The Constitution of India is the fountainhead from which all our laws derive their authority and force. This is next Article in the series on constitutional provisions in order to aid our readers in understanding them.
139. “Conferment on the Supreme Court of powers to issue certain writs.—Parliament may by law confer on the Supreme Court power to issue directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for any purposes other than those mentioned in clause (2) of Article 32.”
Provision for conferment on the Supreme Court of powers to issue certain writs was contained in both the Constitutional Adviser’s Draft Constitution of October 1947 (clause 97) as well as the Draft Constitution (February 1948) prepared by the Drafting Committee. Draft Article 115 read as follows:
“Parliament may, by law, confer on the Supreme Court power to issue directions or orders in the nature of the writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them for any purposes other than those mentioned in clause (2) of Article 25 (which relates to the enforcement of fundamental rights) of this Constitution.”
When the Constituent Assembly took up draft Article 115 for discussion on 27th May, 1949, Bakshi Tek Chand moved that for the words ‘or orders in the nature of the writs’ the words ‘orders or writs, including writs in the nature’ be substituted. He said that the draft Article limited the power of the Parliament to invest the Supreme Court with power to issue writs in the nature of those specifically mentioned and to none other. His amendment sought to make the Article more comprehensive so as to enable the Parliament to enact laws empowering the Supreme Court to issue writs, directions or orders including those mentioned in draft Article 115. He argued that in draft Article 25 (Article 32 of the Constitution) which dealt with the power of the Supreme Court to issue writs, with regard to justiciable fundamental rights, this phraseology had already been adopted.
Dr. Ambedkar moved that the words and brackets ‘(which relates to the enforcement of fundamental rights)’ be deleted, as the words were superfluous. The amendments of Bakshi Tek Chand and Dr. Ambedkar were adopted and draft Article 115 as amended was added to the Constitution. At revision stage it was re-numbered as Article 139 of the Constitution.
Under Article 32 of the Constitution, the Supreme Court may be moved by appropriate proceedings for the enforcement of fundamental rights by issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari as may be appropriate. Article 139 empowers the Parliament to confer by law additional power on the Supreme Court to issue directions, orders or writs for purposes other than the enforcement of the fundamental rights something that was under the scheme of the Constitution reserved for the High Courts (Article 226).
Source: Dr Subhash C Kashyap, Constitutional Law of India
