This article has been written by Parul Sharma, pursuing BBA LLB from Centre for legal studies Gitarattan International Business School GGSIPU. In this article, she has tried to explain the types of writs in the Indian Constitution.
Introduction
Fundamental Rights are ensured to the citizens under Part-III of the Indian Constitution which includes numerous rights such as the right to life, right to privacy, right to equality, etc. But merely providing fundamental rights is not sufficient and hence these rights are needed to be protected and enforced as well. So, to protect these Fundamental Rights the Indian Constitution provides the right to approach the Supreme Court under Article 32 and High Court under Article 226, to any person whose fundamental rights have been infringed. The two articles give the rights to the highest court to issue writs in order to safeguard the Fundamental Rights of the person and enforce them in the manner in which they should be enforced.
A writ, fundamentally, is a formal written order issued by either Supreme Court or High Court and it can be in the form of orders, warrant, directions, etc. One can file a writ petition in the competent court if there is an infringement of their Fundamental Rights and can request to issue a specific writ.
Types of Writs
The Indian Constitution provides five different types of writs which are issued in different circumstances and have different implications. They are as follows:
Habeas Corpus
Habeas Corpus is a Latin term which literally means “You should have the body”. The writ is issued to give remedy to a person who has been detained, whether in prison or in private custody, before a court and to release him if such detention is found illegal. In other words, the court gives an order to the person by whom another person has been detained and tells the court the reason for the detention and if the reason seems illegal then the court will order to release the person. Thus, this writ gives a quick remedy to the person who has been wrongfully detained.
When will it lie – The writ will lie if the detention was exercised with bad faith or intentions and is made for unapparent purposes by the authority holding the detention. But what if the detention is reasonable? Then the High Court does not grant the writ of habeas corpus. The detention becomes unlawful if the following conditions are satisfied:
- The detention is not according to the law and the procedure established by the law is not followed strictly or the invalid law is followed.
- The court will check the detention with the help of these articles if the detention violates then it is unlawful or illegal detention.
The detention becomes unlawful if the person who is arrested is not produced before the judge within the 24 hours of the detention and there would be an order of his release by issuing the writ of habeas corpus. This would help the person retain his right of Protection of Life and Personal Liberty under Article 21 and right of Protection against arrest and detention under Article 22 of the Indian Constitution.
In the case of AK Gopalan v. State of Madras [1], the petitioner was detained unlawfully and his rights to life and liberty were violated. And he filed the writ petition of habeas corpus and wanted the remedy. Although the Court found the detention lawful.
Who can apply for the writ – The general rule says that an application can be made or writ petition can be filed by the person who is unlawfully detained. But an application can also be made by any other person on behalf of the petitioner, maybe a friend or relative.
In the case of Sunil Batra v. Delhi Administration [2], a letter was written by the petitioner to one of the judges of the Supreme Court, and that was treated as a writ petition. The court exercise this writ for the neglect of State penal facilities. The writ was also issued when a ban was pressed on the law students to conduct interviews with prison mates to provide them legal relief.
Mandamus
The word “mandamus” is a Latin word whose literal meaning is “We command”. This writ is an order given by the courts commanding a person or a public authority to do something in the nature of public duty or a statutory duty in some cases. Basically, this petition reminds the person or authority, who have a duty that needs to be fulfilled for the public, to do their job properly. For instance, A has a legal right which cast a legal obligation on B. A can seek a writ of mandamus and can remind B to perform his legal duty if there was a breach of obligation from B’s side.
When will it lie – The writ would be identified as mandamus if there is a failure in performing any obligatory duty. But in such cases, the party should show that the demand to perform the specific duty was made but no action was taken on or the demand was refused.
The Supreme Court might issue a mandamus to there if a violation of the fundamental right of a person by some governmental order or act is alleged. The High courts might issue this writ to direct an officer to exercise his constitutional and legal powers or to compel any person to discharge duties he holds which were given by the constitution or the statue or to compel a judicial authority to exercise its jurisdiction and to order the government not to enforce an unconstitutional law.
In Mrs Santosh Singh v. Union of India [3], the Supreme Court held that the writ of mandamus cannot be issued for the introduction of moral science as a compulsory subject in the school curriculum. There is no dispute about the value-based education. The jurisdiction of the Supreme Court is not a panacea for all ills but a remedy for the violation of Fundamental Rights.
In Unni Krishnan vs Union of India [4], held that a private medical/ engineering college comes within the writ jurisdiction of the court irrespective of the question of aid and affiliation.
Certiorari
Certiorari is a Latin word meaning ‘to be certified’. The writ of certiorari is often issued by the Supreme Court or any High Court for quashing the order already passed by a lower court, tribunal or quasi-judicial authority.
When will it lie – The writ can lie only on judicial bodies. This means that the issuing of the writ of certiorari can only be availed of only to remove or to adjudicate upon the validity of judicial acts.
In the case Syed Yakoob v. Radhakrishnan [5], it was held that the jurisdiction of the high court to issue a writ of certiorari is a supervisory jurisdiction and the court exercise it is not entitled to act as an appellate court. An error of law that is clear on the face of the record is corrected by a writ, but not a mistake of fact. However, if a finding of fact is based on ‘no evidence’ that would be regarded as an error of law which can be corrected by certiorari.
As stated in the law lied down in the case above Certiorari can be issued in the following grounds:
- when the body concerned to proceed to act without or excess of jurisdiction, or
- fails to exercise its jurisdiction properly, or
- there is an error of law apparent on the face of the record in the validity of the decision of the body, or
- the findings of fact reached by the inferior tribunal are based on no evidence, or
- it proceeds to act in violation of the principles of natural justice, or
- it proceeds to act under a law which itself invalid, ultra vires or unconstitutional, or
- it proceeds to act in contravention of fundamental rights
Prohibition
The Writ of prohibition means to forbid or to prevent and is popularly referred to as ‘Stay Order’. This writ is issued to prevent an inferior court or tribunal from exceeding its jurisdiction or acting contrary to the rule of natural justice. The writ of prohibition is issued by the High Court of any state or the Supreme Court to any lower court, or quasi-judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to undertake.
Thus, the writ is issued in both cases where there is an excess of jurisdiction and where there is an absence of jurisdiction.[6]
The fundamental distinction between Certiorari & Prohibition is that while the writ of prohibition is available during the pendency of proceedings, the writ of certiorari can be resorted to only after the order or decision has been announced. The difference between the writs was explained by the Supreme Court within the following words:
“When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the Supreme Court for a writ of prohibition and on that, an order will issue forbidding the inferior court from continuing the proceedings. On the other hand, if the court hears the cause or matter and gives a decision, the party aggrieved would have to move the Supreme Court for a writ of certiorari on that an order will be made quashing the decision on the ground of jurisdiction.”
Quo-Warranto
The word Quo-Warranto literally means “by what warrants” or “what is your authority” By this writ, a holder of an office is called upon to show to the court under what authority he is holding the office. The main objective of the writ is to prevent a person to hold an office that he is not legally entitled to hold. If the person is found out to still hold on the office, then Court may direct him not to carry out any activities in the office or may announce the office to be vacant. Thus, the Court may issue a writ of quo-warranto if a person holds an office beyond his retirement age.
Conditions for issue of Quo-Warranto: –
- The office should be public and it must be created by a statute or by the constitution itself.
- The office must be a substantive one i.e. a major one and not merely for the function or employment of a servant at the will and during the pleasure of another.
- There must have been a breach of the constitution or a statute or statutory instrument, in appointing such person to that office.
A writ of Quo-Warranto can be claimed by a person if he satisfies the Court that the office in question is a public office and it is held by a person without legal authority.
In the case of Jamalpur Arya Samaj vs. Dr D. Ram [7], Patna High Court held that writ of Quo Warranto cannot be issued against private association only public offices will be lying under this writ scope.
Who can file a writ petition?
A writ petition can be filed by any person whose Fundamental Rights have been violated by the State. Under a Public Interest Litigation, any person may file a writ petition in the interest of the general public even if his own Fundamental Right has not been infringed.
Where can a writ petition be filed?
Under Article 32, a writ petition is filed within the Supreme Court. The Supreme Court can issue a writ as long as the petitioner can prove that his Fundamental Right has been infringed. This approach to the Supreme Court if there is a violation of writ in itself is a right for the citizens under the Indian Constitution.
Under Article 226, a writ petition is filed before the High Court of any state within whose jurisdiction is the cause of action arises, either wholly or partially. The person against whom the writ petition is filed doesn’t need to be in the territory or not. It is immaterial for the court.
Where a fundamental right has been infringed, either the Supreme Court or the High Court can be reached. It is not necessary to approach the High Court first and only thereafter approach the Supreme Court. But if a writ petition is filed directly in the Supreme Court then the petitioner has to give a reason for why the High Court was not approached first.
Conclusion
Thus, it is clear that our Indian Constitution along with providing the Fundamental Rights also safeguards it with the help of different types of writs under Article 32 and 226. The enforceability of these Fundamental Rights is taken care of too. These writs give the citizens the liberty to enjoy and look after their fundamental rights which is a fundamental duty of all the citizens.
Citations
- [1] AIR 1950 SC 27
- [2] AIR 1980 SC 1579
- [3] AIR 2016 SC 3456
- [4] 1993 AIR 217, 1993 SCR (1) 594, 1993 SCC (1) 645, JT 1993 (1) 474, 1993 SCALE (1)290
- [5] AIR 1964 SC 477
- [6] S Govinda Menon v. Union of India, AIR 1967 SC 1274
- [7] 1954