A Study on Writ jurisdiction and its Comparative Study
INTRODUCTION
According to the Article 101 of the Bangladesh Constitution there are two sources of power and jurisdiction of the High Court such as the Constitution and ordinary law. Hence, the Jurisdiction of the High Court Division (HCD) may be divided into two categories ordinary or general jurisdiction and constitutional jurisdiction. For example, section 113 of the Code of Civil Procedure (C.P.C.) gives the High Court Division (HCD) reference jurisdiction. The Constitution itself has conferred on the HCD the following three types of jurisdictions
(a) Writ Jurisdiction
(b) Jurisdiction as to Superintendence and Control over courts.
(c) Jurisdiction as to Transfer of Cases.
WHAT IS WRIT JURISDICTION
The Constitution has conferred on the High Court Division (HCD) original jurisdiction only in one case and that case is the field of writ matters. The basis of writ jurisdiction is Article 102 of the Constitution of Bangladesh. <href=”#_ftn1″ name=”_ftnref1″ title=””>[1]Writ jurisdiction means the power and jurisdiction of the HCD under the provisions of the Constitution whereby it can enforce fundamental rights as guaranteed in part III of the Constitution and can also exercise its power of judicial review. Like Article 32 of the Indian Constitution and article 22 of the Pakistan constitution of 1956 conferred power on the supreme court to enforce fundamental right and made the right to apply to supreme court for enforcement of fundamental rights itself a fundamental right. <href=”#_ftn2″ name=”_ftnref2″ title=””>[2]Under the constitution, the High Court Division has power under art.102(1) to pass necessary orders to enforce fundamental rights under article 44(1) the right to move the High Court Division under article 102(1) is itself fundamental right. <href=”#_ftn3″ name=”_ftnref3″ title=””>[3]In view of the provision of art-44 the High Court Division cannot refuse to entertain an application under article 102 (1) on the ground that the petition involves resolution of disputed question of fact. If necessary in appropriate cases, the court will have to take evidence. The constitution does not stipulate the nature of the relief which may be granted. It has been left to the High Court Division to fashion the relief according to the circumstances of a particular case. <href=”#_ftn4″ name=”_ftnref4″ title=””>[4]The constitution has not stipulated any procedure for the remedy and it is for the court to adopt its own procedure. The high Court Division follows certain rules of procedure and practice in respect of all writ petitions, whether one involves enforcement of fundamental rights or not. <href=”#_ftn5″ name=”_ftnref5″ title=””>[5]A person may apply for enforcement of fundamental right when there is a threat to infringe it and need not wait till the threat is carried out. The threat must be real and the mere apprehension that the petitioner may be deprived of his fundamental right is not sufficient to invoke the jurisdiction of the court.
WRIT JURISDICTION
MATTERS OTHER THAN FUNDAMENTAL RIGHTS
Article 170 of the Pakistan constitution of 1956 conferred power of judicial review on the provincial High Courts by way of issuing writs in the nature of Mandamus, Certiorari, Prohibition, Habeas Corpus and Quo Warranto. The Indian constitution also confers power of judicial review on the High court of every state in the same language. <href=”#_ftn6″ name=”_ftnref6″ title=””>[6]Article 102 (2) of the constitution confers power of judicial review on the High Court Division in the same language as used in article 98 of the Pakistan constitution of 1962. Article 102 (2) (a) (i) empowers the High to issue orders in the nature of prohibition and mandamus, article 102 (2) (a) (ii) empowers the High Court Division to issue orders in the nature of certiorari, art 102 (2) (b) (i) vest the power to issue orders in the nature of habeas corpus and art 102 (2) (b) (ii) invest the HCD with the power to issue orders in the nature of quo warranto. Writ of certiorari and prohibition are intended to prevent public functionaries from exceeding their power, the difference between the two being that prohibition is issued when the act or proceeding is not complete.
Article109 of the Constitution says that the HCD shall have superintendence and control over all courts and tribunals subordinate to it. This power is also called the supervisory power of the HCD. Therefore, the condition for supervisory power is that the court or tribunal must be subordinate to the HCD.
DISTINCTION BETWEEN ARTICLE 102 AND ARTICLE 109
There is a Distinction between Writ Power under Article 102 and the Supervisory Power under Article 109 of Bangladesh Constitution. It is as follows.
1. The writ power under Article 102 can be exercised only on application by a party, while the supervisory power under Article 109 can be exercised Suo-moto by the HCD without any application by any party.
2. The supervisory power under Article 109 can he exercised only in respect of courts and tribunals subordinate to it. <href=”#_ftn7″ name=”_ftnref7″ title=””>[7]But the writ power under Article 102 can be exercised irrespective of the question whether the court or tribunal is subordinate to HCD. Ofcourse, this writ power is not applicable to those tribunals which come under the preview of Article 102(5).
3. The supervisory power is purely a discretionary power with the HCD and no litigant can invoke this jurisdiction as of right. But the writ power under Article 102 is not a discretionary power. A person whose fundamental rights have been infringed can file, as of right, which is guaranteed in Article 44, an application for enforcement of his rights and if the (HCD) finds that his fundamental rights have been isolated, then ills obligatory on the (HCD) do give remedy. In addition, if the applicant is not satisfied with the (HCD) remedy, he may appeal to the appellate Division under Article 103 of the Constitution.
WHAT IS WRIT
The word Writ means a written document by which one is summoned or required to do or refrain from doing something. <href=”#_ftn8″ name=”_ftnref8″ title=””>[8]Historically writ originated and developed in British legal system As defined by Blackstone, ‘writ is a mandatory letter from the king-in-parliament, sealed with his great seal, and directed to the Sheriff of the country wherein the injury is committed or supposed so to be, requiring him to command the wrongdoer or party caused either to do justice to the complainant, or else to appear in court and answer the accusation against him.”
The Writ is a legal instrument of the superior courts for remedies to persons, natural or jural, against the arbitrary or illegal actions of any authority or the lower court. There are five kinds of writs, namely certiorari, habeas corpus, mandamus, prohibition and quo warranto. <href=”#_ftn9″ name=”_ftnref9″ title=””>[9]Originated first in England, these writs were exercised by the Judges of the King’s Bench and called prerogative writs exercised by that Court on behalf of the King. Article 102 of the Constitution of Bangladesh provides for granting remedies similar to that of the above writs, though it does not speak of any of such writs in specific terms. Sub-clause (i) of clause (a) of sub-article (2) of article 102 provides for remedies similar to that of writs of prohibition and mandamus. Sub-clause (ii) of clause (a) of the same article provides for remedy similar to writ of certiorari. Sub-clause (i) of clause (b) of the sub-article (2) of article 102 provides for remedy similar to that of habeas corpus and sub-clause (ii) of the same clause (b) provides for remedy similar to that of quo- warranto.
Initially writs were royal prerogatives. Since only the King or Queen as the fountain of justice could issue writs, they were called prorogate writs. “They were called prerogative writs because there were conceived as being intimately prerogative writs because they were conceived as being intimately connected with the rights of the crown. A Prerogative writ was issued only on some probable cause being shown to the satisfaction of the court. Why the extraordinary power of the crown is called in to the party’s assistance.
The king issued writs through the court of Kings’ Bench or the Court Chancery. The prerogative writs were five in number—Habeas Corpus, Certiorari, prohibition, Mandamus, and Quo-Warranto. <href=”#_ftn10″ name=”_ftnref10″ title=””>[10]The King issued them against his officers to compel them to exercise their functions properly or to prevent them front abusing their powers.
Subjects being aggrieved by the actions of tile king’s officials came to the King and appealed for redress. And the King through the above mentioned two courts issued them against his officials to give remedies to his subjects. Gradually as tile governmental functions increased and the concept of rule of law emerged and the courts became independent. These writs came to be the prerogatives of the courts instead of the King and lastly they came to be tile prerogatives of the people, for they are now guaranteed rights in the constitutions (If many countries and citizens can invoke them as right.
WRIT JURISDICTION AGAINST WHOM AVAILABLE
Writ of certiorari, mandamus and prohibition lie against ‘any person’ performing functions in connection with the affairs of the Republic or of a local authority and not against a private individual or body. <href=”#_ftn11″ name=”_ftnref11″ title=””>[11]Thus the ‘person’ must be a public functionary. A writ petition will not lie even against a public functionary in respect of functions performed not in connection with the affairs of the Republic or a local authority, but in his private capacity. Writ of Habeas Corpus lies against any person, be he a public functionary or private person, while quo-warranto lies against a person holding or purporting to hold a public office. Article 102(5) stipulates that the expression person in art 102 includes a statutory authority and any court or tribunal except (i) a court or tribunal established under a law relating to defence service or any discipline force and (ii) a tribunal to which art.117 is applicable. The definition of person is both inclusionary and exclusionary. Person thus includes all statutory authorities and courts and tribunals except the ones excluded. Statutory public authorities are defined in art152 as the authorities whose activities are authorized by statutes or instruments having statutory force. It must also include all authorities whose activities are authorized by the Constitution. <href=”#_ftn12″ name=”_ftnref12″ title=””>[12] In view of the Provisions of art 105 (5) a writ will lie against all those who come within the meaning of person except those who have been excluded from the definition for the purpose of exercise of the writ jurisdiction. The definition of person given in art.102 (5) is inclusive and not exhaustive. By virtue of art. 152 the definition of person and local authorities given in General clauses Act will be attracted.
Writ of habeas corpus lies against M.P. Vs’ Ankatel, AIR 1985 Sc 901 (Referring to some earlier decisions, the court observed that the principles of unjust enrichment laid down in those decisions were based on speech statutory provisions, But the same principles can be safely applied to the cases where no such statutory provision is in over Roles (India) Ltd Vs. India. AIR 1989 Born 183.
NO WRIT SHALL LIE
For the reason of exclusionary clause no writ shall lie against a court or tribunal established under a law relating to the defense services or any disciplined force or a tribunal to which art.117 applies. However, writ petition will lie against the military authorities other than a court or tribunal of the specified kind.
No writ petition shall lie for decision on an abstract question of law. Such abstract question of law can be decided with reference to facts in an appropriate case.
Person having no background information or for that matter any expertise cannot maintain a writ. <href=”#_ftn13″ name=”_ftnref13″ title=””>[13]A mandamus cannot be issued to violate the law or to act in violation of the law. In Bangladesh V. A.K.M. Zahangira question arose as to the meaning of tribunal within the meaning of art.102(5).
Applying the principle of ejusdem generic the Appellate Division by a majority judgment held that the expression tribunal having been used along with the expression court must be understood in the narrow sense of a tribunal performing quasi judicial functions and opined that the authorities empowered to take disciplinary action against police officers.
HISTORICAL DEVELOPMENT OF WRIT
ENGLAND
In origin a writ was a letter, or command, from the King, or from some person exercising franchise jurisdiction. Early writs were usually written in Latin and royal writs were sealed with the Great Seal. <href=”#_ftn14″ name=”_ftnref14″ title=””>[14]At a very early stage in the English common law, a writ became necessary, in most cases, to have a case heard in one of the Royal Courts, such as the King’s Bench or Common Pleas. Some franchise courts, especially in the Counties Palatine, had their own system of writs that often reflected or anticipated the common law writs. The writ would act as a command that the case be brought before the court issuing the writ, or it might command some other act on the part of the recipient.
Where a plaintiff wished to have a case heard by a local court, or by an Eyre if one happened to be visiting the County, there would be no need to obtain a writ. Actions in local courts could usually be started by an informal complaint, which may not necessarily need to be written down.
However if a plaintiff wished to avail themselves of Royal — and by implication superior — justice in one of the King’s courts, then they would need a writ, a command of the King, to enable them to do this.<href=”#_ftn15″ name=”_ftnref15″ title=””>[15] Initially for common law, recourse to the King’s courts was unusual, and something for which a plaintiff would have to pay.
For Royal Courts, the writ would usually have been purchased from the Chancery, although the court of the Exchequer, being in essence another government department, was able to issue its own writs.
While originally writs were exceptional, or at least non-routine devices, Maitland suggests that by the time of Henry II, the use of writs had become a regular part of the system of royal justice in England.
At first, new writs could be drafted to fit new situations, although in practice the clerks of the Chancery would re-use old forms, and there were many books which were collections of forms of writ, much as in modern times lawyers frequently use fixed precedents or boilerplate, rather than re-inventing the wording of a legal document each time they wish to create one.
The problem with this approach was that the ability to create new writs amounted to the ability to create new forms of action. <href=”#_ftn16″ name=”_ftnref16″ title=””>[16]A plaintiff’s rights (and by implication those of a defendant) would be defined by the writs available to them: the ability to create new writs was close to the ability to create new rights, a form of legislation.
There was increasing opposition to the creation of new writs by the Chancery. For example, in 1256, a court was asked to quash a writ as “novel, unheard of, and against reason” (Abbot of Lilleshall v Harcourt (1256) 96 SS xxix 44). This resulted in the Provisions of Oxford 1258, which prohibited the creation of new forms of writ without the sanction of the King’s council. <href=”#_ftn17″ name=”_ftnref17″ title=””>[17]New writs were created after that time, but only by the express sanction of Parliament and the forms of writ remained essentially static. Each writ defining a particular form of action.
With the abolition of the Forms of Action in 1832 and 1833, there no longer needed to be a variety of writs, and one uniform of writ came to be used.
After 1852, the need to state the name of the form of action was also abolished. In 1875, the form of writ was altered so that it conformed more to the subpoena that had been in use in the Chancery. <href=”#_ftn18″ name=”_ftnref18″ title=””>[18]A writ was a summons from the Crown, to the parties in the action, with on its back the substance of the action set out, together with a ‘prayer’, which requested a remedy from the court (for example damages).
In 1980, the need for writs to be written in the name of the Crown was ended, from that date a writ simply required the parties to appear. Writs applied to claims that were to be issued in one of the courts that eventually formed a part of the High Court of Justice. The procedure in a County Court, which was a creature of statute, was to issue a ‘summons’.
In 1999 the Woolf Reforms unified most of the procedure of the Supreme Court and the County Court in civil matters. These reforms ushered in the Civil Procedure Rules. Under these almost all civil actions (other than those connected with insolvency) are now begun by the completion of a ‘Claim Form’ as opposed to a ‘Writ’, ‘Originating Application’, or ‘Summons’.
The royal legal system revolved around a system of writs: a royal order, which authorized a court to hear a case and instructed a sheriff to force the accused to appear. The writ or order had a special name and stated certain facts. For example to recover personal property, the plaintiff would get a writ of Replevin. One of the most important writs was the writ of Right in which the plaintiff sought title to property via a claim of hereditary descent. As the basis of the economy and social structure land disputes were key issues in medieval England and this writ is secured in Magna Carta.
The King to the sheriff, greeting. Command [praecipe=Latin for right] N. that justly and without delay he render to R. one hide [about 120 acres] of land in such a vill [a township], whereof the said R. complains that the said N. deforces [wrongfully take possession of] him. In addition, if he does not do this, summon him by good summoners that he is before me or my justices on the morrow of the second Sunday after Easter at such a place to show why he did not do it. In addition, have there the summoners and this writ.
Originally, writs were reserved for special cases because most cases were heard in the eye. However, the trend became to create new writs so that the royal courts could hear more cases. In 1189, there were about 40 writs, by the time of Edward I (1272-1307) there were more than 400. In the 1300’s the number of writs became fixed and if a writ didn’t fit the facts of a particular case it would be thrown out of court. Thus the maxim “no writ, no remedy.” In order to find out if you had a case you needed to consult the register of writs which listed all the writs available.
What happened was really a historical accident; writs were originally very rigid because the royal court could only hear certain types of cases, the bulk of the disputes were settled in local courts.<href=”#_ftn19″ name=”_ftnref19″ title=””>[19] However, when the royal courts became the places where every day disputes were heard the old writ system was still rigidly in place. As a result many common legal problems were cut off from the legal system. This of course didn’t deter the ingenious Englishman who then proceeded to invent a complex system of legal fictions to get his case into court.
The “prerogative” writs are a subset of the class of writs, those that are to be heard ahead of any other cases on a court’s docket except other such writs. The most common of the other such prerogative writs are habeas corpus, quo warranto, prohibito, mandamus, procedendo, and certiorari.
The due process for petitions for such writs is not simply civil or criminal, because they incorporate the presumption of nonauthority, so that the official who is the respondent has the burden to prove his authority to do or not do something, failing which the court has no discretion but to decide for the petitioner, who may be any person, not just an interested party. In this they differ from a motion in a civil process in which the burden of proof is on the movant, and in which there can be an issue of standing. From English law writ provision expand to many countries.
UNITED STATES OF AMERICA
Early law of the United States inherited the traditional English writ system, in the sense of a rigid set of forms of relief that the law courts were authorized to grant. The All Writs Act (28 U.S.C. § 1651) authorizes United States federal courts to “issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.” <href=”#_ftn20″ name=”_ftnref20″ title=””>[20]However, the Federal Rules of Civil Procedure, adopted in 1938 to govern civil procedure in the United States district courts, provide that there is only one form of action in civil cases, and explicitly abolish certain writs by name. Relief formerly available by a writ is now normally available by a lawsuit (civil action) or a motion in a pending civil action. Nonetheless, a few writs have escaped abolition and remain in current use in the U.S. federal courts:
1. The writ of habeas corpus, usually used to test the legality of a prisoner’s detention, has expressly been preserved. In the United States federal courts, the writ is most often used to review the constitutionality of criminal convictions rendered by state courts.
2.By statute, the Supreme Court of the United States uses the writ of certiorari to review cases from the United States courts of appeals or from the state courts.
3.In extraordinary circumstances, the United States court of appeals can use the common-law writ of prohibition under the All Writs Act to control proceedings in the district courts.
4.Some courts have held that in rare circumstances in a federal criminal case, a United States district court may use the common-law writ of error coram nobis under the All Writs Act to set aside a conviction when no other remedy is available.
5.The United States district courts normally follow state-court practice with respect to certain provisional remedies and procedures for enforcement of civil judgments, which may include writs of attachment and execution, among others.
6.Certain other writs are available in theory in the United States federal courts but are almost never used in practice. In modern times, the All Writs Act is most commonly used as authority for federal courts to issue injunctions to protect their jurisdiction or effectuate their judgments.
The situation in the courts of the various U.S. states varies from state to state but is often similar to that in the federal courts. <href=”#_ftn21″ name=”_ftnref21″ title=””>[21]Some states continue to use writ procedures, such as quo warranto, that have been abolished as a procedural matter in federal courts.
In an attempt to purge Latin from the language of the law, California law has for many years used the term writ of mandate in place of writ of mandamus, and writ of review in place of writ of certiorari. Early efforts to replace writ of habeas corpus with writ of have the body never caught on. Other writs we may see:
Writ of Bodily Attachment: A writ commanding law enforcement to physically bring in a person in contempt of court. Evidently, you cannot get out of this writ just by paying the fine, the court can hold you up to 48 hours to meet with the person issuing the writ directly.
The primary means by which a case comes before the United States Supreme Court. Litigants who seek review by the Supreme Court petition the Court for the writ, and if granted, the case comes before the Court for disposition. The party seeking review is known as the petitioner, and the opposing party is the respondent. The Supreme Court, like any court, must have jurisdiction before it can decide a case. Its jurisdiction is determined by Article III of the Constitution and by congressional statute. The Certiorari jurisdiction is given to the Court by Congress, accounts for the vast majority of cases.
In addition to certiorari, there are four other ways a case can come before the court: by original jurisdiction, on appeal, by certification, or by an extraordinary writ. The last two are rarely used. Appeals and cases of original jurisdiction have mandatory review in the Supreme Court, whereas the decision to grant certiorari, or “cert,” is solely at the discretion of the justices.<href=”#_ftn22″ name=”_ftnref22″ title=””>[22] Article III of the Constitution identifies the cases that qualify for original jurisdiction, and Congress has established categories of cases that qualify as appeals. The terminology can be a bit confusing because the word appeal is commonly and generically used to mean taking a case to a higher court for review. Technically, however, when a case is “on appeal” before the U.S. Supreme Court, it means that Congress has mandated review for this type of case. Since 1988, however, most categories of appeals have been eliminated. Therefore, except for cases of original jurisdiction, which usually constitute about one or two cases a year.
The Court has not always had broad discretion in case selection. Before 1925 most of its docket consisted of cases for which review was obligatory. The workload had grown to such an extent, however, that on 13 February 1925, an act known as the “Judges’ Bill” was passed. The most ardent supporter of the legislation was Chief Justice William Howard Taft.
The act greatly expanded the Court’s certiorari jurisdiction, which meant that its docket was to become largely discretionary. <href=”#_ftn23″ name=”_ftnref23″ title=””>[23]By the 1970s, certiorari accounted for about 90 percent of the Court’s workload. Appeals constituted about 10 percent of the Court’s docket until the 1988 legislation effectively eliminated most categories of appeals (see Judicial Improvements and Access to Justice Act). Even prior to 1988, however, the Court often finessed its appellate jurisdiction by “dismissing” appeals.
Of the approximately five thousand cases a year for which review by the Supreme Court is sought, fewer than 5% percent are granted certiorari. If a case is denied certiorari, the decision below stands, and with a few exceptions, there are no further avenues of review.
As a matter of law, a denial of cert has no meaning other than that the particular case will not be reviewed. It does not mean that the Court believes that the case has been correctly decided in the court below, nor may lawyers cite a denial of cert as evidence of the Court’s position on the issue. <href=”#_ftn24″ name=”_ftnref24″ title=””>[24]Some observers, however, argue that a denial of cert can be read to mean something more, which of course it may, although the Court continues to disavow such a position.
A review on writ of certiorari is not a matter of right, but of judicial discretion, and will be granted only when there are special and important reasons therefore.
With one exception, the criteria that follow the statement offer little guidance as to what the Court really looks for when selecting a case. In short, the rule is almost a tautology: cases are important enough to be reviewed by the justices when the justices think they are important. Or as Justice Frank Murphy put it, “Writs of certiorari are matters of grace” (Wade v. Mayo, 1948, p. 680). <href=”#_ftn25″ name=”_ftnref25″ title=””>[25]The one criterion in rule 10 that is helpful in determining whether or not a case will be deemed “certworthy” is when federal circuit courts of appeals are in conflict over an issue. Though a “circuit split” does increase the likelihood that a case will be reviewed, it does not guarantee review. It is not always obvious when circuit courts are in conflict. Moreover, the Court often prefers to wait for additional courts of appeals to weigh in on a matter before it decides to resolve it. Nevertheless, the justices do see resolving conflicts among the circuit courts as one of their primary responsibilities.
Deciding what to decide is one of the most important functions performed by the Supreme Court. Given the difficulty of access to the Court, understanding how and why one case is selected and another rejected is important both in determining how the Court works and how access is achieved. Agenda setting has both behavioral and normative implications.
To the extent that there has been scholarly interest in agenda setting beyond jurisdictional and procedural questions, it has mostly been by political scientists. They have focused much of their research on trying to determine factors that increase the likelihood of review. <href=”#_ftn26″ name=”_ftnref26″ title=””>[26]Results have been mixed, although there seems to be credible evidence to suggest that the likelihood of review is enhanced if there is a genuine conflict among circuit courts of appeal; or, if the United States is the petitioning party in the case; or if an amicus brief is filed urging a grant. Likewise, it has been demonstrated that a justice’s vote on certiorari is related to his or her later vote on the merits, that is, the decision to affirm or reverse the decision below.
If four justices vote in favor, certiorari is granted. This “rule of four” is an informal rule of long standing developed and adhered to by the justices. Cert votes are not made public. Some justices have recorded cert votes and left them in their private papers, but usually it is impossible to know how the justices voted. From time to time, a justice will feel strongly enough about a case to note publicly a dissent from the denial of certiorari. This may be accompanied by an opinion outlining why the case should have been taken. Some justices, however, disapprove of any public airing of cert votes and refuse to write dissents from denials. <href=”#_ftn27″ name=”_ftnref27″ title=””>[27]Dissents from denial of cert are uncommon except that Justices William Brennan and Thurgood Marshall always noted that they would grant cert in cases involving the death penalty because they believed capital punishment is unconstitutional.
In law, a writ issued by a superior court for the reexamination of an action of a lower court. The writ of certiorari was originally a writ from England’s Court of Queen’s (King’s) Bench to the judges of an inferior court.
It was later expanded to include writs from the equity (chancery) courts. In the U.S., certiorari is the most common means by which cases from the United States Courts of Appeals are reviewed by the Supreme Court of the United States. For the Supreme Court to issue a writ of certiorari, at least four justices must agree to hear the case.
The U.S. Supreme Court has the authority, given by Congress (according to Article a lower court to prepare the record of a case and submit it to the Supreme Court for review. The Latin term certiorari means “to be informed.” A party to a case seeking review by the Supreme Court submits a petition to the Court for a writ of certiorari. If at least four justices vote in favor of it,
Each year approximately 5,000 petitions are sent to the Court seeking a writ of certiorari. Less than 5 percent are granted “cert.” <href=”#_ftn28″ name=”_ftnref28″ title=””>[28]If the writ of certiorari is denied, the decision of the lower court is sustained. However, a denial of “cert.” cannot be used as evidence of the Supreme Court’s opinion on the issue in the case.
The rules of the Court provide general guidelines for accepting or rejecting appeals from lower courts. For example, the Court will likely accept a case for review if there appears to be an error in lower court proceedings, if the issue in the case involves an unsettled question of federal law, or if there are conflicting opinions on the case from the highest state court and a federal court of appeals.
<href=”#_ftn29″ name=”_ftnref29″ title=””>[29]According to Rule 10 of the Rules of the Supreme Court of the United States, “A review on writ of certiorari is not a matter of right, but of judicial discretion, and will be granted only when there are special and important reasons therefor.” Making decisions about which cases to review, and which ones to reject, is among the most important judgments the Court makes. These decisions go a long way toward setting the agenda of the Court and determining who will and will not have access to it. Although there are other means by which a case comes before the U.S. Supreme Court, the writ of certiorari is the primary means for bringing a case to the Court for its review and disposition.
At common law, an original writ or order issued by the Chancery or King’s Bench, commanding officers of inferior courts to submit the record of a cause pending before them to give the party more certain and speedy justice.
A writ that a superior appellate court issues in its discretion to an inferior court, ordering it to produce a certified record of a particular case it has tried, in order to determine whether any irregularities or errors occurred that justify review of the case. A device by which the Supreme Court of the United States exercises its discretion in selecting the cases it will review.
Certiorari is an extraordinary prerogative writ granted in cases that otherwise would not be entitled to review.<href=”#_ftn30″ name=”_ftnref30″ title=””>[30] A petition for certiorari is made to a superior appellate court, which may exercise its discretion in accepting a case for review, while an appeal of a case from a lower court to an intermediate appellate court, or from an intermediate appellate court to a superior appellate court, is regulated by statute. Appellate review of a case that is granted by the issuance of certiorari is sometimes called an appeal, although such review is at the discretion of the appellate court.
A party, the petitioner, files a petition for certiorari with the appellate court after a judgment has been rendered against him in the inferior court. The petition must specifically state why the relief sought is unavailable in any other court or through any other appellate process, along with information clearly identifying the case and the questions to be reviewed, the relevant provisions of law to be applied, a concise statement of facts relating to the issues, and any other materials required by statute. <href=”#_ftn31″ name=”_ftnref31″ title=””>[31]The rules of practice of the appellate court to which the petitioner has applied for relief govern the procedure to be observed. For example, a petition for statutory certiorari made to the Supreme Court of the United States must be prefaced by a motion for leave, or permission, to file such a petition. If a common-law writ is sought, however, the petitioner need only file a petition for certiorari.
After evaluating the petition, the appellate court will decide whether to grant or deny certiorari. Certiorari is issued, designated as “cert. granted,” when the case presents an issue that is appropriate for resolution by the court and it is in the public interest to do so, such as when the issue has been decided differently by a variety of lower courts, thereby creating confusion and necessitating a uniform interpretation of the law. Certiorari is denied when the appellate court decides that the case does not present an appropriate matter for its consideration. In the practice of the Supreme Court, if a petition has been granted certiorari as a result of a mistake, such as where the petitioner misrepresents the case or the case has become moot, the Court will dismiss the petition as “having been improvidently granted,” which has the same effect as an initial denial of the petition. Practically speaking, this rarely occurs.
UNITED STATES LAW
In the United States, certiorari is the writ that an appellate court issues to a lower court in order to review its judgment for legal error and review, where no appeal is available as a matter of right. Since the Judiciary Act of 1925, most cases cannot be appealed to the U.S. Supreme Court as a matter of right; therefore, a party who wants that court to review a decision of a federal or state court files a “petition for writ of certiorari” in the Supreme Court.<href=”#_ftn32″ name=”_ftnref32″ title=””>[32] If the Court grants the petition (see Procedures of the Supreme Court of the United States), the case is scheduled for the filing of briefs and for oral argument.
Four of the nine Justices are required to grant a writ of certiorari, referred to as the “rule of four.” <href=”#_ftn33″ name=”_ftnref33″ title=””>[33]The great majority of cases brought to the Supreme Court are denied certiorari (approximately 7,500 petitions are presented each year, but just 80 to 150 are typically granted), because the Supreme Court is generally careful to choose only cases in which it has jurisdiction and which it considers sufficiently important (especially cases involving deep constitutional questions) to merit the use of its limited resources.
The granting of a writ does not necessarily mean that the Supreme Court has found anything wrong with the decision of the lower court. Granting a writ of certiorari means merely that four of the Justices think that the circumstances described in the petition are sufficient to warrant the full Court reviewing the case and the lower court’s action. Conversely, the legal effect of the Supreme Court’s denial of a petition for a writ of certiorari is commonly misunderstood as meaning that the Supreme Court approves the decision of a lower court.
However, such a denial “imports no expression of opinion upon the merits of the case, as the bar has been told many times.” Missouri v. Jenkins, 515 U.S. 70 (1995). In particular, a denial of a writ of certiorari means that no binding precedent is created, and that the lower court’s decision is authoritative only within its region of jurisdiction.
Certiorari is sometimes informally referred to as cert, and cases warranting the Supreme Court’s attention as certworthy. One situation where the Supreme Court sometimes grants a writ of certiorari is when the federal appeals courts in two (or more) federal judicial circuits have ruled different ways in similar situations, and the Supreme Court wants to resolve that “circuit split” about how the law is supposed to apply to that similar kind of situation. Issues of this type are often called “percolating issues.”
STATE COURTS
Some U.S. state court systems use the same terminology, but in others, writ of review, <href=”#_ftn34″ name=”_ftnref34″ title=””>[34]leave to appeal, or certification for appeal is used in place of writ of certiorari as the name for discretionary review of a lower court’s judgment. A handful of states lack intermediate appellate courts; their supreme courts operate under a mandatory review regime, in which the supreme court must take all appeals in order to preserve the loser’s traditional right to one appeal.<href=”#_ftn35″ name=”_ftnref35″ title=””>[35] However, mandatory review remains in place, in all states where the death penalty exists; in those states, a sentence of death is automatically appealed to the state’s highest court.
In the administrative law context, the common-law writ of certiorari was historically used by lower courts in the U.S. for judicial review of decisions made by an administrative agency after an adversarial hearing. Some states have retained this use of the writ of certiorari in state courts, while others have replaced it with statutory procedures. In the federal courts, this use of certiorari has been abolished and replaced by a civil action under the Administrative Procedure Act in a United States district court or in some circumstances a petition for review in a United States court of appeals.
INDIA
Under Indian Legal System jurisdiction to issue ‘prerogative writs’ is given to Supreme Court and High Courts of Judicature of all Indian states. Law relating to the writ jurisdiction is provided in the Constitution of India. Supreme Court of India, which is the apex court in the country, can issue writ under Article 32 of the Constitution. <href=”#_ftn36″ name=”_ftnref36″ title=””>[36]While for High Courts, which are the apex court in any state, can issue writ under Article 226 and 227 of the Constitution of India. ‘Writ’ is eminently designed by the makers of the Constitution, and in the same way it is developed very widely and efficiently by the courts in India. Constitution of India broadly provides for five kinds of ‘prerogative writs’, namely, Habeas Corpus, Certiorari, Mandamus,
Quo Warranto and Prohibition. Basic details of which are as follows:
1.The writ of prohibition is issued by a higher court to a lower court prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. In doing so, the higher court seeks a transfer of the case to itself
2.The writ of habeas corpus means ‘let us have the body’.<href=”#_ftn37″ name=”_ftnref37″ title=””>[37] It is a writ issued to a detaining authority to produce the detained person in court to know cause for detention. If the detention is found to be illegal, the court issues an order to set the person free.
3.The writ of certiorari is one of the writs issued by the High Court or the Supreme court to protect the Fundamental rights of the citizens. <href=”#_ftn38″ name=”_ftnref38″ title=””>[38]It is issued to a lower court directing it that the record of a case be sent up for review with all the files, evidence and documents with an aim to overrule the judgment of the lower court.
4.The writ of mandamus is an order of a court of law issued to a subordinate court or an officer of government or a corporation or any other institution commanding the performance of certain acts or duties.
5.The writ of quo warranto is issued against a person who claims or usurps a public office. Through this writ the court inquires ‘by what authority’ the person supports his or her claim.
A writ, direction or order may be issued by the High Court under Article 226 to a person or authority amenable to the Court’s jurisdiction either by residence or location within the State, <href=”#_ftn39″ name=”_ftnref39″ title=””>[39]even if the petitioner and other parties are from other States.
This power can be exercised, under Article 226(2) of the Constitution, though the person or authority is outside the territories in relation to which the High Court has jurisdiction, provided the cause of action arises, wholly or in part, within such territories.
Under Article 226 of the Constitution, the High Court has the power to issue not only writs of certiorari, prohibition and mandamus, but also other writs, directions and orders. In other words, even if the case is one in which a High Prerogative Writ proper as known in England cannot be issued, the Indian High Court has jurisdiction to issue such directions and orders as may be necessary to meet the ends of justice, in respect of administrative action and judicial or quasi-judicial action.
Similar powers to issue writs, directions and orders are conferred on the Supreme Court under Article 32 of the Constitution, but they are restricted to the enforcement of fundamental rights. The fact that an inappropriate writ has been asked for is not a ground for refusing to grant appropriate relief.
Section 293 of this Act cannot override Article 32 or Article 226 of the Constitution, and therefore in appropriate cases writs, directions or orders under Article 32 or Article 226 may be issued even in respect of something “in good faith done or intended to be done under this Act”.
The question of constitutional validity or vires of a provision of the Act has been held by the Supreme Court to be foreign to the jurisdiction of authorities appointed under this Act. <href=”#_ftn40″ name=”_ftnref40″ title=””>[40]Therefore, such questions can be decided only in a suit or a writ petition.
IN INCOME-TAX CONTEXTS
The High Court may issue a writ of prohibition to prohibit the income-tax authorities from acting in excess of their jurisdiction, or a writ of mandamus or an order under Article 226 of the Constitution to compel the income-tax authorities to perform their statutory duties or to refund moneys wrongfully recovered from the petitioner.
Further, <href=”#_ftn41″ name=”_ftnref41″ title=””>[41]the High Court may issue a writ of certiorari to quash quasi-judicial proceedings taken by the income-tax authorities without jurisdiction or in excess of jurisdiction, or to quash an order that is vitiated by an error apparent on the face of the record or which is passed in violation of the principles of natural justice, or to quash a summons or order that has been issued without application of mind. The Court will interfere by a writ if the action is mala fide or arbitrary or does not comply with the statutory requirements, or if the action amounts to merely an exercise in futility.
The remedy under Article 226 by way of judicial review is purely a discretion. Where the petitioner fails to avail of the effective statutory alternative remedy within the prescribed time due to his own fault, he cannot be permitted to seek remedy under Article 226 of the Constitution of India (A.V. Venkateswaran Collector of Customs v. Ramchand Sob raj Wadhwani (AIR 1961 SC 1506).
In Collector of Central Excise v. Dunlop India Ltd (1 SCC 260), the Supreme Court held that Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the vires of the statute is in question or where private or public wrongs are inextricably linked and the prevention of public injury and the vindication of public justice require it, that recourse may be had to Article 226 of the Constitution. <href=”#_ftn42″ name=”_ftnref42″ title=””>[42]A writ will not ordinarily be issued by the Court where the impugned order, not patently erroneous, is made by an authority within his jurisdiction.
However, where the defect of jurisdiction is apparent on the face of the proceedings, or there is an abuse of power, a writ of prohibition or other appropriate writ or order will be issued despite some delay in filing the petition or the existence of an alternative remedy, e.g. the right of appeal.
Likewise, the existence of an alternative remedy is not an absolute bar to the issue of a writ of certiorari and a writ of mandamus would not be refused merely because the assessed could have filed a suit.
<href=”#_ftn43″ name=”_ftnref43″ title=””>[43]A writ of prohibition or mandamus may be issued to restrain recovery proceedings in pursuance of an assessment order made without or in excess of jurisdiction, even if such a plea as to jurisdiction was not raised in the assessment proceedings. Where an order is quashed by the Court for a reason other than want of fundamental jurisdiction, in appropriate cases the Court may direct the authority concerned to pass a fresh order.
COURT REVIEW OF ORDER
The High Court is entitled to review its order passed in a writ petition. A second writ petition challenging the same order on different grounds would not normally be entertained. Dismissal of a writ petition by the High Court on merits — whether after contest, or without notice to the other side but by a speaking order — bars a petition to the Supreme Court under Article 32; the only remedy of the petitioner is to appeal against the order of dismissal. If the Court rejects a writ petition at the admission stage or after issuing a rule nisi, it should record reasons for such rejection.
The Madras High Court held in Aditanar Educational Institution v. Assistant Director of Income-tax (297 I.T.R. 376) that the relief under Article 226 of the Constitution of India can be granted in spite of the availability of alternate remedy under the statute, only based on undisputed facts. When the High Court finds that factual disputes are involved, it would not be desirable to deal with them in a writ petition.
PAKISTAN
Part II Chapter 1 of the Constitution of The Islamic Republic of Pakistan deals with the fundamental rights of a person. <href=”#_ftn44″ name=”_ftnref44″ title=””>[44]This part is also called the heart of the Constitution, which provides right to life and liberty, equality before law, freedom of speech and expression, liberty of thought belief and worship, cultural, education, right.
A writ can be filed before High Court or Supreme Court in case of infringement of the fundamental rights under Article 199 & Article 185 of the constitution of The Islamic Republic of Pakistan Supreme Court entertain writ only in those cases where there is violation of fundamental rights, <href=”#_ftn45″ name=”_ftnref45″ title=””>[45]however under Article 199 a writ petition can be filed in High Court even in case of infringement of legal rights.
Who can file a writ: Any citizen of Pakistan can file a writ petition, however, a foreigner can also file writ petition for enforcing his right to life and equality before law. Court can also issue writ in the interest of justice and public interest.
Types of Writs in Islamic Republic of Pakistan as follows.
1. Habeas Corpus
2. Mandamus
3. Prohibition
4. Certiorari
5. Quo warranto
HABEASCORPUS
Writ of Habeas Corpus is sought to enforce the right to life. When the life of a person is in peril this writ is sought. <href=”#_ftn46″ name=”_ftnref46″ title=””>[46]Normally this writ is issued in case of illegal detention. This writ can be issued even on a post card sent to the Judge by victim or his relatives.
MANDAMUS
Mandamus is sought for direction to the subordinate court/tribunal or government officer to perform mandatory duties correctly. Writ of mandamus is most popular writ, which is issued against the arbitrary, illegal acts of government officials including police officers, municipal bodies etc.
PROHIBITION
Prohibition is an extraordinary writ usually sought requesting an order from the Appellate Court that an inferior court tribunal be prohibited from undertaking further action on a case pending before it; commonly know as stay of proceeding.
CERTIORARI
Certiorari reviews and quashes the decision of an inferior court tribunal or other statutory body where such decision order is passed in utter violation of principle of natural justice or without jurisdiction. <href=”#_ftn47″ name=”_ftnref47″ title=””>[47]This writ is also sought in case of service related matter for quashing the decision of departmental enquiry proceeding and punishment imposed upon the delinquent employee.
QUO-WARRANTO
The writ of quo warranto enables enquiry into the legality of the claim which a person asserts, to an office or franchise and to oust him from such position if he is a usurper. The holder of the office has to show to the court under what authority he holds the office.