where we have understood the theory and constitutional framework. That governs it.
From a purely technical point it is arguable at the phrase rate jurisdiction is a misnomer in the sense that such jurisdiction includes the power to issue orders and directions as well.Wine that is of little substantive relevance. The next unit will examine the exercise of root jurisdiction in practice in addition to the theoretical aspects. How courts have jurisdiction is a fat most important to a litigator after all in a lighter vein. Justice must not only be seen to be done has to be seen to be believed. Thanks for watching.
Passionate about using the law to make a difference in people’s lives. An Advocate by profession.
