History of the Writs in India
By: Robin Pandey Date: 28/February/2022
These writs were the prerogative of the King in England and later come to be enjoyed by the judges of the King's Bench. When the Regulating Act 1773 was passed, the judges of the Supreme Court were given the same powers and privileges as were enjoyed by the judges of the King's Bench. Later the same privileges were conferred on the judges of the Supreme Courts at Madras and Bombay. When in 1861 the Supreme Courts were abolished and the High Courts were established, the powers to issue writs descended upon the judges of the three High Courts. More and more High Courts were later established, but none of the other High Courts enjoyed these privileges. In 1923, vide Section 491 Cr.P.C. 1898, the power to issue writ of habeas corpus was given to all the High Courts. The privilege to issue other writs was still vested in the three Chartered High Courts only. In 1950 the Indian Constitution came into force. Under Art.226, all the High Courts were empowered to issue all the five writs. Under Art. 32 the Supreme Court was rights.
There was always a confusion about the power to issue writs and as to the jurisdiction of the Courts to do so. It would be interesting to study some illustrative Cases to trace the history of the power to issue writs by the High Courts.
Under the Regulating, Act, 1773, the Supreme Court of Calcutta was empowered to issue writs:
(i ) to the persons, officials residing within the local limits (fixed by the statutes) of the presidency town.
(ii) to the Company's subjects, or persons directly or indirectly employed by the Company, or the subjects of the Crown residing in Bengal, Bihar and Orissa.
The Supreme Court interpreted the concept of inhabitancy very broadly and expounded a new doctrine of "constructive inhabitancy". Under this doctrine, the Supreme Court assumed jurisdiction over persons who conducted business in Calcutta through their servants although they themselves resided outside the limits of the presidency town.
After the establishment of the High Courts at the three Presidency towns, the Act of 1861 did not specify or clarify their power to issue the prerogative writs. It simply states that the powers of the erstwhile Supreme Courts would vest in the High Courts. In 1858 the administration of the country had passed on to the Crown who became responsible for governing the country through the Secretary State of India the administration of the country had passed on to the State of India. The distinction between Indian subjects and the British subjects are the Crown's subjects came to an end for all Indians automatically became British subjects. What happened to the High Court's power to issue writs outside the local limits of the presidency town? Some High Courts asserted that since the administration had come under Crown, so their power to issue writs was extended to the mofussil areas also.
In Re National Corbon Co., 1935, Calcutta High Court issued a writ of prohibition to the Controller of Patents and Designs. The Court held that it had the power to issue the writ because it had, inherited the powers vested in the judges of the erstwhile Supreme Court. The judges of the Supreme Court enjoyed the power like the judges of the King's Bench.
In re Ameer Khan, the Calcutta High Court issued the writ of habeas corpus even Beyond the local limits of the town. The High Court held that since the power governance had been transferred from the Company to the Crown, the power to issue writ against the Company's servants was now extended to the servants of the Crown throughout the province. After the transfer of power, there was now no limit on the power to issue writs. In re Govindan Nair, 1922, the Madras High court followed the Calcutta precedent and issued the writ of habeas corpus directing the state government to release the man detained illegally.
In Indumati Chowdhurani v. Bengal Courts of Wards, the Calcutta Hind Court issued the writs of certiorari and prohibition to the Bengal Courts of ward at Calcutta which had declared the applicant a disqualified proprietor. In a Bombay case Alcock & Co. Ltd. v. Chief Revenue Authority of Bombay, the Privy Council held that the Bombay High Court had the jurisdiction and power to issue writs directing the Revenue Authority to perform a duty under the Income Tax Act. In Re Banwari Lal Roy the Calcutta High Court held that it had the power to issue the writ of quo warranto to the Administrator of the Howrah Municipality although it was outside the local limits of the presidency town. The facts of the case were as follows: The Government by an order superseded the Howrah Municipality and appointed an administrator to carry out the functions of the municipality. A petition was filed in the High Court praying for a writ of quo warranto to question the validity of the appointment of the administrator. The High Court before issuing the writ went into the question whether it had the power to do so even when the cases arose outside the local limits of the towh. It was observed that in 1858 power of the Company stood transferred to the Crown. This transfer also changed the status of the Indians as now they all became the subjects of the Crown. Earlier there was a clear distinction between the subjects of the Crown, the servants of the Company and the natives. The Supreme Court was empowered to issue the prerogative writs to the subjects of the Crown and the persons in the service of the Company throughout the provinces of Bengal, Bihar and Orissa or the Mofussil areas, but in the case of the natives the power to issue the writs was restricted to the local limits of the town. This distinction was no more. AS all Indians had become the subjects of the Crown, the power of the Court to issue writs was enlarged to cover the mofussil areas.
But on appeal to the Privy Council, the judicial committee held that the High Court had no power to issue the writ, because its original civil jurisdiction did no extend beyond the local limits of the presidency town. In the opinion of their Lordships, with the transfer of the governmental functions of the Crown the earlier distinction between the subjects of the Crown and the natives was blurred. The distinction could now be interpreted as between the British Nationals and the Indian nationals although all were now British subjects. The power of the High Court to issue writs would still extend to the mofussil in the case of the British nationals, but in the case of the Indians, this power was limited to the local limits of the presidency towns. And as the Howrah municipality was beyond the local limits of the town, the High Court had no power to issue the writ.
In 1943, the Privy Council finally clinched the issue. The case before their Lordships was Ryots of Garbandho v. Zamindar of Parlakimedi. The facts of the case were: The appellants were the ryots of three villages in Ganjam District of Madras province. Sometimes before 1943 the revenue of those villages was enhanced and the Board of Revenue approved the enhancement. The ryots sought to quash the order of the Revenue approving the enhancement of the land rent, by a writ of certiorari. Their Lordships held that Madras High Court had no power to issue the writ merely on the basis of the location of the office of the Revenue Board. If it were so, the jurisdiction of the High Court could be avoided by changing the location of the office. The cause of action arose in Ganjam District which was outside the local limits of the Presidency town of Madras. The power of the High Court to issue writs did not extend beyond the local limits.