Writs in Indian Constitution

Before diving deep into the concept of Writ and their types, one must know what does a writ mean?

What is Writ?

A writ is a formal written order issued by a judicial or administrative body to do a specific act. This body is generally a Court.

Indian Legal system

In Indian Legal System, the jurisdiction to issue writ is given to Supreme Court (under Articles 30032 and Article 139 of the Constitution of India) and High Courts (under Articles 226 of the constitution of India).

Article 32 of the Constitution of India- The Supreme Court shall have 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.

Article 139 of the constitution of India -Supreme Court has been invested with the powers to issue certain writs Parliament may by law confer on the Supreme Court power to issue directions, orders including prerogative writs.

Article 226 of the constitution of India- Under Article 226 of Constitution, High Court has power to issue such writs and orders as are necessary for administrative action and judicial or quasi-judicial action.

Types of writs:

There are two types of writs:

• Prerogative writs
• Other Writs

Prerogative Writs:

Prerogative writs are a subset of the class of writs which are issued by the court under special circumstances and are often known as extra ordinary remedies.

Prerogative writs are of 5 types:

1. Habeas Corpus
2. Mandamus
3. Certiorari
4. Prohibition
5. Quo-Warranto

Prerogative Writs

Habeas Corpus

Explanation

The literal meaning of this writ is “To have the body”. It is issued when there is a violation of fundamental right of liberty. This writ is issued by Supreme Court or High Court of India. It is issued to produce a person who has been detained before the Court and set him free, if there is no legal or valid justification of his detention. Habeas corpus is a protection against illegal confinement.

Who can file the petition?

There is a general rule that a petition can only be filed by the person whose rights have been infringed. As they always say, there is always an exception.

So, here the exception is writ of Habeas Corpus.

• It can be filed by the person whose rights have been infringed.
• It can also be filed by a person other than such person.

To whom it is issued?

• Authorities of states
• Governments
• Organisations or
• Individuals.

Cases

• This writ was issued in Rajan Case, a student victim of torture in local police custody during the nationwide Emergency in India in 1976.On 12th March 2014,
• Subrata Roy’s counsel approached the Chief Justice moving a habeas corpus petition.

Synopsis

• The meaning of the writ is “To have the body”.
• It is summon by the court.
• This writ can be issued against authorities of states or governments or organisations or Individuals.
• The writ is obtained by petition to a judge in the county or district where the prisoner is incarcerated.

2. Mandamus

Explanation

It is a Latin word which means “We Command.” It is an order from superior Court to any Sub-ordinate

• Court
• Co-operation
• Public Authority
• State Authority

to do some specific act which that body is obliged under law to do but fails to do so. It serves as a reminder to these authorities to perform their duty.

Who can file it?

This petition can be filed before the court only by the aggrieved individual. It can be filed only when the legal right of the person is violated.

To whom it can be issued?

• It can be issued by a court only against a public authority or a person holding a public office.
• It cannot be issued against an individual or private organisation.

Scope

The primary scope and function of mandamus is to “command” and “execute” rather than to “enquire” and “adjudicate”.

Non-availability

• The writ petition is not maintainable when a remedy under the Code of Civil Procedure is available.

For example, the High Court cannot entertain writ petitions for mandamus to the Government who fails to deposit and pay in the requisite time an enhanced compensation account as ordered by a lower Court. The petitioners in this case would be directed to approach the executing Court for appropriate relief.

Synopsis

• This is a demand and refusal writ i.e there must be demand from a person to do a specific act and there must be a refusal from such authorities to do such act.
• The person should have real interest in the matter.
• The purpose of mandamus is to remedy defects of justice.
• It lies in the cases where there is a specific right but no specific legal remedy for enforcing that right.
• It is a discretion remedy.

3. Certiorari

Explanation

It is also a Latin word which means “to be informed of”. It is a writ which seeks a judicial review. Judicial review here means reviewing or quashing the judgement passed by the inferior Court, Authority or Quasi-Judicial Authority without jurisdiction or in excess of the jurisdiction vested by law. The writ is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction

To whom it is issued?

It can be issued to

• To an Inferior Court
• Tribunal or
• Quasi-judicial Authority.

Who can file it?

It can only be filed by an aggrieved individual.

Essentials

• There must be an order or judgement passed by an Inferior Court, tribunal or Quasi-judicial Authority.
• Such court, tribunal or officer must have passed an order or judgement acting without jurisdiction or in excess of the jurisdiction vested by law.
• There must be an error of judgement in appreciating the facts of the case.

Purpose

The purpose of the writ is to quash or nullify the judgement/direction/order issued by such a judicial/quasi-judicial body.

Cases

Pankaj Kumar Ganguly and Ors. vs Bank Of India And Ors. on 17 April, 1956

Synopsis

• Meaning: “to be informed of”
• It seeks a judicial review.
• It is issued by a superior court to sub-ordinate court.
• It is issued when the case has already been adjudged which means the decision has been announced.

4. Prohibition

Explanation

It means to Stop. A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. It is issued by the superior courts to Sub-ordinate who are doing something which exceeds to their jurisdiction or acting contrary to the rule of natural justice. When the writ is issued, proceedings in the lower court are stayed i.e Res sub judice. The writ is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction.

To whom it is issued?

It is issued to

• An Inferior Court
• Tribunal or
• Quasi-judicial Authority.

Note: It cannot be issued against a legislative or administrative body.

Who can file it?

This petition can be filed only by the aggrieved individual.

Purpose

The purpose of the court is to prohibit the judicial/quasi-judicial body from proceeding further with the case.

Essentials

• There must be an on-going case in an Inferior Court, tribunal or Quasi-judicial Authority.
• The writ can be issued only when the proceedings are pending in a court.
• The writ can be issued at any stage of the proceeding.

Non-availability

There are circumstances in which writ cannot be filed:

• If the proceeding has matured into decision, writ will not lie.
• If the said court or authority in which writ is pending ceases to exist, writ will not lie.

Cases

A.Dhanasekaran vs The Commissioner on 21 March, 2011

Synopsis:
• It means to “stop”.
• It is issued during the pendency of the case.

Difference between writ of Certiorari and writ of prohibition.

Most of the people get confused between these two writs I.e. Certiorari and Prohibition. They may sound same but there lies a thin line of difference between them.

The difference is

• Certiorari is issued when a case has been already adjudicated upon means when the decision has been announced. (Res Sub Judicata)
• Prohibition is issued during the pendency of the proceedings.(Res sub judice).

5. Quo-warranto

Explanation:

The meaning of the writ is “What is your authority”. This writ is issued to restrain a person from holding a public office to which he is not entitled to. It questions to the particular person to explain by what authority he shall hold office.

Applicability

• It is applicable to public offices only.

Who can file it?

• Any person

Essentials

• It should be a public office which must be created by statue or constitution itself.
• There must be a contravention of the constitution or statue while appointing such person to that office.

Effect

When this writ is issued, it has the effect of removal of the person from public office with immediate effect.

Synopsis

• It means “What is your Authority?”
• Issued to public offices only.
• It questions the person by what Authority he should hold office.

Cases

• Removal of CVC of India PJ Thomas by SC.

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