Report No. 58
Extent of power to issue writs
5.15. Consideration of this and other questions concerning writs involves a clarification of some vital points. It has been observed, with reference to the power to issue writs1,-
"Article 226 of the Constitution is not addressed to the Court in the language of an inexorable command. By it the Court is constituted the trustee of a high power for a high purpose maintaining equilibrity between the two antithetical off-springs of jus naturalia absolute, i.e. a Rights of Man.1 Its constitutional origins, its immense potentiality for good and harm alike counsel the Court to exercise the power with becoming prudence and reason, so that on the one hand, the State may not be unduly hampered in its legitimate domain, and on the other hand, the essential rights of man may not be abridged unnecessarily."
A delicate balance between the two aspects referred to above has, therefore, to be achieved.
1. Mustaq Hussain v. State of Uttar Pradesh, AIR 1960 All 559 (561), para. 18 (S.N. Dwivedi J.).
2. (Otto Gierkec Barker's Translation), Natural Law and the Theory of Society, 1500-1800-Beacon, B.C. Edi., pp. 41 and 113-114.
Back
