According to the oxford dictionary a writ is a form of written command in the name of a court or other legal authority to act, or abstain from acting, in a particular way.
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.
A writ petition is an application filed before the competent Court requesting it to issue a specific writ.
Writs under the Indian Constitution:
Fundamental rights are provided under Part III of the Indian Constitution. But merely being provided with fundamental rights is not enough these fundamental rights have to be protected 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 whose Fundamental Right has been violated.
Types of Writs:
- Habeas Corpus
‘Habeas Corpus’ literally means “to have a body of”. This writ is used to release a person who has been unlawfully detained or imprisoned. By virtue of this writ, the Court directs the person so detained to be brought before it to examine the legality of his detention. If the Court concludes that the detention was unlawful, then it directs the person to be released immediately.
In Kanu Sanyal v. District Magistrate Darjeeling & Ors. (1974 AIR 510) 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.
‘Mandamus’ means ‘we command’. It is issued by the Court to direct a public authority to perform the legal duties which it has not or refused to perform. It can be issued by the Court against a public official, public corporation, tribunal, inferior court or the government. It cannot be issued against a private individual or body, the President or Governors of States or against a working Chief Justices. Further, it cannot be issued in the following circumstances:
- The duty in question is discretionary and not mandatory.
- For the performance of a non-statutory function.
- Performance of the duty involves rights of purely private nature.
- Where such direction involves violation of any law.
- Where there is any other remedy available under the law.
‘Quo Warranto’ means ‘by what warrant’. Through this writ, the Court calls upon a person holding a public office to show under what authority he holds that office. If it is found that the person is not entitled to hold that office, he may be ousted from it. Its objective is to prevent a person from holding an office he is not entitled to, therefore preventing usurpation of any public office. It cannot be issued with respect to a private office.
The writ can be issued only when the following conditions are fulfilled:
- The public office is wrongfully assumed by the private person.
- The office was created by the constitution or law and the person holding the office is not qualified to hold the office under the constitution or law.
- The term of the public office must be of a permanent nature.
- The nature of duties arising from the office must be public.
‘Certiorari’ means to ‘certify’. Certiorari is a curative writ. When the Court is of the opinion that a lower court or a tribunal has passed an order which is beyond its powers or committed an error of law then, through the writ of certiorari, it may transfer the case to itself or quash the order passed by the lower court or tribunal. A writ of certiorari is issued by the Supreme Court or High Court to the subordinate courts or tribunal in the following circumstances:
- When a subordinate court acts without jurisdiction or by assuming jurisdiction where it does not exist, or
- When the subordinate court acts in excess of its jurisdiction by way of overstepping or crossing the limits of jurisdiction, or
- When a subordinate court acts in flagrant disregard of law or rules of procedure, or
- When a subordinate court acts in violation of principles of natural justice where there is no procedure specified.
A writ of prohibition is issued by a Court to prohibit the lower courts, tribunals and other quasi-judicial authorities from doing something beyond their authority. It is issued to direct inactivity and thus differs from mandamus which directs activity. It is issued when the lower court or tribunal acts without or in excess of jurisdiction or in violation of rules of natural justice or in contravention of fundamental rights.
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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