Nov 30,2022 | 9 min read

WRITS UNDER INDIAN CONSTITUTION

 

 

Many powers have been granted to the Supreme Court and the High Courts, which they use to deliver justice to the people. The ability to issue writs is one of the most significant instruments or powers that the constitution has given the courts. A Writ is a directive issued by a court to another person or authority requiring them to act or refrain from acting in a specific manner. Thus, writs are a crucial component of the Courts' judicial authority.

 

In India, the Supreme Court has been given the authority to issue the writ in accordance with Article 32 of the Constitution. When a citizen's Fundamental Rights are violated, they have the right to directly petition the Supreme Court for the enforcement of their rights under Article 32, and the Court may issue the necessary writ for doing so.

 

Article 226 also grants the High Courts of India the authority to issue Writs. While citizens can only appeal to the Supreme Court when their fundamental rights are violated, they also have the option to appeal to the High Court for the issuance of Writs in situations where the person’s fundamental rights are not violated. Therefore, the power of the High Courts in granting relief under writs are higher  as compared to the Supreme Court.

 

TYPES OF WRITS:

 

(i) Writ of Habeas Corpus: It is the most important writ for individual freedom. "Let us have the body," is what Habeas Corpus means. A person can ask the court for the issuance of Habeas Corpus after being arrested. In order to determine whether the individual has been detained properly or not, a court may order the detaining authority to bring the arrested person before it. The court may grant orders for the person's release if it finds that they are being held unlawfully.

The habeas corpus concept guarantees that a prisoner can be freed from custody that is unjustified, or incarceration for which there is insufficient justification or proof. But in case the detention has been found justified in that case, the court will not grant writ.

 

In the case of Sunil Bhatra V/S Delhi Administration, AIR 1980 SC 1795, it was held that the writ of Habeas Corpus may be issued not just to free someone from an unjustified incarceration but also to shield detainees from cruel and inhumane treatment. The habeas corpus writ receives a diverse life and practical utility from the dynamic role of legal remedies as a bulwark of liberty even inside prisons. In DS Nakara vs. Union of India, 1983 1 SCC 304, it was held that registered societies, non-political, non-profit organisations and other voluntary organisations have the right to file a habeas corpus petition under article 32 of the constitution on behalf of the elderly and disabled pensioners who are unable to approach the court directly.

 

(ii) Writ of Mandamus : Mandamus is an order from a higher court directing a lower court, tribunal, or public authority to carry out an action that is within the scope of their power. It is given to ensure the fulfilment of public obligations and to uphold private rights that the government has refused to grant. An order of mandamus is a directive that directs someone, a company, or a lower court or tribunal to carry out a specific action that relates to their position and is in the nature of a public obligation. Where there is a clear legal right, but no explicit means of enforcing that right, and where unreasonableness has no place, a writ of mandamus may also be issued.

 

Vijaya Mehta v. State of Rajasthan, AIR 1980 Raj 207, in order to compel the State to fulfil its obligation of establishing a commission to investigate climate change and floods in the State, a petition was filed with the High Court. The Writ of Mandamus was not issued in this case because the Court determined that the State Government would only be required to name a commission once a resolution was approved by the Legislature and that it was a discretionary rather than a mandatory responsibility.

 

The Writ of Mandamus does not lie in the circumstances where the duty is only discretionary, any private entity where the duty is not entrusted to the public and also in those places where the obligation arises from contract.

    

(iii) Writ of Certiorari : This Writ is of a remedial type, which implies that it seeks to fix an error that is plainly visible in the records. A Writ of Certiorari is one that a superior court issues to a lower court. This may be issued if the superior court feels that the inferior court has exercised its jurisdiction excessively or if the higher court desires to decide the issue in the case itself. In case of Province of Bombay v/s Khushaldas, AIR 1950 SC 22, it was decided that a writ of certiorari would be invalid anytime any person acting in excess of their legal capacity to decide issues affecting subjects' rights and having the duty to act judicially did so.  Further, in the case of Hari Vishnu v/s Ahmed Ishaque, AIR 1955 SC 223,  The Supreme Court ruled that if an error was not self-evident and needed to be examined and argued in order to be established, it could not be considered to be an error on the face of the record. A writ of certiorari can be used to correct a legal error that is obvious from the record, but no matter how serious the error may seem, it cannot be used to fix a factual error. The court granting a writ of certiorari acts in a supervisory jurisdiction and not an appellate jurisdiction, which is the basis for the rule.

 

(iv) Writ of Prohibition: Writ of prohibition, often known as "Stay Order," is a legal document that forbids or stops anything. When a lower court or other entity tries to exceed its authority or jurisdictional boundaries, this writ is issued. It is a writ given by a higher court to a lower court or a tribunal banning it from acting in a way that is not within its purview. The lower court's ongoing proceedings end after the issuance of this writ, among other things. Any High Court or the Supreme Court may issue a Writ of Prohibition to any lower court, forbidding the latter from continuing proceedings in a specific matter when it lacks lawful trial jurisdiction. In the case of S. Govind Menon Vs. Union Of India, AIR 1967 SC 1274 it was held that the actions that are to be forbidden do not continue after prohibition. Instead, it seeks to halt the subordinate tribunal's procedures. It is primarily a collateral case proceeding between two tribunals, one superior and the other subordinate, where the latter, by virtue of its power of supervision over the former, restrains it within its proper jurisdiction. If the court proceeding has matured into a decision, the writ cannot be issued. Only when the court proceeding is ongoing is the time when the writ can be issued.

 

(v) Writ of Quo-Warranto: Quo-Warranto, which is Latin for "by what warrants?" It is a writ that is intended to prevent someone from holding a public position to which they are not legally entitled. Any unlawful assumption of a public position or usurpation of a public office by anyone is prohibited by the Writ of Quo Warranto. For instance, a 62-year-old person has been appointed to a public job even though the retirement age is 60. The rightful High Court may now issue a Writ of Quo-Warranto against the offender and declare the position vacant. In the case of Jamalpur Arya Samaj Sabha v/s Dr. D. Ram, AIR 1954 Pat 297, it was decided that the high court declined to issue a writ Quo-Warranto against the working committee members of the private organisation Bihar Arya Samaj Sabha. Quo Warranto literally means "by what authority." A person holding a public position or governmental privilege may be the target of a writ of Quo-Warranto. Following the issuance of the summons, there will be judicial processes in which the legitimacy of a person's office or governmental privilege will be contested. The writ demands that the party in question inform the Court of the legitimacy of his office.

 

References:

 

  1. https://www.latestlaws.com/articles/analysis-of-types-of-writs-under-constitution-of-india-landmark-cases-by-tanu-kapoor#_ftn6

  2. https://blog.ipleaders.in/writs-under-the-constitution/

  3. https://www.legalserviceindia.com/legal/article-68-types-of-writs-in-indian-constitution.html

  4. https://prepp.in/news/e-492-writs-types-and-scope-indian-polity-notes

 

 


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