Writs in short

A writ is a written command or formal order issued by a court of law directing the person or authority to whom it has been addressed, to do or abstain from doing certain act mentioned therein.

In common law, primarily there are three types or forms of writ, there have been many other forms which existed and some still continue to exist.

The three primary forms or types of writs are as follows:

  1. Warrants- A warrant is a written authority for doing an act, issued by a judge or a magistrate to an officer of law enforcement or any person to whom it has been addressed, which if committed without such authority would result in actionable wrong. Examples: Arrest warrant for making of arrest, Seizure warrant for seizure of property, Search warrant for search of person or property, etc.
  2. Prerogative Writs- The term ‘prerogative’ means a privilege exclusively available to and reserved for the exercise by sovereign of the state or the body to whom the sovereign has devolved its power in that regard. Therefore, prerogative writs are those written commands which can be issued only by one authority or court of law that has been recognized by the Constitution or custom (in case of England), and no other authority. Through these writs the recognized judicial authority or the courts of law effects control over subordinate courts (lower courts) or public authorities in the country. The prerogative writs are: Habeas corpus, Certiorari, Mandamus, Prohibition, Quo warranto and Procedendo.
  3. Subpoena- Subpoena is a type of writ or written order issued by a court of law, summoning a person to attend the court and testify as a witness before it or compelling a person to produce before the court certain evidence mentioned therein. And failure to testify or produce the evidence on order shall be met with punishment. Two types of subpoenas are: subpoena ad testificandum meaning order to testify in the court and subpoena duces tecum meaning order to produce certain evidence.

Writs Available Under the Indian Constitution

Writs available under the Indian Constitution are enumerated under articles 32 and 226. Article 32 gives the Supreme Court the power to issue writs to enforce a fundamental right of a citizen that has been violated by the State (as per Article 12). And Article 226 gives the High Courts in the states the power to issue writs to enforce a fundamental right of a citizen or any other legal right that has been violated within its jurisdiction.

The writs available under the above-mentioned articles are habeas corpus, mandamus, prohibition, quo warranto and certiorari. They are explained hereunder:

  1. Habeas corpus- It means ‘you may have the body’. This is issued by the court when any person has been detained by the law enforcement agency and the court orders the agency to produce before the court the detained person and wants to know what is the legal ground behind the detention of the person. And if the court is not satisfied with the submission of the arresting party and is unable to find any legal justification behind the arrest of the person it orders the person to be released. The main object of this writ is to provide quick and immediate remedy in case of unlawful detention which is a violation of Article 21. In the landmark case of ADM, Jabalpur v. Shivkant Shukla[1], the dissenting judge HR Khanna J. held that the state cannot deprive a person of his life and personal liberty without the authority of law even during emergency.
  2. Mandamus- It means ‘order’. This writ is issued by the court as a command against a public authority or any statutory or non-statutory agency which is under a legal duty to do or forbear to do something, in the performance of which the person aggrieved of the petitioner has a legal right. But that does not mean it can be issued against a rule making authority like the legislature whose duty is to make laws to carry out the provisions of this law, which is discretionary.
  3. Prohibition- This writ is issued by the court to prevent any inferior court or tribunal from exercising power or authority not vested in them. It is a ‘prohibitive writ’ which forbids the authority from continuing the proceedings beyond its jurisdiction. Since this writ is issued only against judicial and quasi-judicial authorities in relation to their jurisdiction, this writ is also known as jurisdictional writ. In Shewpujanrai I. Ltd. v. Collector of Customs[2], it was held that in case where the proceedings of an inferior court or tribunal are partly within and partly without jurisdiction, prohibition will lie against doing what is in excess of jurisdiction and not the whole.
  4. Quo warranto- It means ‘what is your authority’. This writ is issued against a person who alleged to be holding a public office without authority. This writ calls upon the holder of the office to show with what authority is he holding that office. It is issued to oust the usurper of an office, who is a person not legally entitled to hold the office which he is presently holding. In Renu v. District & Sessions Judge, Tis Hazari[3], the Court held that the writ of quo warranto is a weapon in the hands of judiciary to prevent the executive from making appointments to public offices against law and defend a citizen from being deprived of his right to hold a public office, provided he fulfills other necessary criteria.
  5. Certiorari- It means ‘to certify’. This writ is issued by a higher court on similar grounds as prohibition, against courts or tribunals when they have exercised their authority in excess of jurisdiction, want of jurisdiction or violation of principles of natural justice, in order to transfer the case to itself for review. But where prohibition is a ‘prohibitive writ’, certiorari is a ‘remedial writ’ and is issued to quash an order or decision which has been made without jurisdiction or in violation of principles of natural justice. Therefore, it is issued after completion of the proceeding and not in-between the procedure. This is also called a jurisdictional writ.

[1] (1976) 2 SCC 521.

[2] AIR 1958 SC 845.

[3] AIR 2014 SC 2175.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

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The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

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