This article is written by Mr. Krishna Sharma, a student studying BA.LL.B from Maharashtra National Law College, Aurangabad. The author is a 1st year law student.
5 types of writs in Indian constitution.
Introduction:
One of the fundamental rights, writs, has the authority to defend other fundamental rights as well. Writs are the legal procedure used by courts to ensure that the rights guaranteed by Part III of the constitution are fundamental. Given that it can only be exercised by the Court of Record, Writ jurisdiction is extraordinary. The Court of King’s Bench v. England case served as the precedent for this writ of mandate. To write an order is to writ. Only fundamental rights are subject to writs from the Supreme Court. However, if an alternative remedy is available, the High Court may issue a writ for fundamental rights as well as any other legal right. Without going through the lower courts’ processes, one can go directly to the Supreme Court.
Against whom writ can be issued?
Fundamental rights are typically enforceable against the “State,” and Article 12 defines the term “State.” Therefore, authorities covered by Article 12 are subject to the Supreme Court’s writ jurisdiction. In addition, certain fundamental rights, such as those referred to in Articles 17, 23, and 24, are also applicable to private individuals. The writ may also be issued to private individuals in these circumstances. Union of India v. People’s Union of Democratic Rights. We must first understand where and why writs are mentioned in the Indian Constitution in order to understand the Writs. In Articles 32 and 226 of the Indian Constitution, the word “Writ” is used.
Introduction to article 32 and article 226:
Without an effective solution, there cannot be a right. If an appropriate and efficient mechanism for their enforcement is not provided, the fundamental rights guaranteed by the Constitution would be meaningless. The courts have the authority under the Constitution to invalidate laws that violate fundamental rights. Without Article 32, the other fundamental rights would lose much of their significance. However, Article 32 can only be used to prevent violations of fundamental rights; in contrast, Article 226 protects fundamental rights for all purposes. The heart and soul of the constitution are Articles 32 and 226.
Nature or Types of the writs.
There are five types or nature of writs, these are as follows:
- Mandamus.
The Latin word “Mandamus” means “we command.” It is a writ that the court issues to the public authority asking that it carry out the legal obligation imposed upon it. The following criteria must be met in order for a mandamus to be granted:
- Legal Rights: A person who requests a mandamus writ must have legal rights that he wants to be upheld. They must be protected by the law and subject to judicial enforcement.
- Legal duty: The authority that the mandamus is being requested from must have a corresponding legal obligation to uphold the applicant’s rights. The execution of legal obligations must be mandatory and not optional.
- Demand & Refusal: The authority must have been asked by the applicant to enforce legal rights on their behalf, and they must have declined. Such a rejection could be outright or subliminal. The Supreme Court ruled in Kumari Shrilekha Vidyarthi v. the State of Uttar Pradesh that public authorities must treat people fairly, even in contractual disputes, and that if they don’t, people can file a complaint under Article 226.
2. Writ of Habeas Corpus:
The Latin phrase “Habeas corpus” means “to have the body” and is a Latin term. The writ is in the nature of an order, requiring the person who detained another to inform the court of the reason(s) for their detention. If the prosecution is unable to provide a convincing defense, the court will release the person who has been detained. In this way, Habeas corpus offers an immediate and efficient remedy for unlawful detention. This remedy is available both against the government and against the general public. In general, the court will not grant compensation when granting a writ of habeas corpus, but in certain circumstances, the court may do so in order to effectively enforce the right.
In Rudul Sah v. State of Bihar, SC noted that one means to avoid/prevent a violation of Article 21 is by compensation.
3. Writ of Prohibition:
This is a preventative writ. It is a direct order to a lower tribunal or court prohibiting it from continuing the proceedings on the grounds that they are not within the court’s jurisdiction or that some error is readily evident from the record. This writ forbids the court and other quasi-judicial authorities from exerting authority over matters that are not within their purview.
4. Writ of Certiorari:
The word “Certiorari” means “to certify.” This writ is being issued to correct a subordinate court or tribunal’s improper jurisdiction. It is used to determine whether or not authorities have gone beyond their authority. It also falls under the category of a corrective writ in which the court has supervisory authority.
Relation between Writ of Prohibition and Writ of Certiorari:
Sister Writs is another name for these two complementary writings. Both writs are filed in opposition to illegitimate actions taken by lower courts. The declared illegal judgment is overturned in certiorari. While illegal proceedings are ongoing, the writ court transfers the case to the appropriate court in prohibition. The only distinction between these two writs is this.
5. Writ of Quo-Warranto:
“Quo-warranto” means “What is your authority,” in Latin. It is an option for redress in cases of improper use of public office. A person holding public office may be called before the court to demonstrate how or by what authority he holds the position. He can be dismissed from his position if he lacks power. This writ essentially regulates how appointments are made to public offices by the executive branch. It is crucial that the position be a public one rather than a private one. The office holder must demonstrate their right to the position by occupying it in reality. The Supreme Court ruled in Ram Singh Saini v. H.N. Bhargava, 1975, that a Writ of Quo Warranto could only be used against a private office.
Quo warranto guards against a person taking over a public office without authorization. Before issuing a writ, the court must determine that the office in question is public, created by law or the constitution, and that the person holding the office is clearly ineligible to hold it due to a violation of one or more of these requirements. The person against whom the writ of quo warranto is directed must demonstrate how they have the right to hold the position in question. The High Court will not take into account any additional factors that might be important for the issuance of a writ of certiorari when issuing such a writ, instead choosing to publicly declare the appointment’s illegality.
Conclusion:
The Supreme Court has the authority to grant Writs under Article 32, and High Courts have that authority under Article 226 of the Indian Constitution. These Writs are orders issued by the Courts to the public authority that is responsible for carrying out the act. There are five different sorts of Writs: Habeas Corpus, Mandamus, Certiorari, Quo Warranto, and Prohibition. All of these Writs are efficient ways to uphold citizens’ rights and force the government to carry out its legal obligations.
The Mandamus has the broadest reach of these Writs. While other Writs are only granted under specific conditions, such as when someone is wrongfully held (Habeas Corpus) or when a court exceeds its power (Certiorari), Mandamus can be issued in situations where there is an authority in the course of duty. As a result, all of these Writs have been crucial in protecting citizens’ rights and expanding the reach of courts’ judicial review authority.
References:
https://www.geeksforgeeks.org/types-of-writs-in-indian-constitution/
https://www.legalserviceindia.com/legal/article-68-types-of-writs-in-indian-constitution.html
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