Writs under Constitution of India by Diksha Dubey @Lexcliq

Introduction

A writ petition can be termed as a formal written order issued by a judicial authority who possesses the authority to do so. The meaning of the word ‘Writs’ means command in writing in the name of the Court. It is a legal document issued by the court that orders a person or entity to perform a specific act or to cease performing a specific action or deed. In India, writs are issued by the Supreme Court under Article 32 of the Constitution of India and by the High Court under Article 226 of the Constitution of India.

Meaning of Writ

Fundamentally, a writ is a formal written order issued by anybody, executive or judicial, authorized to do so. In modern times, this body is generally judicial. Therefore, a writ can be understood as a formal written order issued by a Court having authority to issue such an order. Orders, warrants, directions, summons etc. are all essentially writs. A writ petition is an application filed before the competent Court requesting it to issue a specific writ.

Types of Writs under Indian Constitution

Fundamental Rights are contained in Part III of the Indian Constitution including the right to equality, right to life and liberty etc. Merely providing for Fundamental Rights is not sufficient. It is essential that these Fundamental Rights are protected and enforced as well. To protect Fundamental Rights the Indian Constitution, under Articles 32 and 226, provides the right to approach the Supreme Court or High Court, respectively, to any person who’s Fundamental Right has been violated. At the same time, the two articles give the right to the highest courts of the country to issue writs in order to enforce Fundamental Rights.

A) Writ of Habeas Corpus:-

The expression “Habeas Corpus” is a Latin term which means ‘to have the body’. If a person is detained unlawfully, his relatives or friends or any person can move the Court by filing an application under Article 226 in High Court or under Article 32 in Supreme Court for the writ of Habeas Corpus. The Court on being satisfied with the contents of the application, issues the writ. This writ is in the nature of an order calling upon the person who has detained another to produce the latter before the Court, in order to let the Court know on what ground he has been confined and to set him free if there is no legal justification for the confinement. The Court may also award exemplary damages. In Bhim Singh Vs State of Jammu& Kashmir, AIR 1986 SC 494, the Hon’ble Apex Court awarded the exemplary damages of Rs.50,000/-(At that time this was a very significant amount).
An application for habeas corpus can be made by any person on the behalf of the prisoner/detenu as well as the prisoner/detenu himself. Even a letter to the judge mentioning illegalities committed on prisoners in jail can be admitted. In Sunil Batra Vs Delhi Administration, AIR 1980 SC 1579, a convict had written a letter to one of the Judges of the Supreme Court alleging inhuman torture to a fellow convict. The late justice Krishna Iyer treated this letter as a petition of habeas corpus and passed appropriate orders. Courts can also act suo motu in the interests of justice on any information received by it from any quarter/source. The general principle is that a person illegally detained in confinement without legal proceedings is entitled to seek the remedy of habeas corpus.
However, the writ of habeas corpus is not issued in the following cases:
(i) Where the person against whom the writ is issued or the person who is detained is not within the jurisdiction of the Court.
(ii) To secure the release of a person who has been imprisoned by a Court of law on a criminal charge.
(iii) To interfere with a proceeding for contempt by a Court of record or by Parliament.

Thus writ of habeas corpus is a bulwark of personal liberty. I has been described as “a great constitutional privilege” or “ first security of civil liberty”. The most characteristic element of the writ is its peremptoriness i.e. a speedy and effective remedy for having the legality of detention of the person enquired and determined by the Court.

B) Mandamus:-

The expression ‘Mandamus’ is a Latin term which means “We Command”. Mandamus is a Judicial order issued in the form of a command to any Constitutional, Statutory or Non-Statutory authority asking to carry out a public duty imposed by law or to refrain from doing a particular act, which the authority is not entitled to do under the law. It is an important writ to check arbitrariness of an administrative action. It is also called ‘Writ of Justice’.

Mandamus demands some kind of activity on the part of the body or person to whom it is addressed. Thus, when a body omits to decide a matter which it is bound to decide, it can be commanded to decide the same. Where the Government denies to itself a jurisdiction which it has under the law or where an authority vested with the power improperly refuses to exercise it, mandamus can be issued. Thus, mandamus will not be issued unless the applicant has a legal right to the performance of legal duty of a public nature and the party against whom the writ is sought is bound to perform that duty.
The rule of Locus Standi is strictly followed in while issuing writ of mandamus. The petitioner has to prove that he has a right to enforce public duty in his favour. The petitioner can approach the High Court or Supreme Court for issuing the writ of mandamus on the following grounds:-
(i) Error of jurisdiction;
(a) Lack of jurisdiction
(b) Excess of jurisdiction
(ii) Jurisdictional facts;
(iii) Violation of the principles of natural justice i.e. principles of Rule against bias and Rule of Audi alterem partem;
(iv) Error of law apparent on the face of record
(v) Abuse of jurisdiction
It is a discretionary remedy and the High Court may refuse to grant mandamus where an alternative remedy is available for the redressal of the injury complained of. In the matter of enforcement of fundamental rights, however, the question of alternative remedy does not weigh so much with the Court since it is the duty of the High Court or the Supreme Court to enforce the fundamental rights. In India, mandamus will lie not only against officers who are bound to do a public duty but also against the Government itself as Article 226 and 361 provided that appropriate proceedings may be brought against the Government concerned. This writ is also available against inferior Courts or other Judicial bodies when they have refused to exercise their jurisdiction and thus to perform their duty.
Further, Mandamus will not be granted against the following persons:-
(i) The President or the Governor of a State, for the exercise and performance of the powers and duties of his Office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties.
(ii) Mandamus does not lie against a private individual or body whether incorporated or not except where the State is in collusion with such private party, in the matter of contravention of any provision of the Constitution or a Statute or a Statutory instrument.
(iii) It will not lie against the State legislature to prevent from considering enacting a law alleged to be violative of constitutional provisions.
(iv) It will not lie against an inferior or ministerial officer who is bound to obey the orders of his superiors
Thus, Writ of Mandamus is a general remedy whenever justice has been denied to any person.

C) Prohibition

The expression ‘prohibition’ literally means ‘to prohibit’. The Writ of Prohibition is a Judicial order issued by the Supreme Court or a High Court to an inferior Court or quasi-judicial body forbidding the latter to continue proceedings therein in excess of its jurisdiction or to usurp a jurisdiction with which it is not legally vested. Thus, object of the writ is to compel inferior courts to keep themselves within the limits of their jurisdiction.

Earlier, this writ was used to issue only to judicial and quasi-judicial bodies. But such requirement is no longer valid. With the expanding dimensions of natural justice and the requirement of fairness in administrative functions, the rigidity about prohibition has been liberalized. This writ can now lie to anybody, irrespective of the nature of function exercised by it, if any of the grounds on which the writ is issued is present.
The writ of prohibition can be issued on the following grounds:
(i) Absence or Excess of jurisdiction;
(ii) Violation of the principles of natural justice;
(iii) Unconstitutionality of a Statute;
(iv) Infraction of Fundamental Rights
Thus, writ of prohibition is available during the pendency of the proceedings and before the order is made. The object is to secure that the jurisdiction of an inferior court or tribunal is properly exercised and that it does not usurp the jurisdiction which it does not possess.

D) Certiorari

The expression “ certiorari” is a Latin word which means “ to certify”. This writ confers power on the Supreme Court and High Courts to correct illegality of their decisions. ‘Certiorari’ is a judicial order issued by the Supreme Court under Article 32 and/or by the High Court under Article 226 of the Constitution to an inferior Court or quasi-judicial or any administrative body to transmit to the Court of records of proceedings pending therein for scrutiny and decide the legality and validity of the orders passed by them. If the decision is bad in law, it is quashed.
The conditions necessary for the issue of the writ of certiorari are:-
(i) Any body of persons;
(ii) Having legal authority;
(iii) To determine questions affecting the rights of subjects;
(iv) Having the duty to act judicially;
(v) Act in excess of legal authority
The grounds on which the writ of certiorari may be issued are:
(a) Error of Jurisdiction
(i) Lack of jurisdiction
(ii) Excess of jurisdiction
(b) Abuse of jurisdiction
(d) Error of law apparent on the face of the record
(e) Violation of principles of natural justice
The purpose of the writ of certiorari is not only negative in the sense that it is used to quash an action but it contains affirmative action as well. It is preventive as well as curative in nature. The power of judicial review is not restricted where glaring injustice demands affirmative action.

E) Writ of Quo Warranto:- The Writ of ‘Quo Warranto’ questions the title as to the holder of an office. The term ‘Quo Warranto’ means ‘what is your authority ‘ It is a judicial order asking a person, who occupies public office, to show by what authority s/he holds the office. If it is found that the holder of the office has no valid title, then this writ is issued to him to oust from the office.
The conditions necessary for the issue of a writ of Quo Warranto are:

  • The office must be public and it must be created by a statute or by the constitution itself.
  • The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.
  • There has been a contravention of the Constitution or a statute or statutory instrument, in appointing such person to that office.

Conclusion

Thus it is clear that vast powers are vested with the Judiciary to control an administrative action when it infringes fundamental rights of the citizens or when it goes beyond the spirit of Grundnorm of our country i.e Constitution of India. It ensures the Rule of Law and proper check and balances between the three organs of our democratic system. The philosophy of writs is well synchronized in our Constitutional provisions to ensure that rights of citizens are not suppressed by an arbitrary administrative or Judicial action.

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