The constitution of India is an amalgamation of the doctrine of rule of law, separation of powers, federalism, accountability of the organs, decentralization of powers, judicial review and Independence of the Judiciary. The constitution of India mentions judicial review as the basic feature of the constitution which means that the Judiciary can review both the legislative and the executive. Any statue made by the legislative can be invalidated by the Judiciary for violating the constitutional terms and provisions. At the same time, any law implemented or any decision made by the executive can be invalidated by the Judiciary for being unlawful.
Thus, this article analyses the Judiciary and its powers through writs as the watch tower and the guardian of the constitution of India nevertheless establishing it as the third most important pillar of the union which protects, preserves and enforces our fundamental and legal rights.
State in international law is defined as an independent political entity occupying a defined territory, the members of which are united together for the purpose of resisting external force and preservation of internal order. This means the objective of the first-generation State was that of the need of food, clothes and shelter. Further it evolved its objectives to the need of eradicating poverty and having proper heath to education as a need and then further into the defense of the State and its law and order. But the modern State does not restrict itself to the former objectives only and is much more than that. It looks into the sustainable development and social welfare of the State.
The constitution of India is an amalgamation of the doctrine of rule of law, separation of powers, federalism, accountability of the organs, decentralization of powers, judicial review and Independence of the Judiciary.
The doctrine of rule of law States that there should be no presence of arbitrary powers i.e. no man is above law and should not be punished by personal whim but only by any reason and rules of the system; there should be equality before law i.e. no person will be treated according to his position and treated like all others. Equals should be treated equally and the unequal’s should be treated equally; and there should be individual liberties i.e. the rights of a person are determined by the courts in the cases brought before the Judiciary. Thus, lies the importance of Judiciary to assure that the government runs according to law.
The federal system in India States a distinctive distribution of legislative, administrative and financial powers between the center and the State, making the State and every other subordinate organ accountable to the center. This often leads to disputes between the State inter se and the center and the State for which the Judiciary plays an essential role by assuring that the organs perform their function while being in their allotted legislative domain.
The constitution of India mentions judicial review as the basic feature of the constitution which means that the Judiciary can review both the legislative and the executive. Any statue made by the legislative can be invalidated by the Judiciary for violating the constitutional terms and provisions. At the same time, any law implemented or any decision made by the executive can be invalidated by the Judiciary for being unlawful.
The objectives to achieve, the State needs to have organized organs with powers and functions to perform on behalf of the State, authorized by the State itself and a predictable body that has the regulatory power. This is exactly where the need of constitution comes into play. The sole purpose of the constitution is to establish a government with a frame work to look into the working of the State with the constitution itself being the ultra vires. This government is organized by dividing it into three organs namely the legislative I.e. law-making body; the Judiciary I.e. law interpreting body in accordance to the constitution and the executive I.e. law implementing body where the constitution holds the Judiciary to be independent of the interference from the legislative and the executive which this article tries to discuss and assess its real independence in India.
As per the Article 50 of the directive principle of State policy, The basic meaning of the phrase is that the Judiciary is free from the interference, influence and control of the other two organs of the government, namely the legislative and executive. Further it also means that the Judiciary is free to make decision and pass judgments without any pressure from other governmental entities. The absence of judiciary independence will lead to the fall of the doctrine of rule of law and federal system of the government and will assure the Judiciary decision being made without any fear, pressure and biasedness by political ideology and economic theories.
The independence of Judiciary also means that the Judiciary is free from the influence of politics, corruption and personal predilections of the judges and the Judiciary shall strive for the welfare of the society as Stated in article 38(1) of the directive principle of State policy.
The Independence of the Judiciary is very crucial for its existence will lead to the protection of the fundamental rights of the citizens against the arbitrary powers of the legislative and the executive and will assure the constitutional validity of the laws and regulations and the mandatory performance of the constitutional duty by all the organs.
The Constitution of India makes adequate provisions for the Independence of the Judiciary which was first seen in the pronouncement of the judgment of Bachan Singh v. State of Punjab by the supreme court. Justice Bhagwati emphasized on the doctrine of rule of law stating that, “it is necessary to have a democratic legislature to make laws, but its power should not be unfettered and that there should be an independent Judiciary to protect the citizen against the excesses of the legislative and the executive powers.”
WHAT IS JUDICIAL REVIEW?
The Indian Constitution, unlike the United States Constitution, expressly provides for judicial review under Article 13 clause (1). It states that all laws that were previously, or immediately before the Constitution of India was adopted, in force in the territory of India, in so far as they are in conflict with the provisions containing the fundamental rights, shall, to the extent of such conflict, be void. Clause (2) of the same article further says that the states shall not make any law that withdraws or curtails any of the fundamental rights, and any law so made in contravention of the rule as mentioned above shall, to the extent of such contravention, be void.
Judicial review is the power of the courts of a country to examine the actions of the legislative and executive branches of the government and to determine their consistency or the lack thereof with regard to the constitution of such country. Actions that are found to be inconsistent are declared unconstitutional. Constitutional judicial review is apparently considered to have commenced with the assertion by John Marshall, fourth chief justice of the United States, in Marbury v. Madison, that the Supreme Court of the United States had the power to declare invalid legislation enacted by Congress.
The origin of writs in India goes back to the Regulating Act, 1773 under which the Supreme Court was established at Calcutta. The charter also established other High Courts and also gave them the power to issue writs as a successor to Supreme Court. The writ jurisdiction of these courts was limited to their original civil jurisdiction which they enjoyed under Section 45 of the Specific Relief Act, 1877.
PRINCIPLE OF WRIT JURISDICTION:
The Constitution of India confers on the Supreme Court, under Article 32, and on the High Courts, under Article 226, to issue writs and orders. The Supreme Court can issue these writs for the enforcement of fundamental rights, but the High Courts can issue them for the enforcement of fundamental rights as well as for any other purpose. Here, ‘for any other purpose’ means for the enforcement of any common law right or any statutory right.
In one of its earliest judgments, the Supreme Court clearly illustrated that it would not stand on the ground of formality of the petitioner having asked for a specific remedy. This means, the petitioner only has to establish a violation of his rights and the court will issue a remedy appropriate for such violation, irrespective of what remedy has been requested. Indian courts can issue either directions, or orders, or any of the writs other than prerogative writs. This enables the Indian courts to mould relief to meet the particular requirements of this country. It leaves to the courts an ample amount of flexibility to deal with the problems at hand.
Thus, the constitution provides the discretionary remedies on the High Court and the Supreme Court. In the absence of the provisions of such remedies, no one can enforce its rights given. Thus, wherever there is a right there must be a remedy for it. Thus, it should satisfy the maxim, ‘ubi jus ibi remedium.’One of the principle makers of the constitution, Dr. Ambedkar 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, “It is the very soul of the Constitution and the very heart of it.”
There are five writs, namely, habeas corpus, certiorari, mandamus, quo warranto and lastly, the writ of prohibition.
· Habeas corpus, of Latin origin, ittranslates to ‘to have the body of’. It is a remedial measure for an individual who is unlawfully or illegally detained/imprisoned. As per Indian penal laws, if a person has been arrested by the police, he is to be produced before the Magistrate within 24 hours of his arrest. If an individual is detained without having violated any law, or if his arrest is unconstitutional; in such situations, the writ of habeas corpus can be opted for in the higher judiciary. It can be issued against private and public authorities, and a person can file this petition on behalf of the detainee.
· Mandamus, another Latin term, it means ‘to command’. Its purpose is to ensure that government/public officials discharge their duties effectively. In an event of a public official failing to carry out his duty or abstaining from doing so thereof, this writ can be issued to compel them to do so. It should be noted that mandamus cannot be issued against any individual, or for any contractual obligation. It can be issued to a public body or corporation, but cannot lie against the president, governor, or state legislature deliberating laws.
· Certiorari, perhaps the oldest writ, was a royal demand for the certification of some matter in the King’s time. It essentially means ‘to certify’ and can be issued by a superior court requiring the records of a proceeding that is pending before the lower court/ tribunal. In doing so, the superior court either transfers the case to itself or quashes an order passed by the inferior court. It is a means of obtaining speedy justice when the inferior court exercises powers beyond its jurisdiction or in the deficit of it. This writ is of prerogative nature and is issued against administrative authorities that breach the rights of individuals. It is of preventive and curative nature.
· Writ of prohibition, as the name suggests, this writ is issued to lower courts to prevent them from exercising powers beyond their jurisdiction. Popularly known as a ‘stay order’, it issued by the High courts or Supreme Court against an order/decision passed by the lower court. At this juncture, it is imperative to note the difference between certiorari and prohibition. While the former, calls to produce records of an ongoing/pending proceeding in an inferior court, the latter, is a preventive measure for a decision that has already been passed by the lower court. Bearing this in mind, certiorari has a greater weightage than prohibition as the findings of the lower court are deemed to be examined and reviewed by the superior court.
· Quo warranto, another word that flows from the Latin dialect, translates to ‘by what warrant’ or ‘by what authority’. This writ is issued to verify the legality of the usurpation of a public office by an individual. If this occupying of public office is found to be of illegal nature, the higher court issues this writ as an enquiry into it, thereby directing their removal or continuation, whatever the case may be. A peculiar feature of this writ is that it is restricted to a public office that is created either by a statute or by the Constitution. The claimant must satisfy the court that there was a wrongful usurpation, and consequently, the court will examine the same. This is the only writ issued against an individual and not a body or authority.
WHEN IS A WRIT ISSUED?
Thus, it can be affirmed that a writ is issued when there is a violation of a fundamental right, if the issuing body is the Supreme Court; and when there is a violation of either a fundamental right, or for any other purpose i.e., violation of any statutory or common law right, when the issuing body is any High Court.
WHEN IS A WRIT NOT ISSUED?
The law of limitation is not applicable to writ jurisdiction, however, a person must seek remedy within a reasonable period of time. However, in Dr. Kashinath G. Jalmi v. the Speaker, the Court held that where public interest is involved, a court should refrain from rejecting an application for a writ of quo warranto on the ground of delay.
The prerogative powers of writ jurisdiction conferred by the Constitution of India for judicial review of administrative action is unquestionably discretionary and yet is not restricted in its limits. The discretion however should not be exercised arbitrarily but on sound legal principles and principles of natural justice. In this regard it is vital to put emphasis on the absence of arbitrary power and that it is the first essential of the rule of law upon which the whole constitution system is based. In a system governed by rule of law whenever discretion is conferred upon the executive authorities it must be subject to clearly defined limits. Writs help check administrative discretion. Any person or body of persons who has thus been affected in adverse by the exercise of administrative powers by the executive can get such action remedied by the Courts.
The Constitution is the covers every law and nobody is supreme or above the constitution. Even the judges of Supreme Court who are the protector of the Constitution are not above law and they are bound by the law of the land. The constitutional remedies provided to us bind the executive in their administrative actions and keeps them and the actions of the government in check. In our country the judiciary is the guardian of law which is supreme. Writ jurisdictions are judicial reviews of administrative actions. Judiciaries always operate to ensure that all administrative actions are confined to the limits of the law and does not step outside such limits. Thus, the writ jurisdictions act as judicial restraints of policy decisions which are unreasonable, unfair and against public interest.
 S.P. Sathe, Judicial Activism: The Indian Experience, 6 WASH. U. J.L. & POL’Y 29, 38 (2001).
 C. Neal Tate, Judicial Review, BRITANNICA, https://www.britannica.com/topic/judicial-review.
 5 U.S. (1 Cranch) 137 (1803).
 INDIA CONST. art. 226(7).
 T. C. Basappa v. T. Nagappa, A.I.R. 1954 S.C. 440.
 ADM Jabalpur v. Shivkant Shukla (1976 AIR 1207)
 AK Gopalan v. State of Madras (1950 AIR 27)
 Vineet Narain vs Union of India (1 SCC 226)
 Hari Vishnu Kamath vs Syed Ahmad Ishaque (1955 AIR 233)
 University of Mysore v. C.D Govind Rao (1965 AIR 491)
 A.I.R. 1993 S.C. 1873.
Author Details: Sidra Javed
Editor Details: Neha Mishra (Amity University, Kolkata)
The views of the author are personal only. (if any)