Types of Writs under the Indian Constitution written by Pooja Ganesh student of SASTRA Deemed University
A writ is a formal document that orders a person to perform or cease to act. A writ petition is usually issued by a higher court to the subordinate court directing them to carry an act or restrict from doing an act. In Indian legal history, writ petitions have proved to remove many inequalities that arise due to the government’s certain actions. Everyone is equal before the law and there should be no discrimination. The Indian Constitution allows the aggrieved party to file a writ petition under Article 226 and Article 32. Article 226 allows to invoke writ petition in High Court and Article 32 allows to invoke writ petition in Supreme Court. A writ is a remedy sought when there is a violation of fundamental right prescribed in Part III of the Indian Constitution. The main aim of the writ petition is to protect the fundamental rights and legal rights of the citizens of the country. Even though writ is not explicitly defined under the constitution, it is considered as the basic structure, therefore it cannot be amended at any cause.
The five types of writs are:
• Habeas corpus – Release of a person who is unlawfully detained. (You may have the body)
• Mandamus – Duties of the public authority. (We command)
• Prohibition – Prohibits a subordinate court from proceeding with a particular case when there is no jurisdiction. (Prohibition of proceedings)
• Certiorari – To quash an order of subordinate court/tribunal/any other quasi-judicial authority. (To be certified).
• Quo Warranto – Restraining a person to hold public office which he is not authorized to hold. (Question of authority).
The term “Habeas corpus” means you may have the body. This writ is filed to direct the court to produce the person who is unlawfully detained. The main aim of this writ is to secure the liberty of the person who is detained. The court orders directions to the person who has unlawfully detained another person. It is the duty of the person or authority or the detainee to produce the detenu before the court as per the orders. The court will check the validity, justification, and jurisdiction of the person or authority to detain such other person. The writ of habeas corpus protects the rights of the person who is unlawfully detained without any jurisdiction. Habeas corpus cannot be applied in cases where the custody of the person has been ordered by a competent court. As per penal laws, a person who is arrested should be produced before the magistrate within 24 hours of his arrest.
If a person is detained unlawfully, then relatives or friends or any other person on behalf of the detenu can apply for a writ of Habeas corpus under Article 226 (High Court) or under Article 32 (Supreme Court). The court issues the writ if it is satisfied with the content of the application filed. The writ can be issued against public or private authorities. The detained person is set free if there is no legal justification for the confinement. An application of a writ of Habeas corpus can be filed by the detenu himself. A letter written by a convict about the inhumane torture faced is also treated as a petition of habeas corpus. This writ can free a person from inhumane treatment also, does not limit only to unlawful detention. Courts can also take suo moto action on receiving any information regarding unlawful detention. The speedy remedy is the base for habeas corpus writ. This writ is very helpful in protecting the personal liberty of the individual as per Article 21 of the Indian Constitution. Illegal detention contravenes the rights conferred under Article 21.
In these circumstances the writ of Habeas corpus cannot be issued:
• The detention in question is lawful.
• The detention is ordered by a competent court.
• The detention is outside the jurisdiction of the court.
• When the proceedings are related to contempt of court or record of parliament.
Article 32 and 226 allow the Supreme Court and all the high courts to issue a writ of mandamus to appropriate authority when there is a need to issue a command to perform a public duty. A court/corporation/tribunal or any other appropriate authority can be directed to exercise the jurisdiction and perform the duty imposed by law. This writ helps to keep a check on the public authorities and limits them within their jurisdiction when they perform their public functions. These public functions include all types of legislative, judicial, or quasi-judicial and administrative functions of public authorities. Only when the duty of authority is present, a writ of mandamus can be issued. If no action is taken within a reasonable time of the court’s order, then a writ of mandamus can be issued. The person whose right has been infringed or any public-spirited person can file an application for a writ of mandamus. Private medical or engineering colleges also come under the jurisdiction of writs, irrespective of their aid or affiliation.
The general rules for writ of mandamus:
• The petitioner should have the legal right.
• There is an infringement of a legal right.
• There should be a legal duty that has been failed to perform.
• A legal right should be present to perform such legal duty.
• The nature of the duty should be public.
• No duty arising from a private contract can be questioned under the writ of mandamus.
• The right sought should survive till the date of the petition.
• Writ of Mandamus is not issued in anticipation of injury.
• There is no alternative remedy.
• When the duty is discretionary, then a writ of mandamus will not lie.
The writ of prohibition is issued when an authority has wrongly exercised jurisdiction or has exceeded the jurisdiction. The authority in consideration can be either judicial or quasi-judicial. This writ is issued by a court to its subordinated court to stop proceeding with the case where there is no jurisdiction. This writ can be issued under Article 32 or Article 226 of the Indian Constitution. This writ prevents the inferior court from proceeding with a case where they have no jurisdiction or where they have exceeded their jurisdiction. The primary objective is to supervise the inferior courts and confine them with their limits of jurisdiction.
Under which circumstances writ of prohibition is issued:
• An act is done without jurisdiction or excess of jurisdiction
• Act in violation of natural justice
• The act which is ultra-virus or unconstitutional.
• The act which contravenes the fundamental rights.
The writ of prohibition is available only when the proceedings of the case are pending. It applies to the cases where the order has not been delivered yet. This writ helps people from arbitrary administrative actions.
Writ of certiorari means to certify. This writ helps to correct the illegality of decisions taken by subordinate courts. It orders an inferior court or tribunal or any other authority to transfer the record of proceedings disposed of or a case pending or for quashing the same. This writ can never be used for transmitting records or for quashing an act or ordinance. The grounds on which certiorari can be applied are:
• No jurisdiction or excess jurisdiction
• Need for correcting any error in the jurisdiction
• Abuse of jurisdiction
• Disregard of principles of natural justice.
• For correcting any error of law apparent on the face of records.
The writ of certiorari quashes the orders which fall under these grounds. The only error of law can be corrected by this writ, not the error in facts howsoever grave it may be. Error on the face of record should be self-evident without any examination to establish it. The writ of certiorari issued by the High Court is a supervisory jurisdiction, so the court cannot act as a court of appeal. Certiorari can be applied only after the order or decision has been pronounced by the court.
The writ of quo warranto questions the authority of a person in government authority. It is filed against the title of the holder in the office. This is a judicial order which asks the person to show by what authority he holds his position in the public office. The writ issued to expel a person from his office, if such person does not have valid title or authority to hold office. It reviews the functions of administrative authority which appoints the people for various positions in public office. It is, therefore, a mode of judicial control. The position in public office is given to the people who have the right. The petition for quo warranto can be filed by the aggrieved party or any other person. Writ of quo warranto cannot issue to a person who is not holding public office.
The writ petition under the constitution has helped the growth of Public interest litigation in India. Many people are approaching the court for the protection of their fundamental rights. The judiciary is vested with vast powers to take control of administrative actions when it violates the fundamental rights of the citizens or natural justice. Therefore, the rights of the citizens are not suppressed by arbitrary actions. High Court can interfere even when there is a violation of legal rights. The choice is with the aggrieved party, they can either appear to High court or Supreme Court. People should be aware of these constitutional remedies in order to protect their rights.