Table of Contents
What are Writs
Writs are written order from the Supreme Court or High Court that commands constitutional remedies for Indian Citizens against the violation of their fundamental rights.
Article 32 in the Indian Constitution deals with constitutional remedies that an Indian citizen can seek from the Supreme court of India and the High Court against the violation of his/her fundamental rights. The same article gives the Supreme Court power to issue writs for the enforcement of rights whereas the High Court has the same power under Article 226.
Types of Writs
The five types of writs are:
- Habeas Corpus
- Mandamus
- Prohibition
- Certiorari
- Quo-Warranty
Habeas Corpus
The Latin term habeas corpus means ‘you must have the body ‘ and a writ for securing liberty was called habeas corpus ad subjiciendum. This writ is used to enforce the fundamental right of individual liberty against unlawful detention.
The principal aim of the writ is to ensure swift judicial review of alleged unlawful detention on liberty or freedom of the prisoner or detention. The great value of the writ is that it enables immediate determination of the right of a person to his freedom. Under Art. 22, a person arrested is required to be produced before a magistrate within 24 hours of his arrest, and failure to do so would entitle the arrested person to be released.
Habeas corpus cannot be granted where a person has been committed to custody under an order from a competent court when prima facie the order does not appear to be without jurisidiction or wholly illegal. Writ of habeas corpus can be invoked not only against the state but also against any individual who is holding any person in unlawful custody or detention
- The Supreme Court or High Court can issue this writ against both private and public authorities.
- Habeas Corpus can not be issued in the following cases:
- When detention is lawful
- When the proceeding is for contempt of a legislature or a court
- Detention is by a competent court
- Detention is outside the jurisdiction of the court
Mandamus
Mandamus is a command issued by a court to an authority directing it to perform a public duty imposed upon it by law.
The literal meaning of this writ is ‘We command.’ This writ is used by the court to order the public official who has failed to perform his duty or refused to do his duty, to resume his work. Besides public officials, Mandamus can be issued against any public body, a corporation, an inferior court, a tribunal, or a government for the same purpose.
For example, when a body omits to decide a matter that it is bound to decide, it can be commanded to decide the same.
In Bombay municipality v. Advance Builders, the court directed the municipality to implement a planning scheme that was prepared by it and approved by the Government under the relevant statute but on which no action was taken for a considerable time
- Unlike Habeas Corpus, Mandamus cannot be issued against a private individual
- Mandamus can not be issued in the following cases:
- To enforce departmental instruction that does not possess statutory force
- To order someone to work when the kind of work is discretionary and not mandatory
- To enforce a contractual obligation
- Mandamus can’t be issued against the Indian President or State Governors
- Against the Chief Justice of a High Court acting in a judicial capacity
Prohibition
A writ of prohibition is normally issued when an inferior court or tribunal (a) proceeds to act without jurisdiction or in excess of the jurisdiction (b) proceeds to act in violation of rules of natural justice or (c) proceeds to act under a law which is itself ultra vires or unconstitutional or (d) proceeds to act in contravention of fundamental rights.
The literal meaning of ‘Prohibition’ is ‘To forbid.’ A court that is higher in position issues a Prohibition writ against a court that is lower in position to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. It directs inactivity.
- Writ of Prohibition can only be issued against judicial and quasi-judicial authorities.
- It can’t be issued against administrative authorities, legislative bodies, and private individuals or bodies
Certiorari
The literal meaning of the writ of ‘Certiorari’ is ‘To be certified’ or ‘To be informed.’ This writ is issued by a court higher in authority to a lower court or tribunal ordering them either to transfer a case pending with them to itself or quash their order in a case. It is issued on the grounds of an excess of jurisdiction or lack of jurisdiction or error of law. It not only prevents but also cures mistakes in the judiciary.
- Pre-1991: The writ of Certiorari used to be issued only against judicial and quasi-judicial authorities and not against administrative authorities
- Post-1991: The Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting the rights of individuals
- It cannot be issued against legislative bodies and private individuals or bodies.
Quo-Warranto
The literal meaning of the writ of ‘Quo-Warranto’ is ‘By what authority or warrant.’ Supreme Court or High Court issue this writ to prevent the illegal usurpation of a public office by a person. Through this writ, the court enquires into the legality of a claim of a person to a public office
Quo warranto prevents illegal usurpation of public office by an individual. the necessary ingredients to be satisfied by the court before issuing a writ is that the office in question must be public, created by the constitution or law and the person holding the office is not legally qualified to hold the office in clear infringements of provisions of the constitution or the law.
It is the person against whom a writ of quo warranto is directed, who is required to show by what authority the person is entitled to hold the office. While issuing such a writ, the High court merely makes a public declaration of the illegality of the appointment and will not consider other factors, which may be relevant for the issuance of a writ of certiorari
- Quo-Warranto can be issued only when the substantive public office of a permanent character created by a statute or by the Constitution is involved
- It can’t be issued against private or ministerial office
Note: This writ gives the right to seek redressal to any individual other than the aggrieved person