TYPES OF WRITS IN THE INDIAN CONSTITUTION

Meaning of writ

An individual or group of an individual can file a writ petition in court on his or her behalf or the behalf of his or her family or friends. It may be used against both public officials and private citizens. Based on the writ petition filed, the court can issue a formal written order. The word “Writs” refers to a written command issued in the Court’s name. It is a court-issued legal instrument that commands a person or organization to carry out certain conduct or to stop carrying out a specified action or deed. Writs are issued in India by the Supreme Court in accordance with Article 32 of the Indian Constitution and by the High Court in accordance with Article 226 of the Indian Constitution.

Under Articles 32 and 226 of the Constitution, the supreme court and the High courts, respectively, have the authority to issue writs of habeas corpus, quo warranto, mandamus, certiorari, prohibition, etc. These writs were brought to India from England, where their growth had a lengthy and rocky past, and as a result, they accumulated a lot of technicalities. The primary purpose of the power to issue writs is to guarantee each citizen’s access to constitutional remedies. As far as we know, the Indian people’s access to all other fundamental rights is guaranteed by their right to constitutional remedies. The constitution further stipulates that in addition to the aforementioned, the parliament may provide the supreme court with the authority to issue writs for purposes other than those indicated above. In a similar vein, High courts in India have the authority to issue writs for any reason, including the enforcement of any of the rights granted by Part III.

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. 

(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. 

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). 

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

Power of High Courts to issue certain writs.

(1) Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including 1[writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.] 

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories. 

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without— 

a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

b) giving the such party an opportunity of being heard, 

makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of the such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the said next day, stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause(2) of article 32.

Part III of the Indian Constitution contains fundamental rights, such as the rights to equality, life, and liberty, among others. The protection of fundamental rights alone is insufficient. Additionally, it is crucial that these Fundamental Rights be safeguarded and upheld. Any person whose fundamental right has been violated has the option to file a complaint with the Supreme Court or the High Court, respectively, under Articles 32 and 226 of the Indian Constitution, which guarantee fundamental rights. The two articles also grant the highest courts in the nation the authority to issue writs in order to uphold Fundamental Rights.

Kinds of writs

Five different types of writs are particularly mentioned in articles 32 and 226. These writs are issued under various conditions and have various ramifications. As follows:

1. Habeas corpus 

2. Quo warraranto 

3. Mandamus 

4. Certiorari 

5. Prohibition

HABEAS CORPUS

A writ to secure liberty was known as habeas corpus. The Latin phrase habeas corpus means “you must have the body.” By issuing this writ, the court orders whoever or whatever imprisoned the other person to bring the prisoner’s body before it so that it can determine whether or not the imprisonment was lawful, within its purview, and justified. The main goal of the writ is to enable prompt judicial review of any claimed unlawful detention that may have an impact on a prisoner’s freedom or liberty while in custody. The writ’s tremendous value lies in its ability to quickly ascertain a person’s right to freedom. According to Article 22, a person who has been arrested must appear before a magistrate within 24 hours after being detained; if they fail to do so, they are entitled to release. When someone has been taken into custody as a result of a court order, even if the order first seems to be entirely or partially unconstitutional, Habeas corpus cannot be obtained.

We can easily understand this by just looking at the meaning of “Habeas Corpus” is what “to have a body of”. This writ is used to free someone who has been detained or held against their will. The Court instructs the person so detained to be brought before it so that it can assess the legality of his detention as a result of this writ. If the Court decides that the detention was improper, it orders the individual’s immediate release. Following are instances of wrongful detention:

1. The detention was not carried out in line with the established procedure. For instance, after being arrested, the person was not brought before a magistrate within 24 hours.

2. The man was detained despite not breaking any laws.

3. Under the terms of an invalid statute, an arrest was made.

This writ guarantees prompt judicial examination of the prisoner’s purportedly wrongful imprisonment and prompt determination of his right to freedom. Habeas corpus, however, cannot be given when a person has been detained according to a court order, even if the order initially seems to be partially lawful or within the court’s jurisdiction.

The detained person may file this writ on his or her own behalf or on the behalf of his or her family or friends. It may be used against both public officials and private citizens.

Sunil Batra v. Delhi Administration (1980 AIR 1579)  

In this case, an application was made to the Supreme Court through a letter written by a co-convict on the maltreatment of the prisoners. This letter was taken up by the Supreme Court and it issued the writ of habeas corpus stating that this writ can not only be used against the illegal arrest of the prisoner but also for his protection against any maltreatment or inhuman behaviour by the detaining authorities.

Kanu Sanyal v. District Magistrate Darjeeling & Ors. (1974 AIR 510)

In this case, the Supreme Court held that rather than focusing on the defined meaning of Habeas Corpus, i.e. produce the body, there should be a focus on the examination of the legality of the detention by looking at the facts and circumstances of the case. It stated that this writ is a procedural writ and not a substantive writ. This case dealt with the nature and scope of the writ of habeas corpus.

Gopalan v.Government of India

In this case, 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.

QUO WARRANTO

What is your authority? what the term quo warranto means? According to the applicable statutory provisions, the writ of quo warranto is used to judicially control executive activity in the issue of making nominations to public offices. The writ may also be used to defend a citizen against a person holding a status of public trust that they are not entitled to. The writ requires the holder of a public office to demonstrate to the court how and why he obtained the status in question. The court may stop someone from acting in the position if he is not entitled to it and may also declare the post vacant. In addition to providing a tool to prevent the executive from appointing people to public office in violation of the law, the writ procedures also have a tendency to safeguard the public from losing access to the public office to which it is entitled.

The quo warranto prevents someone from taking up a public position without authorization. The office in question must be public, created by the constitution or a law, and the person holding the office must be clearly in violation of the constitution’s or law’s provisions in order for the court to grant a writ of mandate. The person against whom the quo warranto writ is aimed must demonstrate how they are entitled to the writ. The individual against whom the writ of quo warranto is intended must demonstrate how they have the right to hold the position in question. The High Court will not take into account any further factors that would be important for the issuance of a writ of certiorari while issuing such a writ, instead choosing to publicly declare the appointment’s illegality.

“By what warrant” is what “Quo Warranto” means. The Court is requesting proof of the authority under which a person holding a public office holds such office through this writ. The individual may be removed from the office if it is shown that they are not qualified to do so. Its goal is to stop someone from occupying a position to which they are not legally qualified, therefore preventing usurpation of any public office. It is not permitted to be issued in relation to a private office.

Only under the following circumstances can the writ be issued:

1. The private person wrongfully assumes public office.

2. The individual in the position does not meet the requirements set forth in the constitution or statute for the office, which was founded by those documents.

3. The tenure of the public office must be permanent.

4. The duties arising from the office must be open to the public.

Kumar Padma Padam Prasad v. Union of India (AIR 1992 SC 1213) 

In this case, Mr K.N. Srivastava was appointed as a Judge of the Gauhati High Court by the President of India by a warrant of appointment under his seal. A petition was filed for issuing a writ of quo-warranto contending that Mr K.N. Srivastava was not qualified for the office. It was held by the Supreme Court that since Mr K.N. Srivastava was not qualified, quo warranto could be issued and accordingly the appointment of Mr K.N. Srivastava was quashed.

Jamalpur Arya Samaj Sabha v. Dr D Rama (AIR 1954 Pat. 297)

In the case, the petitioner filed an application for issuing the writ of Quo Warranto against the Working Committee of Bihar Raj Arya Samaj Pratinidhi Sabha, which was a private body. The High Court of Patna refused to issue the writ of Quo Warranto because it was not a public office.

MANDAMUS

A court’s order to carry out a legal obligation to execute a public duty is known as a mandamus. For instance, a body can be ordered to decide a matter if it fails to do so when it is required to.

If the government refuses to exercise a power that it is clearly entitled to under the law, or if a powerholder unlawfully refuses to use its authority, a mandamus may be granted. Mandamus’ purpose is to maintain public officials within the confines of their authority while they carry out their duties. Mandamus may be given to any authority for any function, including administrative, legislative, quasi-judicial, and judicial. A mandamus is a legal tool used to make public authorities perform their duty. When the government is not required to do something by the law, a mandate is not issued. Mandamus can be granted to direct an authority to comply with an order of a tribunal when it fails to fulfil its legal obligation to do so. Thus, a mandamus was issued to the relevant body to provide the permits to the petitioner in accordance with the tribunal order after the appellate transport tribunal accepted the petitioner’s applications for the issuing of licenses.

Mandamus translates to “we command.” The Court issues it to order a public authority to carry out the legal obligations that it has neglected or refused to do. A public officer, public corporation, tribunal, the lower court, or the government may be the target of one issued by the Court. It cannot be issued against a working Chief Justice, a private person or entity, the President or Governors of States. Additionally, it cannot be provided under the following conditions:

1. The obligation in question is optional and not a legal requirement.

2. for the accomplishment of an unofficial task.

3. The exercise of the responsibility involves exclusively private rights.

4. when following such a directive would mean breaking the law.

5. when there is another legal remedy available.

A writ of mandamus is issued to ensure that public officials remain within their purview while performing their duties. Mandamus is intended to prevent unrest brought on by a lack of justice and must always be granted in situations when there is no clearly defined legal remedy. When a government or public authority has no legal obligation to act, it cannot be issued.

A person in good faith who has an interest in the public authority doing its duties must file a writ petition for mandamus. The individual requesting mandamus must have the legal right to do so and must also have demanded that the duty be performed but be rejected by the appropriate authorities.

All India Tea Trading Co. v. S.D.O. (AIR 1962 Ass 20)

In this case, the Land Acquisition Officer erroneously refused to pay the interest on the compensation amount. A writ of mandamus was issued against the Land Acquisition Officer directing him to reconsider the application for the payment of interest.

Suganmal v. State of M.P. (AIR 1965 SC 1740)

In this case, the petitioner (person who files the writ petition) filed for issuing a writ of mandamus to direct the respondent (opposite party in the writ) for refunding tax. The Supreme Court held that where an assessment order was set aside and the rules concerned did not provide for a refund of tax levied, a writ of mandamus cannot be issued. The proper remedy is to file a suit for claiming the refund.

Bombay municipality v. Advance Builders

In this case, 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.

CERTIORARI

The Latin term “Certiorari” is the passive form of the verb “certiorari,” which means to inform. Only the Supreme Court under Article 32 and a High court under Article 226 may issue a writ of certiorari or a writ in the nature of certiorari to order inferior courts, tribunals, or authorities to transmit the record of proceedings concluded or pending therein for review and, if necessary, for quashing the same. However, a writ of certiorari cannot be issued to request the records, papers, and procedures of a law or ordinance, let alone to have it overturned.

A curative writ is certiorari. Through a writ of certiorari, the Supreme Court may transfer a case to itself or vacate an order made by a lower court or tribunal if it believes that the decision was made outside of its authority or in violation of the law. The Supreme Court or High Court may issue a writ of certiorari to lower courts or tribunals in the following situations:

1. when a lower court acts without authority or when it assumes jurisdiction where none exists, or

2. When the subordinate court goes over its authority by going overboard or beyond the line of authority, or

3. when a lower court violates the law or the rules of procedure blatantly, or

4. when there is no established procedure and a lower court acts contrary to natural justice standards.

PROHIBITION

A court will issue a writ of prohibition to stop lower courts, tribunals, and other quasi-judicial institutions from acting outside of their scope. It contrasts with the mandamus, which commands activity, in that it is issued to direct inactivity.

It is given out when a subordinate court or tribunal goes outside its authority, in contradiction of natural justice principles, or when fundamental rights are violated. It may also be given when a subordinate court or tribunal exercises its authority in violation of another legislation.

A writ of prohibition is normally issued when an inferior court or tribunal 

1. proceeds to act without jurisdiction or in excess of jurisdiction 

2. proceeds to act in violation of rules of natural justice or 

3. proceeds to act under a law which is itself ultra vires or unconstitutional or 

4. proceeds to act in contravention of fundamental rights.

The writs of prohibition and certiorari are issued at various phases of the case’s processes, which is where they differ from one another. After the case has been heard and determined, a writ of certiorari is issued. When a lower court made a judgement or issued an order that was outside its authority, it was ordered to set aside that decision or order. While the case is pending before it, a writ of prohibition is issued forbidding any procedures in the lower court that operate outside of their authority.

Who can file a writ petition?

Any person whose Fundamental Rights have been violated by the State may submit a writ petition. Even if his personal Fundamental Right has not been violated, any public-spirited person may submit a writ petition in the interest of the wider public under a Public Interest Litigation.

Where can a writ petition be filed?

A writ petition may be submitted to the Supreme Court under Article 32. Only if the petitioner can show that his Fundamental Right has been violated will the Supreme Court grant a writ. It is significant to remember that because it is included in Part III of the Constitution, the right to petition the Supreme Court in the event that a fundamental right has been violated is also a fundamental right in and of itself.

A writ petition may be brought before any High Court, in whole or in part, whose jurisdiction the cause of action arises, in accordance with Article 226. Whether or not the authority the writ petition is filed against is located within the area is irrelevant. In comparison to the Supreme Court, the High Court has significantly more authority to issue writs.

The High Court may issue a writ to enforce basic rights or for any other reason, such as when a statutory authority violates one of its statutory obligations. So, a private person may also be the target of a writ petition submitted to the Supreme Court. The Supreme Court or the High Court may be consulted when a basic right has been violated.

It is not essential to first visit the High Court before approaching the Supreme Court. The petitioner must provide evidence as to why the High Court was not contacted first if a writ petition is filed directly before the Supreme Court.