Writs in India

 

introduction Writs are a 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 and High Court against the violation of his/her fundamental rights. The Supreme Court (under Article 32) and the high courts (under Article 226) can issue the writs. Before 1950, only the High Courts of Calcutta, Bombay and Madras had the power to issue the writs. The Parliament (under Article 32) can empower any other court to issue writs. Since no such provision has been made so far, only the Supreme Court and the high courts can issue the writs and not any other court. Writs of India are borrowed from English law where they are known as ‘Prerogative writs’   Types of Writs in India The five types of writs are: 1.       Habeas Corpus 2.       Mandamus 3.       Prohibition 4.       Certiorari 5.       Quo-Warranto   Habeas Corpus It is a Latin term which literally means ‘to have the body of’. It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. The court then examines the cause and legality of detention. It would set the detained person free, if the detention is found to be illegal. Thus, this writ is a bulwark of individual liberty against arbitrary detention. The writ of habeas corpus can be issued against both public authorities as well as private individuals. The writ is not issued where the Ø  Detention is lawful. Ø  The proceeding is for contempt of a legislature or a court. Ø  Detention is by a competent court. Ø  Detention is outside the jurisdiction of the court.   Mandamus  It literally means ‘we command’. It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform. It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose. The writ of mandamus cannot be issued – Ø  against a private individual or body Ø  To enforce departmental instruction that does not possess statutory force Ø  When the duty is discretionary and not mandatory Ø  To enforce a contractual obligation Ø  Against the president of India or the state governors Ø  Against the chief justice of a high court acting in judicial capacity.   Prohibition Literally, it means ‘to forbid’. It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. Unlike mandamus that directs activity, the prohibition directs inactivity. The writ of prohibition can be issued only against judicial and quasi-judicial authorities. It is not available against administrative authorities, legislative bodies, and private individuals or bodies.   Certiorari In the literal sense, it means ‘to be certified’ or ‘to be informed’. It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law. Unlike prohibition, which is only preventive, certiorari is both preventive as well as curative. Before 1991: The writ of Certiorari used to be issued only against judicial and quasi-judicial authorities and not against administrative authorities. After 1991: The Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting the rights of individuals certiorari can be issued even against administrative authorities affecting rights of individuals.  Like prohibition, certiorari is also not available against legislative bodies and private individuals or bodies.   Quo-Warranto In the literal sense, it means ‘by what authority or warrant’. It is issued by the court to enquire into the legality of claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person. The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution.  It cannot be issued in cases of ministerial office or private office. Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.                                                 Read also about the timeline of formation of constitution Difference in Supreme court's and high court's writs The writ jurisdiction of the Supreme Court differs from that of a high court in three respects: 1.       The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a high court can issue writs not only for the enforcement of Fundamental Rights but also for enforcement of an ordinary legal right. Thus, the writ jurisdiction of the Supreme Court, in this respect, is narrower than that of high court. 2.       The Supreme Court can issue writs against a person or government throughout the territory of India whereas a high court can issue writs against a person residing or against a government or authority located within its territorial jurisdiction only or outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction. Thus, the territorial jurisdiction of the Supreme Court for the purpose of issuing writs is wider than that of a high court. 3.       A remedy under Article 32 is in itself a Fundamental Right and hence, the Supreme Court may not refuse to exercise its writ jurisdiction. On the other hand, a remedy under Article 226 is discretionary and hence, a high court may refuse to exercise its writ jurisdiction.