Writs under Indian Constitution

The Supreme Court and the High Courts have various powers which they exercise to provide justice to the citizens of India. One of the most important powers which is available to them is the power to issue writs. The Supreme Court and the High Courts can issue writs under Article 32 and 226 of the Indian Constitution respectively. Article 32 is considered as a fundamental right. Any person whose fundamental right is violated he/she can approach the Supreme Court under this article. But Article 32 can be suspended during an emergency. Article 226 is not considered as a fundamental right. However, the scope of Article 226 is much wider than Article 32 because Article 32 can be invoked only for the enforcement of Fundamental rights, but Article 226 can be invoked for the enforcement of fundamental rights as well as other legal rights also. Article 226 cannot be suspended during an emergency. According to the Indian Constitution courts can issue five types of writs:

        (i) Writ of Habeas Corpus

       (ii) Writ of Mandamus

      (iii) Writ of Certiorari

      (iv) Writ of Prohibition

       (v) Writ of Quo-Warranto

  • Writ of Habeas Corpus

Habeas Corpus means ‘to have the body’. This writ is issued by the Courts when a person is illegally detained. By issuing this writ, the Court commands the person who has detained the other person to present such person before the court and to provide the grounds on which the person has been arrested. If the person fails to provide valid ground, the person so arrested can be released by the Court. This writ can be issued only when the court finds that arrest or detention is unlawful. If the court finds the ground to be justified, then this writ will not be issued. The person or the applicant should be in custody of another person. Generally, the person detained and his/her family members are allowed to file an application but nowadays courts also allow strangers to file the application if it is done in public interest. There is no prescribed format to file this writ.

Case: Sunil Batra vs Delhi Administration[1]

In this case, the Supreme Court accepted the application made through a letter by a stranger due to inhuman treatment of prisoners. The letter was accepted and a writ of Habeas Corpus was issued. It was held that the writ of habeas corpus can be issued not only releasing a person from illegal arrest but it can also be issued to protect the prisoners from inhuman treatment.

  • Writ of Mandamus

Mandamus means ‘we command’. It is issued by the superior court to a lower court or tribunal or public authority to do an act or abstain from doing an act. The courts have discretionary power to issue such writs. This writ is issued to ensure that administrative authorities are fulfilling their duties. The writ will not be issued if the duty has already been fulfilled by the authority. Writ of Mandamus cannot be issued in the following circumstances:

  1. To enforce contractual rights and obligations
  2. Against any private individual and organization because they do not perform any public duty.
  3. To order someone to when the kind of work is discretionary and not mandatory.

Case: Vijay Mehta vs State of Rajasthan[2]

In this case, a petition was filed in the High Court of Rajasthan to give directions to the State to appoint a commission which will look into the climate change and floods in the state. The High Court of Rajasthan held that the state government could appoint a commission only when a resolution was passed by the legislature, moreover, it was a discretionary duty and not a mandatory duty. So, the writ of mandamus was not issued.

  • Writ of Certiorari

Certiorari means ‘to be certified’. This writ is issued by the superior court to an inferior court or tribunal. This writ is issued when the superior court wants to decide the case itself or if the inferior exceeds its jurisdiction. It can also be issued when there is an error in the procedure followed by the inferior court or if there is violation of the principle of natural justice. This writ is issued against those bodies which are judicial or quasi-judicial in nature. The scope of this writ is confined only to judicial bodies or other bodies which perform judicial functions and it does not extend to Central, State Governments because they perform administrative functions.

Case: Collector of Customs, Madras vs A.H.A Rahiman[3]

In this case, the collector of customs passed an order of confiscation of goods without any notice and enquiry. The Madras High Court held that the order of the collector of customs was passed without hearing the affected parties and it was against the principle of natural justice. Hence, Madras High Court quashed the order of collector of customs.

  • Writ of Prohibition

Prohibition means ‘to forbid’. This writ is issued by the superior court to an inferior court or tribunal to prevent the latter from exceeding its jurisdiction. If the court or tribunal does not have the jurisdiction to decide the case, but still gives the judgement, then judgement given by the court or tribunal will be held invalid.

Difference between the Writ of Certiorari and Writ of Prohibition

Both the writs appear to be the same but there is only major difference between the two. In the Writ of Prohibition, the superior court issues the writ before the matter is decided by the inferior court. Therefore, it is a preventive remedy. In the Writ of Certiorari, the superior court issues the writ after the final judgment. Therefore, it is a corrective remedy by which the judgment of the inferior court is quashed.

  • Writ of Quo-Warranto

Quo-Warranto means ‘by what authority’. It is issued by the court against a person when he/she assumes an office in which he/she has no right. It is a measure to prevent people from taking over public offices. It is discretionary on the court whether they want to issue this writ or not. It can be issued only when the court is satisfied that:

(i) the office in question is a public office.

(ii) It is held by the person without any legal authority.

This writ will not be issued if the office held is of private character.

Case: Jamalpur Arya Samajh Sabha vs Sr. S. Ram[4]

In this case, an application of Quo-Warranto was filed in the High Court of Patna. The application was filed against the working committee of Bihar Raj Arya Samajh Pratinidhi Sabha which was a private body. The High Court refused to issue the writ of qui-warranto because it was a private office and not a public office and this writ can be only issued against public office.

[1] AIR 1980 SC 1795

[2] AIR 1980 Raj 207

[3] AIR 1957 Mad 496

[4] AIR 1954 Pat 297

Aishwarya Says:

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