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| Administrative law |
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| Grounds forjudicial review |
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"Prerogative writ" is a historical term for awrit (official order) that directs the behavior of another arm of government, such as an agency, official, or other court.[1] It was originally available only tothe Crown underEnglish law, and reflected the discretionary prerogative and extraordinary power of the monarch. The term may be considered antiquated, and the traditional six comprising writs are often called theextraordinary writs and described asextraordinary remedies.[2]
Six writs are traditionally classified as prerogative writs:[2]
Additionally,scire facias, one of the extraordinary writs, was once known as a prerogative writ.[3]
The prerogative writs are a means by which the Crown, acting through its courts, effects control over inferior courts or public authorities throughout the kingdom. The writs are issued in the name of the Crown, who is the nominalplaintiff, on behalf of the applicant.
The prerogative writs other thanhabeas corpus are discretionary remedies, and have been known asprerogative orders inEngland and Wales since 1938. The writs ofquo warranto andprocedendo are now obsolete, and the orders ofcertiorari,mandamus andprohibition are under the newCivil Procedure Rules 1998 known as "quashing orders", "mandatory orders" and "prohibiting orders" respectively.
The writ ofhabeas corpus is still known by that name.
The declaration of fundamental rights would be meaningless unless these rights can be enforced at the instance of the persons on whom they are conferred. The Constitution itself has laid down the following provisions for the enforcement of the fundamental rights.
Article 12 has defined "State" to include the Government and Parliament of India, and the Government and Legislature of the States, and all local or other authorities within the territory of India or under the control of the Government of India. The expression "other authorities" has been interpreted to cover even business organisations like LIC and therefore such organisations also are amenable to the writ jurisdiction of the courts.
Article 199 of the Constitution confers wide powers of judicial review on Provincial High Courts in Pakistan. As compared to powers conferred upon theSupreme Court of Pakistan under Article 184(3) of the Constitution, the powers under Article 199 of the Constitution to the High Court are wider and varied.
The orders which a High Court may issue under Article 199 are also known as writs. They are the writs of prohibition,mandamus,certiorari,habeas corpus andquo warranto.
Mr. Justice Rustam Kayani, the former Chief Justice of West Pakistan High Court was a great admirer of the writ jurisdiction. At the time of his installation as Chief Justice in 1958, he emphasised: "Mandamus and Certiorari are flowers of paradise and the whole length and breadth of Pakistan is not wide enough to contain their perfume".[citation needed]
In the United States federal court system, the issuance of writs is authorized by theAll Writs Act (28 U.S.C. § 1651). The language of the statute was left deliberately vague in order to allow the courts flexibility in determining what writs are necessary "in aid of their jurisdiction". Use of writs at the trial court level has been greatly curtailed by the adoption of theFederal Rules of Civil Procedure and itsstate court counterparts, which specify that there is "one form of action".
TheSupreme Court of the United States grantscertiorari, while moststate supreme courts grantreview.
Mandamus has been replaced in theUnited States district courts[citation needed] and many state trial courts byinjunction. In the federal system, it is generally available only to the federal courts of appeals,[citation needed] which issue writs of mandamus to lower courts and administrative hearing panels, while some state systems still allow trial courts to issue writs ofmandamus ormandate directly to government officials.
Prohibition is also generally limited to appellate courts, who use it to prevent lower courts from exceeding their jurisdiction.
