What is Writs ?
Writs are written orders issued by the Supreme Court or a High Court directing Indian citizens to pursue constitutional remedies when their fundamental rights have been violated. By Article 32 of the Indian Constitution, a citizen of India may petition the Supreme Court of India and the by Article 226 High Court for constitutional remedies if their fundamental rights have been violated.
Who has power to issue Writs ?
The supreme court, and High courts have power to issue writs.
Types of Writs:
There are five types of Writs exist as per Constitution of India. The Writs are –
1) Habeas Corpus
2) Quo Warranto
3) Mandamus
4) Certiorari
5) Prohibition
1) Habeas Corpus : The meaning of Habeas Corpus is ‘to have the body’. Writ of Habeas Corpus is issued by the Supreme Court or High Courts in those cases where a person is illegally detained. This is one of the most effective remedies available to a person detained in India.
Writ of habeas corpus, is a Latin phrase, which can be literally translated as “We command that you have the body”. It means, you have the body and produce it before the Court. The object of this writ is to release a person who is illegally detained. It secures the release of a person from illegal detention either in prison or in private custody. According to law, no person shall be detained unlawfully.
The Court can direct to have the body of the person detained to be brought before it in order to ascertain whether the detention is legal or illegal. If a person who is arrested is not produced before the Magistrate within 24 hours from the time of arrest, he will be entitled to be released on the writ of Habeas Corpus. It
can be issued against any private person or executive authority. The disobedience of this writ amounts to contempt of Court, and is punishable.
Conditions for this writs: For this writ, following conditions must be fulfilled-
I) There must be illegal detention of a person.
II) The detention must be illegal at the time of filing the petition.
III) The detention must be unwarranted by law.
Who can apply for writ of Habeas Corpus before the Courts?
I) A person who has been detained illegally
II) A prisoner himself whose detention is illegal, or
III) Any person on behalf of the detainee/prisoner.
When writ of Habeas Corpus is not issued ?
I) If the detention has been made in accordance with law and procedure.
II) Where the person against whom the writ is issued or the person who is detained is not within the jurisdiction of the Court.
III) If a person who has been imprisoned by a Court of law on a criminal charge.
IV) If the proceedings interfere with a proceeding for contempt by a Court of record or by Parliament.
2) Mandamus :
A writ of mandamus, which in Latin means “we command, or sometimes “we mandate”, is the name of this prerogative writ in the common law. It is issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly. This mandamus order can also be given to an Inferior Tribunal, Board, Corporation or any other type of quasi-judicial authorities.
Conditions for this writ: Following conditions must exist.
I) There must be public duty upon the respondent.
II) The petitioner must have legal right to compel the performance of public duty .
III) Such duty must be mandatory duty cast by law.
IV) The petitioner must have demanded for the performance of such duty.
V) The public authority must have failed to perform or refuse to perform the pubic duty.
Against whom Mandamus is issued?
I) Against public authorities and institutions.
II) Against officers exercising public functions.
III) Against Government and public corporations.
When writ of Mandamus is not issued?
I) When the duty is merely discretionary in nature.
II) This writs cannot be issued against private individuals or private organisations because they don’t have public duty.
III) It cannot be granted to enforce a duty arising out of contract.
3) Certiorari :
This Writ is corrective in nature which means the purpose of this Writ is to correct an error which is apparent on the records.
Conditions: The following conditions should be matched –
I) There must be watch or excess of jurisdiction.
II) Principle of Natural Justice must be violated.
III) There must be a error of law on the face of judicial records.
When can a writ of Certiorari be invoked or granted?
I) Before the trial to prevent an excess or abuse of jurisdiction and remove
the case for trial to higher Court.
II) After trial to quash an order which has been made without jurisdiction
or in violation of the principles of natural justice. In other words, whenever any body of persons having legal authority to determine questions affecting the rights of subject and having the duty to act judicially, acts in excess of their legal authority, writ of certiorari can be granted.
Who can apply for writ of Certiorari ?
I) Any person whose fundamental right is violated can apply for writ of Certiorari.
Against whom writ of Certiorari is issued?
This can be issued against Inferior Courts, and A body exercising judicial or quasi-judicial functions.
Against whom writ of Certiorari cannot be issued?
This writ can’t be issued against a private individual or body of private persons .
When a writ of Certiorari cannot be granted?
I) To remove ministerial acts.
II) To remove or cancel executive acts.
III) To declare an Act as unconstitutional or void.
4) Quo Warranto : Que Warranto generelly means ‘by what authority or warrant’.The Writ of Quo Warranto is issued by the courts against a private person when he assumes an office on which he has no right.
Conditions: These include the following –
I) The office must be a public office.
II) The office must be substantive in character with independent title.
III) The respondent must not be legally qualified to hold the public office.
IV) The respondent must have held the office against the law.
Who can file Writ of Quo Warranto?
Any member of the public can file writ of Quo Warranto, whether any right of such person has been infringed or not.
When Writ of Quo Warranto is not issued?
I) When the office is a private office.
II) When the holder of the office is qualified to hold that office.
III) When the holder subsequently gets qualified for the office.
IV) When issue of writ becomes futile. It means if the writ does not serve any purpose.
5) Prohibition :
This writs is issued by the court to prohibit the lower courts, tribunals and other quasi-judicial authorities from doing something beyond their authority.This Writ is not issued often . It is an extraordinary remedy which a Superior Court issues to an inferior court or tribunal for stopping them from deciding a case because these courts do not have the jurisdiction.
Who can apply for the Writ of Prohibition?
The person whose right is violated can apply for the writ of prohibition.
When can a Writ of Prohibition be granted?
One can apply for this writs when the inferior Court or quasi-judicial authority exceeds its jurisdiction.
Secondly , When the inferior Court acts without lawful jurisdiction.
Thirdly, When the inferior Court or quasi-judicial authority acts against the rule of natural justice.
Fourthly, When there is an apparent error on the face of the judicial record.
When is Writ of Prohibition not issued?
I) When the Court acts within its lawful jurisdiction.
II) When the Court observes principles of natural justice.
Reference :
I) The Constitution of India
II) Constitutional law of India by J.N Pandey
II) www.egyankosh.ac.in
III) blog.ipleaders.in