GOVERNMENT LAW

COLLEGE, MUMBAI

HISTORY OF
COURTS
ASSIGNMENT
(SEM-3)
(TOPIC-DUAL SYSTEM/WRIT
JURISDICTION)

Submitted By-
Harshi Doshi
V-II-D/3
Writ Jurisdiction

INTRODUCTION
The Supreme Court and the High Courts have been furnished with many abilities which they
exercise to give equity to individuals. One of the main instruments or power which the courts
have been given by the constitution is the ability to give writs.
To guarantee 'law and order' in every administrative movement, the legal audit of legislative
activities called the writ purview exists. The accompanying article clarifies the idea of writ
purview, standards of activity of writ jurisdiction, the writs of Habeas Corpus, Certiorari,
Prohibition, Mandamus and Quo warranto, their grounds and conditions, qualification to
apply, techniques, powers and gives an end by referencing the focuses which a legal survey
inspects.

WRIT JURISDICTION
A Writ implies an order of the Court to someone else or authority by which such
individual/authority needs to act or go without acting with a specific goal in mind.
Accordingly, writs are an extremely fundamental piece of the legal force of the Courts. Writ
jurisdiction is practiced by the Supreme Court and the High courts as it were. This power is
presented to Supreme Court by article 32 and to high courts by article 226.

•Article 32(1) ensure an individual the option to move the Supreme Court for the requirement
of crucial freedoms ensured by part III of the constitution.
•Article 32(2) engages the Supreme Court to give course or orders or writs in the idea of
Habeas Corpus, Certiorari, Prohibition, mandamus and Quo-warranto for the authorization of
major freedoms.
•Article 226 engages the state high courts to give bearings, orders or writs as referenced
above for the authorization of major freedoms and for 'some other reason'. i.e., High courts
can practice the force of writs for the requirement of central privileges as well as for a 'non
key right'.

HABEAS CORPUS
The significance of the Latin expression Habeas Corpus is 'have the body'. As per article 21,
"no individual will be denied of his life or individual freedom besides as per the technique set
up by law". The target of the writ of habeas corpus is to accommodate an expedient legal
survey of supposed unlawful prohibition on freedom. The writ of habeas corpus empowers
the prompt assurance of the right of the litigant's opportunity. Article 22 of the constitution
requires a captured individual to be created inside 24 hours of his capture and inability to do
as such would qualify the individual captured to be delivered. The grounds of his capture
ought to likewise be educated to him. In any event, when the capture is substantial, inability
to illuminate the grounds inside a sensible time would make the confinement illegal. In such
cases, the writ of Habeas corpus goes about as an established advantage. Assuming the court
tracks down that there was no lawful ground for the detainment of an individual, it will pass a
request to deliver him forthwith. The inquiry under the steady gaze of the court is whether the
confinement is legal.

Who can apply?

A writ of habeas corpus is given to the power or individual who has confined the individual.
The application for habeas corpus can be made by the detainee himself or by any intrigued
individual other than an all-out stranger. Even a letter to the court bringing up the lawless acts
of detainment or unlawful confinement will be conceded. In case the court gets any data from
anybody, it can act Suo moto considering a legitimate concern for equity.

Procedure:
An application for a writ of habeas corpus must be made alongside an oath portraying the
nature and conditions of the limitation. Assuming the court observes that a by all appearances
case for conceding the solicitation is clear, then, at that point, it will give a standard 'nisi'
calling upon the authority worried to show cause, on a predefined date, why the writ ought
not be given. On the off chance that the reason shown is viewed as deficient, the court will
give the writ for the prompt arrival of the confined individual.

CERTIORERI
The Latin word Certiorari signifies 'to confirm'. Certiorari can be characterized as a legal
request of the high court or by the high courts to a substandard court or to whatever other
power that activity legal, semi legal, or managerial capacities, to communicate to the court
the records of procedures forthcoming with them for investigation and to conclude the
lawfulness and legitimacy of the request passed by them. Through this writ, the court
suppresses or announces invalid a choice taken by the concerned power. Certiorari is
remedial in nature. This writ can be given to any established, legal or non-legal body or any
individual who exercise powers influencing the freedoms of residents.

Justification for Certiorari:

1.Lack of purview
At the point when the authority has no purview to make a move, it is absence of jurisdiction.
At the point when an authority is inappropriately established or is inept to make a move and
assuming it acts under an invalid law, it will add up to absence of purview. Correspondingly
when the power acts without jurisdiction, neglects to practice the vested purview or acts in
abundance of the cutoff points, there includes a deformity of jurisdiction or power. The court
can give certiorari to suppress such requests.

2.Abuse of purview:
In case a power mishandles its jurisdiction, a certiorari can be given. At the point when the
power practices its power for inappropriate purposes it is maltreatment of jurisdiction.
Likewise on the off chance that the power commits fraud or overlooks pertinent focuses and
realities or follows up on some different contemplations maltreatment of jurisdiction happens
and the writ of certiorari becomes relevant.

3.Jurisdictional realities:
A jurisdictional truth is that reality or realities whereupon a power's ability to act depends.
Without any jurisdiction for guarantee realities an authority can't practice purview over a
question and choose it. In case the power takes a choice on some unacceptable suspicion of
presence of jurisdictional realities, the request is at risk to be subdued by the writ of
certiorari.

4.Error of law evident on the essence of record:

A writ of certiorari can be given to subdue a request in case there is a mistake of law obvious
on the record. A mistake is obvious on the essence of record assuming it is undeniable. For
example, on the off chance that the mistake can be discovered by a simple scrutiny of the
record without a point-by-point contention or additional proof. A mistake of law obvious on
the essence of the record is treated as an affront to the general set of laws. Obliviousness of
law, wrong recommendation of law, irregularity between current realities, law and the choice
and so forth add up to mistakes of law.

5.Violation of the standard of natural justice:

When there is an infringement of the standard of natural justice, a writ of certiorari can be
given. An authority will undoubtedly notice the standards of regular equity. Any individual
who concludes a case should hold fast to the base principles of regular equity. Henceforth
when there happens an infraction of essential right, the writ of certiorari comes for rebuilding
of that right.

PROHIBITION
The justification for giving the writs of certiorari and prohibition are for the most part
something similar. They have numerous normal highlights as well. The writ of prohibition is
a legal request given to a sacred, legal or non-legal body or individual on the off chance that
it surpasses its jurisdiction, or it attempts to practice a purview not vested upon them. It is an
overall solution for the control of legal, semi legal and regulatory choices influencing the
privileges of people.

Grounds:
The writs of prohibition and certiorari are given pretty much on comparative grounds.
1.Absence or overabundance of jurisdiction:
The writ assuming that Prohibition denies an authority from practicing a jurisdiction not
vested on it. When there is nonattendance of jurisdiction or all out absence of jurisdiction an
authority can't act.

2.Infringement of fundamental rights:

At the point when a power acts in infringement or encroachment of the fundamental rights of
an individual, a writ of prohibition can be conjured.

3.Infringement of the standards of natural justice:

All specialists are to notice the standards of natural justice while practicing their powers. In
case an authority flops in such manner the choice of that authority is at risk to be suppressed
through the writ of denial.

4.Statutes or laws against the constitution:

At the point when a power attempts to act under a rule or a law which is unlawful, the writ of
prohibition can be applied.

MANDAMUS
The word significance in Latin is 'we order'. The writ of mandamus is given to any power
which appreciates legal, semi legal or managerial power. The fundamental target of this writ
is to keep the public specialists inside the domain of their jurisdiction while performing
public obligations.

Conditions needed for mandamus:

•The candidate should reserve the privilege to force the presentation of the obligation. This
writ can't be conjured in case the individual whining has no legitimate right.
•There should be public obligation. That obligation should be obligatory and not optional.
And yet when an optional power is manhandled or inappropriately worked out, that would be
treated as non-exercise of tact and the court can order the position to practice the
attentiveness as per law.
•The applicant more likely than not made a particular interest for the exhibition of the
obligation and the authority probably made a refusal to perform. Then, at that point, just a
writ of Mandamus can be looked for.
•A common obligation emerging under an agreement can't be upheld through mandamus. The
jurisdiction of mandamus is optional. Assuming that there is nonsensical deferral in
documenting the appeal or on the other hand in case there is a sufficient substitute cure
mandamus might be declined by the court.

Grounds:
The reason for the writ of mandamus are like those of certiorari and prohibition.
1.Lack of jurisdiction.
2.Error of jurisdiction.
3.Excess jurisdiction.
4.Abuse of jurisdiction.
5.Violation of the standards of regular equity.
6.Error of law evident on the essence of the record and so on

Who can apply?

By and large the impacted individual has the privilege to look for this cure. Exemptions are:
1.The writ of mandamus can't be given against the president or the legislative heads of states.
They can't be demanded to practice powers and to perform obligations.
2.The writ of mandamus can't be given against the state council to keep it from the execution
of a law affirmed to be violative of the arrangements of the constitution.
3.The writ of mandamus can't be given to an on official the sets of his boss.

Reason for refusal of mandamus:

Mandamus is a public law cure and henceforth it can't be utilized to authorize a common
freedom emerging under contracts. If there is absurd deferral in recording the request and in
case there is another satisfactory substitute cure, the writ of mandamus can't be given.
Indeed, the writ of mandamus is more deliberate than certiorari or prohibition It combines the
aspects of both the writs to make a compelling and better arrangement.

QUO WARRANTO
The word significance of 'Quo warranto' is 'by what authority'. It is a legal request against a
considerable public individual office with practically no legitimate power. The individual is
approached to show by what authority he involves the position or office. This writ is intended
to remove people, who are not legitimately qualified, from meaningful public posts. The writ
of Quo warranto is to affirm the right of residents to serve in positions of authority.

Conditions:
The accompanying conditions are to be available if the writ of quo warranto is to be given.

•The workplace should be a 'public office'. All workplaces set up by resolutions or according
to the arrangements of the constitution and which complete public obligations are public
workplaces.
•It should be meaningful in nature. A meaningful office is free and extremely durable. It
should be held by a free official.
•The holder should be in genuine ownership of the workplace
•The individual should have real ownership of the workplace. An individual who has been
chosen or delegated to a specific post can't be sued upon except if he has not acknowledged
the post.
•The holding of the post should be in negation of law.
The arrangement of an individual to a public office should be a reasonable infringement of
law. Abnormalities in systems and so on can't be taken as infringement.

Who can apply?

Any individual from people in general can look for the cure of quo warranto regardless of
whether he isn't by and by oppressed or intrigued by the matter.

CONCLUSION
In our country the legal executive or law is incomparable. Writ purviews are legal surveys of
authoritative activities. Legal authorities consistently remain to guarantee that all
authoritative activities are restricted to the furthest reaches of the law. A legal survey
analyzes

•Regardless of whether the authority has practiced its abilities.

•Regardless of whether the authority has mishandled its abilities.
•Regardless of whether the authority has submitted a mistake of law.
•Regardless of whether the authority has disregarded the standards of regular equity.
•Regardless of whether the authority has encroached the basic freedoms of people and so
forth

Along these lines, the writ jurisdictions go about as legal limitations of strategy choices
which are nonsensical, unjustifiable and against public interests.
GROWTH OF LEGAL PROFESSION IN INDIA & HOW IT NECESSITATED THE
ENACTMENT OF THE ADVOCATES ACT, 1961

LEGAL PROFESSION
The profession of law is one of the oldest and noblest professions. The person in the legal
profession is called an advocate or lawyer. An advocate is an officer of justice and a friend of
the court. He has to accept a brief for any man who comes before the courts and do what one
can do honorably on behalf of his client. He has to collect legal material relating to the case
of his client had argue in the courts to help the judges to deliver judgments. The central
function that the legal profession must perform is nothing less than the administration of
Justice.
An advocate also serves the public by giving legal advice by explaining the complicated and
confusing provisions of different Acts and Rules to citizens who seek his service.
An advocate assists the parties in drafting the economic transactions like contracts,
agreements, deeds, wills etc.
An advocate also provides professional services regarding taxation and trade performance.
An advocate has to protect the fundamental and Human Rights in addition to propagating
them among citizens.
An advocate is the foreigner of the society. He has to fight for law reforms and social change
and at the same time extend his services to maintain law and order.

LEGAL PROFESSION IN ANCIENT INDIA

In India during the earlier period, people live in small groups. The heads of these groups or
tribes delivered justice under open sky before all the members. Open arguments were made.
There were no specialist like a lawyer during those days. When Kingships was established in
the society, Kings delivered justice. In King's Court, the king was advised by his councilors.
The law of those days was a rooted in Hindu religion and custom. Dharma was protected by
the king. Though there was no Institution of a lawyer, some intellectual people served justice.
From the stories of Maryada Ramayana and Vikram Aditya, we are well aware of the wise
man who solved the critical cases of those days. During those days the legal profession was
administered by the administrators. For some time religious heads dominated the society in
administering the justice. During those days, the sufferer presented complaint before the king
in his court and thereafter the court summoned the defendant to submit his reply. The Court
then investigated the matter on the evidence. The King took the advice of the religious heads
and wise courtier and then delivered the judgment. The same procedure was followed in all
cases.

LEGAL PROFESSION IN MEDIEVAL INDIA

During the Muslim period, there was no Institution of the legal profession. But both the
parties of the litigation appoints their Vakils. This body decides the case and they were paid a
percentage of the amount in the suit. The Court has the power to decide who should be
allowed to appear as Vakils. They act as agent for principals but not as lawyers. The same
system was continued in North India even under the rule of East India Company.

LEGAL PROFESSION IN BRITISH INDIA

During the British period, the model legal system was developed in India. Before 1726, the
courts derived their power not from the British crown but from the East India Company. The
charter of 1661 has already described the English law.
i) Charter of 1726 :
In 1726 the crown issued the charter of 1726, and the Mayor's Court were established in the
presiding towns of Bombay, Calcutta, and Madras. They were the royal Courts. They
followed the procedure based on English law. But there were no facilities to get the legal
training. Many persons who have no knowledge of law were used to practice before the said
Courts. The Mayor's Court has no jurisdiction in criminal cases. The criminal jurisdiction was
conferred on the Governor.
ii) Charter of 1753 :
In 1753, another charter was issued to modify the charter of 1726. This charger also ignored
significant provision for legal training and education relating to legal practitioner. Even after
the charter of 1753, the legal profession was not organized.
iii) Charter of 1774 :
The Regulating Act, 1773 empowered the British Crown to establish a Supreme Court at
Calcutta by issuing a Charter. Accordingly, a supreme court at Calcutta was established by is
sung the charter of 1774.
Clause II of the Charter of 1774 empowered the said Supreme Court of Judicature Calcutta to
approve and enroll advocates and Attorneys- in-law. They were to be Attorneys of record.
They were authorized to appear and act in the supreme court. The supreme court had the
power to remove any advocate for Attorney on reasonable cause. Indian legal practitioners
were not allowed to enter the supreme court. At that time 'Advocate' means the British and
Irish Barristers and member of the faculty of advocates in Scotland. The term 'Attorney'
applied to the British attorneys or solicitor.
iv) The Bengal Regulation Act of 1793 :
The Bengal Regulation Act VII Of 1973 permitted qualified Hindu and Muslim persons only
to enroll as pleaders and the Bengal Regulation XII of 1833 allowed all the qualified persons
of any nationality or religion to enroll as a pleader of the Sardar Diwani Adalat.
v) The Legal Practitioners Act, 1846 :
The legal practitioners Act 1846 allowed at the people of any nationality or religion to act as
leaders. It also allowed attorneys and barristers enrolled in any of Her Majesty's courts in
India to plead in the company's Sardar Adalat.
The Legal Practitioners Act, 1853 - This Act authorized the barristers and Attorneys of the
Supreme Court to plead in any of the companies courts subordinate to Sardar court subject to
rules in force in the said subordinate courts as regards language or otherwise.
vi) Indian High Court Act, 1861 :
The Indian High Court Act, 1861 empowered the government to establish High Court in
Presidency towns. After the establishment of the High Courts, the Civil Courts were
organized at different towns. The criminal courts were organized by the Criminal Procedure
Code 1898.
vii) Legal Practitioners Act 1879 :
Under the Legal Practitioners Act 1879 the term 'legal practitioner' means Advocate, Vakil or
attorney of a High Court and pleader, Mukhtar or revenue agent, who were non-graduates
and matriculates only. All these were brought under the jurisdiction of the high court. Vakils
were the persons who had taken the law degree from Indian Universities. Pleaders and
mukhtars Were the Indian lawyers but advocate were to be the barristers.
viii) Indian bar committee 1923 :
A committee called Indian bar committee under the chairmanship of Sir Edward Chaminer
was constituted in 1923 to consider the issue of the organization of the bar on all India basis.
The committee did not favor the establishment of All India Bar Council. It was of the view
that bar council should be constituted for each High Court.
Indian Bar Council Act 1926 -
In 1926, the Indian bar council of India Act was enacted to provide a bar council for each
High Court. The Bombay High Court and Calcutta High Court allowed non-barrister
advocates to practice. Thus the distinction between Barristers and advocates was abolished.
The pleaders and Mukhtars practicing in Mufusil Courts were not within the scope of the
Indian bar council act 1926.
Even after the enactment of the Bar Council Act 1926, the High Court has the power of
enrollment of advocates and the functions of the bar council was the adversary in nature and
the rules made by the bar council were to be effective only on the approval of the high court.
Section 10 of the Indian Bar Council Act 1926 empowered the high court to reprimand,
suspend or remove from practice any advocate of the high court if he was found guilty of
professional misconduct or other misconduct.