This article has been written by Mr. Satyam Sah, a 3rd year law student of Bharati Vidyapeeth (Deemed to be University) New Law College Pune.
Introduction
In common law, a writ (latin word) is a formal written order issued by the court with administrative or judicial jurisdiction. The Prerogative writs were taken from the English law. Due to the influence of British law and their control in India, these writs were known to Indian law even before the Constitution was formed. The Supreme Court of India is given the authority to issue writs under Article 32 of the Indian Constitution in order to enforce any of the fundamental rights guaranteed under Part III of the constitution.
The Constitution also stipulates that, in addition to the aforementioned, the Parliament may grant the Supreme Court the authority to issue writs for purposes other than those outlined above. Thus, the ability to issue writs is primarily a provision made to ensure that every citizen has access to the Right to Constitutional Remedies. As is well known, the Right to Constitutional Remedies serves as a guarantee for all other fundamental rights enjoyed by Indian citizens. High court also has the power to issue writs for the enforcement of fundamental right and for any other purpose. Writ petitions are filed in High court by invoking Article 226 and Article 227 of the Indian Constitution.
Types of Writs
1. Mandamus
2. Certiorari
3. Habeas Corpus
4. Quo Warranto
5. Prohibition
1. Mandamus
Mandamus comes from a latin word which means “We command” or “We order”. A writ of mandamus is a directive from a court to an inferior court or lower level government official directing them to carry out their responsibilities properly or to stop abusing their discretion. By way of this writ superior court directs the performance of specified official duty or act.
One of the most crucial aspects of the Writ of Mandamus is that it cannot be used against private individuals; as a result, only the State or those who hold positions that fall under the category of public offices may be required to perform an act or refrain from performing one.
A citizen has the option to file a writ petition with the Supreme Court or a High Court to seek remedy if their constitutional rights are violated. As simple as this may seem, the drawn-out and complicated nature of litigation makes it difficult, if not impossible, for the weak and disadvantaged to access justice. Any person with a sense of civic duty may also approach the courts on behalf of the interests of the general public.
In Hari Krishna Mandir Trust v. State of Maharashtra, 2020 SCC OnLine SC 631, SC stated in this case that the court is duty bound to issue a writ of Mandamus for enforcement of a public duty. Writ of mandamus enforces the legal duty on the public officials. There must be a statutory duty which exists before it can be enforced through mandamus. Court also stated that in appropriate cases, in order to prevent injustice to the parties, the Court may itself pass an order or give directions which the government or the public authorities should have passed, had it properly and lawfully exercised its discretion.
Another example of mandamus can be seen in recent issue of Joshimath sinking where a writ petition was filed in SC seeking mandamus to the union of India and to the national disaster management authority to assist immediately in the reparation work in Joshimath.
However Supreme Court refused to entertain the petition on the ground that Uttarakhand High Court already seized of the matter.
2. Certiorari
Certiorari is a latin term which means “to be made certain”. Generally, writ of certiorari is issued by a superior court, directing an inferior court, tribunal, or other public authority to send the record of a proceeding for review. In simple words, writ of certiorari grants higher court to review the decision of lower courts.
In India certiorari can be issued by Supreme Court of India to protect fundamental rights of the citizens. However parliament can give this power to any other court for enforcing fundamental Rights. Both High Court and Supreme Court of India can issue writ of certiorari for protection of any other legal right other than fundamental rights. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.
In case of Hari Vishnu Kamath vs Syed Ahmad Ishaque And Others, SC explained the scope of certiorari. SC held that writ of certiorari is issued when there is an error of jurisdiction or when the court has not given proper time to heard the parties or violated the principle of natural justice.
In Syed Yakoob v. Radhakrishnan , the Court opined that an error of law which is apparent on the face of the record can be corrected by a writ of certiorari but not an error of fact, howsoever grave it may appear to be.
3. Habeas Corpus
Habeas Corpus is a latin phrase which means “you may have the body”. Writ of Habeas Corpus dictates that a person who has been detained or imprisoned must be brought before a court to determine whether or not they have been detained lawfully. This writ is important to prevent unlawful detention by government authorities. It not only demands explanation why a person is detained but also demands production of person before the court.
Recently Kiren Rijiju informed in the Lok Sabha that 52 Habeas Corpus Petitions are pending in Supreme Court of India.
ADM Jabalpur vs Shivkant Shukla is a landmark decision case related to Habeas Corpus. The controversial judgment was passed by PN Bhagwati during the phase of emergency. This case is also known as Habeas Corpus case. The Habeas Corpus decision has drawn harsh criticism for siding with the government rather than defending individual liberties. A bench of judges ruled in favour of the termination of a person’s right to be free from unjust arrest during the Emergency of 1975–1977. Court in this case ruled that individual liberty can be curtailed during the emergency and no person can go to the court for enforcement of their fundamental rights.
In Sunil Batra v. Delhi Administration, the petitioner, Sunil Batra, was a prisoner who complained in writing to the court about the treatment given to another prisoner in Tihar Jail. In this case, the Supreme Court approved the conversion of letters into writ petitions for habeas corpus (or other purposes) by the court.
4. Quo Warranto
Writ of Quo Warranto simply means “by what authority”. A person who holds a position is required to show by what authority he holds the office through this writ.
The main purpose of this writ is to stop the person who does not have the authority to hold the office. If after investigation, it is found that the person holding the office does not have a valid title to hold the office, the court can prevent him from continuing in the office and ask him to vacate the position.
Writ of quo warranto is issued against government official to find out by what authority they are exercising their powers.
In Amarendra v. Nartendra, the Court held that the writ lies in respect of a public office of a substantive character and not a private office such as membership of a school managing committee.
5. Prohibition
Prohibition means “to forbid”. Writ of Prohibition is generally issued by higher court to lower court to stop the latter from exceeding its jurisdiction. It can be issued against judicial and quasi- judicial bodies.
Writ of prohibition cannot be issued against private individuals, legislative and administrative bodies. The difference between writ of certiorari and writ of prohibition is that the writ of prohibition is issued by higher court to lower court to go ahead with the trial of the case in which the court exceeds jurisdiction and writ of certiorari is to quash the order of the lower court by high court if it exceeds it jurisdiction.
In Prudential Capital Markets Ltd v. The State of A.P. and others, (2000) it was questionable whether the prohibition writ could be issued against the district forum/state commission which had already passed judgments in the depositors’ consumer cases. The Court held that after the execution of the order, the writ of prohibition cannot be issued, the judgment can neither be prevented nor stopped.
Conclusion
Writs are constitutional remedies provided to citizens for the protection of their fundamental rights. The power to issue writs has been provided to Supreme Court and High Courts of India under Article 32 and Article 226 of Indian Constitution respectively. The court must use this power with utmost caution with aim to protect fundamental rights of the citizens.
REFERENCES
1. The Constitution of India, 1950
2. Hari Krishna Mandir Trust v. State of Maharashtra, 2020 SCC OnLine SC 631
3. Hari Vishnu Kamath vs Syed Ahmad Ishaque And Others
4. Syed Yakoob v. Radhakrishnan
5. ADM Jabalpur vs Shivkant Shukla
6. Sunil Batra v. Delhi Administration
7. Amarendra v. Nartendra,
8. Prudential Capital Markets Ltd v. The State of A.P. and others, (2000)
9. https://byjus.com/free-ias-prep/types-of-writs-in-india/
10. https://blog.ipleaders.in/writs-under-the-constitution/
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