This article is presented by Himani Sharma, CS Finalist from Institute of Company Secretaries of India
Anyone whose rights are affected is empowered to seek writs from the Supreme court under Article 32 and High courts under Article 226. However, under Article 32 Supreme Court can issue Writs only in the case of violations of Fundamental Rights. Writs have been borrowed in India from England where they had a long chequered history of development and consequently have gathered a number of technicalities. Power to issue writs is primarily a provision made to make available the Right to Constitutional Remedies to every citizen. The right to constitutional remedies as we know is a guarantor of all other fundamental rights available to the people of India. In addition to the above, the constitution also provides for the parliament to confer on the supreme court power to issue writs, for the purpose other than those mentioned above. Similarly, High courts in India are also empowered to issue writs for the enforcement of any of the rights conferred by Part III and for any other purpose.
TYPES OF WRITS UNDER THE INDIAN CONSTITUTION
1. Writ of Habeas Corpus:
The writ of “Habeas corpus” is a remedy available to a person who is confined without legal justification. The words habeas corpus literally means “to have body”. By this writ the court directs the person or authority who has detained another person to bring the body i.e. prisoner before the court so as to enable the court to decide the validity , jurisdiction or justification for such 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 as to his freedom. Under Article 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. In such circumstances it is the duty of the police to make necessary efforts to see that the detention is got released but, if despite such efforts, if a person is not found, the police cannot be put under undue pressure to do impossible.
In Gopalan v.Government of India, the Supreme court ruled that the earliest date with reference to which the legality of detention may be examined is the date on which the application for the same is made to the court.
2. Writ of Quo Warranto:
The term quo warranto means “what is your authority” . The writ of quo warranto is used to judicially control executive action in the matter of making appointments to public offices under relevant statutory provisions. The writ is also used to protect a citizen from the holder of a public office to which he has no right . The writ calls upon the holder of a public office to show to the court under what authority he is holding the office in question. If he is not entitled to the office , the court may restrain him from acting in the office and may also declare the office to be vacant . The writ proceedings not only give a weapon to control the executive from making appointments to public office against law but also tend to protect the public from being deprived of public office to which it has a right.
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 a 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 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 issuance of a writ of certiorari.
3. Writ of Mandamus
Mandamus is a “command” issued by a court to an authority directing it to perform a public duty imposed upon it by law . For example , when a body omits to decide a matter which it is bound to decide , it can be commanded to decide the same.
Mandamus can be issued when the Government denies to itself a jurisdiction which it undoubtedly has under the law , or where an authority vested with a power improperly refuses to exercise it . The function of mandamus is to keep the public authorities within the limits of their jurisdiction while exercising public functions .Mandamus can be issued to any kind of authority in respect of any type of function; administrative , legislative , quasi-judicial , judicial. Mandamus is used to enforce the performance of public duties by public authorities. Mandamus is not issued when Government is under no duty under the law . When an authority fails in its legal duty to implement an order of a tribunal, mandamus can be issued directing the authority to do so. Thus , when the appellate transport tribunal accepted the applications of the petitioner for grant of permits, mandamus was issued to the concerned authority to issue the permits to the petitioner in terms or the tribunal order .Mandamus is issued to enforce a mandatory duty which may not necessarily be a statutory duty.
In Bombay municipality v. Advance Builders, the court directed the municipality to implement a planning scheme which was prepared by it and approved by the Government under the relevant statute but on which no action was taken for a considerable time.
4. Writ of Certiorari
It is a writ issued by Supreme Court and High Court to an inferior court forbidding the later to continue proceedings in excess of its jurisdiction.
All courts can issue the writ of certiorari throughout their territorial jurisdoction when the subordinate judicial authority acts:-
- without or in excess of jurisdiction or in
- Contravention of rules of natural justice or
- Commits an error apparent on the face of the record.
5. Writ of Prohibition
The writ of prohibition is issued by the Supreme Court or any High Court to an inferior court preventing the latter from upsurping jurisdiction which is not legally vested in it. It compels courts to act within their jurisdiction when a tribunal acts without or in excess of jurisdiction or in violation of rules or law.
The writ of prohibition is available only against judicial or quasi judicial authorities and is not available against a public officer who is not vested with judicial functions. If abuse of power is apparent this writ maybe prayed for as a matter of right and not a matter of discretion. The supreme court may issue this writ only in case of Fundamental Rights being affected by reason of jurisdictional defect in the proceedings. This writ is available during the pendency of the proceedings and before the order is made.
These are the five types of writs under the Indian Constitution that were issued by the Supreme court and High court under Article 32 and 226 of the constitution. Habeas corpus and Quo warranto being confined to specific situations, Certiorari and Mandamus are the two most commonly sought writs to control the actions of administrative bodies.
Although the object of both the writs of prohibition and of certiorari is the same, prohibition is available at an earlier stage whereas certiorari is available at a later stage i.e. Certiorari is issued after authority has exercised its powers.
Also read about the doctrine of election
Writs under the Indian Constitution Writs under the Indian Constitution Writs under the Indian Constitution Writs under the Indian Constitution Writs under the Indian Constitution Writs under the Indian Constitution Writs under the Indian Constitution Writs under the Indian Constitution Writs under the Indian Constitution Writs under the Indian Constitution Writs under the Indian Constitution Writs under the Indian Constitution Writs under the Indian Constitution