Synopsis - Writ of Prohibition

Introduction

A Writ is a formal written order issued by a government entity in the name

of the sovereign power. In most cases, this government entity is a court.
It ensures that Rule of Law exist in all governmental actions. The judicial
review of administrative actions in the form of writ jurisdiction is to ensure
that the decisions taken by the authorities are legal, rational, proper, just,
fair and reasonable. Safeguard of fundamental rights and assurance of
natural justice are the most important components of writ jurisdiction.

In India, writ is a common law remedy through the provisions of the

Constitution of India vide Art.32 and 226. Writs are one of the surest forms
of remedy and only the High Courts and the Supreme Court of India can
issue Writs and no other lower Court is allowed to issue writs in India. An
important dimension of writ remedy is the award of compensation as part
of the relief that can be granted to the affected person, which is natural in
a welfare state.

Hypothesis

In this dissertation, origination of writs in the world, birth of writs in India,

principles governing writ jurisdiction, Constitutional provisions under Art.
32 & Art.226, application of writ of prohibition are analyzed in detail.

This study also reveals various types of writs exercised in various parts of
the world and kinds of writs available under the provisions of the
Constitution of India, 1950. It also explicit the usage of writs in India with
an unambiguous study on the differences between Writ of certiorari and
writ of prohibition.

Literature review

1) The Constitution of India, 1950

2) Law of Writs by Abhe Singh Yadav
3) Halsburys Laws of England
4) Constituent Assembly Debates
5) Lectures on Administrative Law by C.K. Takwani
6) Supreme Court Cases / Judgments

Contd..2.
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Chapter-wise break up

i) Origination of Writs in the World :

During ancient periods, an written order issued on behalf of the
Monarch of the United Kingdom to local officials (High Sheriffs of
every country in the historical UK) to hold a general election is
considered as a writ. Then in medieval times, English Kings used
to issue barons to summon persons of influential importance
namely Peers (whether hereditary or not) to Parliament whose
advice was considered valuable. King Johns Magna Carta
guaranteed to all free men immunity from illegal imprisonment, a
guarantee that has traditionally been invoked by way of the writ
of habeas corpus. But as far as the writ of prohibition is
concerned, its birth place is United States where the practice of
drafting and issuance of a legal document by a Supreme Court,
Superior Court or Appeal Court to a Judge presiding over a suit in
an inferior court was started.
ii) Birth of Writs in India:
The writs can be traced back to the Regulating Act, 1773 under
which Supreme Court was established in Calcutta. It also
established High Courts with the power to issue writs with a limit
to their original civil jurisdiction under Section 45 of the Specific
Relief Act, 1877.
iii) Principles governing the concept of writ jurisdiction:
Writs are meant as prerogative remedies. The writ jurisdictions
exercised by the Supreme Court and by the High Courts for the
enforcement of fundamental rights are mandatory and not
discretionary. But the writ jurisdiction of high courts for 'any other
purpose' is discretionary. In that sense the writ jurisdiction of high
courts are of a very intrinsic nature. Hence high courts have the
great responsibility of exercising this jurisdiction strictly in
accordance with judicial considerations and well established
principles. When ordinary legal remedies seem inadequate, in
exceptional cases, writs are applied.
iv) Constitutional provisions under Art. 32 & Art.226:
Article 32 and 226 of the constitution of India has designed for
the enforcement of fundamental rights and for a judicial review of
administrative actions, in the form of writs. It is a constitutional
remedy available to a person to bring his complaint or grievance
against any administrative action to the notice of the court.
Safeguard of fundamental rights and assurance of natural justice
are the most important components of writ jurisdictions.
 Wherever there is a right there must be a remedy for it. Thus it
should satisfy the maxim, ubi jus ibi remedium.
Contd..3.
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v) Application of writ of prohibition:

Prohibition is an extra ordinary prerogative writ of a preventive

nature. The under lying principle is that Prevention is better
than cure. A writ of prohibition is a writ directing a subordinate
to stop doing something that they may not do according to law,
but are doing. This writ is normally issued by a superior court to
the lower court asking it not to proceed with a case which does
not fall under its jurisdiction. The writ lies in both for access of
jurisdiction or absence of jurisdiction. It is generally issued before
the trial of the case or during the pendency of the proceeding but
before the order is made.

vi) Conclusion:
The writ remedy is one of the most powerful remedy given to the
people of India by the Constitution. Writs are discretionary
powers which should be exercised on sound legal principles. In a
system governed by rule of law when discretion is conferred upon
the executive authorities it must be based on clearly defied
limits. Judiciary stands to ensure that all administrative actions
are confined to the limits of the law. Thus, the writ jurisdictions
act as checks and balance of policy decisions to ensure that no
laws made are unreasonable, unfair and against public interest.
To end this submission, I must quote the words of one of the
principle makers of the Indian Constitution, Dr. B.R. Ambedkar
who has given the prime importance to Article 32 among all
other articles from the Indian Constitution. He has referred that,
It is the very soul of the Constitution and the very heart of it.

Thanking You.

Submitted By

Subramonian. P
Reg.No.15551085
Roll No.80, 3rd Semester
LLB ( 3 Year ) Evening
Kerala Law Academy,
Trivandrum-695005.