Writ and Res Judicata

Topics: Common law, Law, Habeas corpus Pages: 25 (9129 words) Published: March 4, 2013


A “writ” is written court order which commands someone to do something or to refrain from doing something. This term originated in English common law where it was first used to describe a written command from the King. As such, a writ carried great weight and authority. Indian Constitution incorporated the term “writ” into its legal system as well.

The origin of writs in India goes back to the Regulating Act, 1773 under which Supreme Court was established at Calcutta. The charter also established other High courts and these High Courts had analogous power to issue writs as successor to the Supreme Court. The other courts which were established subsequently did not enjoy this power. 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.

The makers of the Constitution have adopted the English remedies in the Constitution under Articles 32 and 226. There has been specifically made provisions in the Constitution which empowers the Supreme Court and High Courts to issue writs in the nature of Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari. The fundamental rights which are inalienable sacrosanct in nature and character which were conceived in national and public interest could be illusory if there is no constitutional machinery provided for its enforcement. Unless such constitutional remedies for its enforcement is not provided the rights guaranteed by part III of the Constitution cannot be ever implemented by the citizens. Article 32 contained in Part III is itself a fundamental right given to the person under the Constitution. Similarly Article 226 of the Constitution is conferred on the High Courts to exercise its prerogative writs which can be issued against any person or body of person including the government. The distinction between the two remedies is very negligible. The remedy under Article 32 is confined to enforcement of fundamental rights whereas Article 226 is available not only against the enforcement of fundamental rights but also for any other purpose. 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.” Res Judicata is a phrase which has been evolved from a Latin maxim, which stand for „the thing has been judged , meaning there by that the issue before the court has already been decided by another court, between the same parties. Therefore, the court will dismiss the case before it as being useless. Res Judicata as a concept is applicable both in case of Civil as well as Criminal legal system.

The Doctrine of Res Judicata strives to strike a balance between the two largely separated poles. One pit assures an efficient judicial system that renders final judgments with certainty and prevents the inequity of a defendant having to defend the same claim or issue of law repeatedly. On the other hand, it protects the plaintiff's interest in having issues and claims fully and fairly litigated. A US Supreme Court Justice explained the need for this legal precept as follows: Federal courts have traditionally adhered to the related doctrines of res judicata (claim preclusion) and collateral estoppel (issue preclusion). Under Res Judicata, a final judgment...
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