Evolution Of Writs
A writ is:
- An order or mandatory process in writing issued in the name of the sovereign or court or judicial officer commanding the person to whom it is directed to perform or refrain from performing an act specified therein (https://www.merriam-webster.com/dictionary/writ).
- An order issued by a court requiring that something be done, or giving authority to do a something specified (http://legal-dictionary.thefreedictionary.com/writ).
- Under common law, a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court (https://en.wikipedia.org/wiki/Writ).
Anglo-Saxon courts mark the start of the judicial history of UK, which consisted of meeting of men in villages and townships headed by Earls and Thegn from the district. There was a meeting of the whole folk called Shircfolk which was the final court of justice.
Then grew the institution of itinerant justices. These justices were appointed by the Crown and used to travel and hold ‘pleas’ and preside over Shire Courts in different parts of the country. The Court of King’s Bench was composed of Barons and high ecclesiastics with legislative, judicial and administrative functions, and was presided over by the Chief Justice. It was the highest common law tribunal of original jurisdiction and issued all original writs until its abolition in 1974. Great inconvenience was caused by itinerant justices who had no permanent place of sitting. This inconvenience was remedied by the Magna Carta and by establishing the Court of Common Pleas, which provided that they would no longer follow the King.
During the reign of William the Conqueror whose preliminary function was to collect and manage royal revenue, the board, with Chief Justice who presided over meetings to decide legal questions besides revenue matters, extended the jurisdiction of the court (these judicial assessors over the course of time became the Exchequer) and as a new exercise, superior courts in England could also issue writs.
In 1974 the Court of Chancery was established which issued writs independent of the King and his counsel. At the time of Queen Elizabeth, the Court of Queen’s Bench was established which also issued writs along with the ones by Court of Chancery.
With regards to the use and exercise of different kinds of writs, the Tudor period gained importance. In 1188 the principles of habeas corpus were acknowledged by Alfonso IX. The first example of the use of certiorari was found in printed records in a letter written in 1252, from Henry III to the mayor and commonalty of Bordeaux, expressing readiness to be informed of the grievances of his subjects in that city. In the 13th century, it was used to remove cases from local courts to Westminister even at the instance of private litigants. Writ of certiorari can be issued on the criminal as well as civil side in common law (1889 SW 870).
In the year 1355, the British Parliament passed a statute whereby it was declared that no man of whatever stake or condition should be put out of land or tenement, nor taken or imprisoned or indicted or put to death, without being brought to answer by due process of law. Bracton propounded the dictum that the King had two superiors. God and the law of writ of mandamus – which was used as a means for securing due performance of acts. In 1573 it was used to restore adult franchise of London’s citizens who were illegally deprived of it. In 1679 the Habeas Corpus Act secured the security of citizens from the false imprisonment (Bagg’s case 1615).
In the 17th and 18th centuries, the writs of habeas corpus, mandamus, certiorari and quo-warranto were given the names of prerogative writs as they were connected closely with the rights of the people.
The Judicature Act 1873 abolished the Court of Chancery and other courts and consolidated superior courts which exercised jurisdiction on the issuance of writs. In 1753 the East India Company set up Mayor’s Court at Madras, Bombay and Calcutta that ran side-by-side with native courts which administered justice under civil and criminal branches of law.
In the Indo-Pak subcontinent, the Presidency Courts at Calcutta, Madras and Bombay were established by the Indian High Court Act 1862. The local Supreme Court, as well as Saddar Diwani Adalat and Saddar Nizamat Adalat, were merged together.
The High Courts continued to exercise the power to issue prerogative writs within the limits of their respective original jurisdiction. They did not have the power to issue such writs upon Mofussil Courts or Tribunals or to persons outside the limits of the Presidency towns.
No other High Court except these High Courts were vested with the power to issue prerogative writs (Section 45 of the Specific Relief Act 1877) but this was not made applicable to Lahore High Court, Sindh Chief Court and Courts of Judicial Commissioner at Peshawar and Quetta (AIR 1927 Lah 513).
Section 491 of the Code of Civil Procedure was amended in 1923 and all High Courts were empowered to make order within their jurisdiction.
The Government of India Act was passed in 1935 which established a Federal Court which, to the exclusion of any other court, had original jurisdiction in disputes between the federation and provinces. It also had appellate jurisdiction over the judgment of High Courts.
The writs were a matter of late introduction into the scheme of law in the subcontinent. Prior to the amendment in 1954, the only provision in the law for the issuance of a writ was that in section 45 of the Specific Relief Act, which by expression was confined to the Presidency towns. But across the rest of the country and in matters not covered by section 45 in presidency towns as well, the position was that no court could issue a writ to the government or any public body, for the enforcement of public duties. The reason may be found in the fact that the subcontinent lay under foreign rule (PLD 1961 SC 237).
After the creation of Pakistan, the High Court of Dacca was the only court in the country empowered to issue writs under Section 45 of the Specific Relief Act 1877. Under the Independence Act of 1947, the Government of Pakistan adopted Government of India Act which was amended by adding section 223-A wherein every High Court of Pakistan was given authority to issue writs within their territorial jurisdiction including writs of habeas corpus, mandamus, prohibition, qua-warranto and certiorari. The Constitution of Pakistan was first framed in 1956, writs were issued under the 1962 Constitution and then under Constitutional Order 1981. Today, the 1973 Constitution exercises constitutional jurisdiction.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organisation with which he might be associated.
