This article has been written by Ms. Shruti Medhekar, a 4th year B.A.LLB student of Keshav Memorial College of Law.
WRIT:
The constitution of India vests the Supreme Court and the High Courts with the power of issuing writs when and in the matters concerned. It is one of the important powers vested with both the courts apart from its other powers which provide justice to the system and the public.
Generally writ is a formal written order issued by a body with administrative or judicial jurisdiction. In the present modern usage the body issuing writs is the court of law. A writ is a command given by the court to a person or to an authority to do or not to do some work or to act or not to act in a particular way.
In India both the Supreme Court and the High Court have the powers to issue the writs within a prescribed procedure. These writs can be issued under two heads:
- Under article 32 of the Indian Constitution the Supreme Court can issue the writs.
- And under article 226 of the Indian constitution the High Court can issue the writs.
These writs are available to the individuals under the head of constitutional remedies as one of their fundamental rights. It acts as a remedy to the individuals when any of their fundamental rights have been violate or infringed by any other individual or authority.
TYPES OF WRITS:
The constitution of India provides for five types of writs. They are:
- Writ of Habeas Corpus
- Writ of Mandamus
- Writ of Prohibition
- Writ of Certiorari
- Writ of Quo warranto
HABEAS CORPUS:
The term habeas corpus is a Latin originated term which means “to have the body.” The nature of this writ is remedial. It acts as an order for calling upon and asking to be present in person before the court if the individual has been detained or arrested to know the grounds of detention or arrest. The court further examines the legality of the detention and if it finds that there were no proper and reasonable grounds the court will ask the authority to set free the person who was illegally detained.
The scope of this writ of habeas corpus was explained by the Supreme Court in State of Maharashtra vs Bhaurao Punjabrao Gawande as a great constitutional privilege and effective remedy against illegal restraints.
This writ acts an effective and expeditious remedy in case of illegal restraints. The State has to present all the material facts before the court to prove the validity of restraint. The court will then take a quick look over the matter of wrongful restraints and if found illegal the immediate release of the person restrained shall be granted.
The writ of habeas corpus can be filed by the detenu himself or in cases where the detenu is not able to his family, close relatives or friends can file. Further the writ is not time barred. Delay in the filing of writ does not waive the right of detenu.
Further under writ of habeas corpus no compensation will be provided. And this writ cannot be filed prior to the actual wrongful restraint. Additionally this writ can be used even during emergency period for the enforcement of fundamental rights guaranteed under article 20 and 21.
In the case of ADM Jabalpur vs Shivakant Shukla, 1976 2 SCC 521, 612 the Supreme Court held that during emergency period all the fundamental rights are suspended and no person has right to move to the court foe the enforcement of their fundamental rights. But after the 44th constitutional amendment stated that the rights conferred under article 20 and article 21 cannot be suspended even during emergency.
As well said by Thomas Jefferson, “The Habeas Corpus secures every man here, alien or citizen, against everything which is not law, whatever shape it may assume.”
Further Lord Wright also stated that, “the incalculable value of habeas corpus is that it enables the immediate determination of the right of the appellant’s freedom.”
MANDAMUS:
The term mandamus literally means we command. The writ of mandamus means a command or order issued by a superior court to its subordinate or inferior authorities to do or restraint from doing any act of statutory nature.
It also acts as a remedy to the public whose right has been infringed. It acts a discretionary remedy. It means it provides remedy when no other alternative remedy is available against the violation of the particular right. The essentials to file a writ of mandamus is that the petitioner must have a legal right and the authority or the opposite party must have a corresponding duty to perform. And on insistence to perform if the authority denies the writ can be issued for the performance of such act.
It can be filed by any person whose right has been infringed and it lies against any authority who does not perform the duty imposed by law on it.
PROHIBITON:
Prohibition means to bar or to forbid. The writ of prohibition is a judicial remedy and it can be issued against the judicial and quasi-judicial authorities. The object of this writ is to restrict and prevent the subordinate courts and authorities to perform in excess of their jurisdiction.
This writ acts as a preventive remedy when a subordinate court or authority acts in excess of jurisdiction vested with them. It forbids the ultra vires act of the judicial and quasi-judicial authorities. Further this writ can be issued only in the proceedings of two courts but not between private individuals.
This writ can further be issued when there is absence or excess of jurisdiction, violation of natural justice, question of unconstitutionality, infringement of fundamental rights, and error of law.
The writ of prohibition can be filed by any individual who is on face apparently aggrieved or any other stranger too if there is violation of law which is easily detectable. And is filed against judicial and quasi-judicial authority.
CERTIORARI:
Certiorari is a Latin term which literally means to certify. It is also considered as one of the effective remedy. The writ of certiorari acts as a certification and correction mechanism at the hands of superior courts on the decisions given by the subordinate courts and other quasi-judicial authorities.
The superior courts scrutinizes and examines the records and decisions of the subordinate courts and other quasi-judicial authorities. It acts as a review mechanism and provides remedy when there is any violation of law affecting the public.
This writ is similar to that of the writ of prohibition. It can be issued when there is excess or absence of jurisdiction, jurisdictional fact, and error apparent on face and violation of natural justice.
This writ can similarly filed by any aggrieved person or by or any person if the question effects the public at large against any judicial or quasi-judicial authority. Ryots of Garabandho vs Zamindar of Parlakimedi was first leading decision on writ of certiorari.
QUO WARRANTO:
Quo warranto literally means what is your authority. It is a prerogative writ. This writ is issued in order to question the office of any public nature as by what authority he is holding such office. The court asks the concerned person that by what authority he is holding the office. And if the courts findings expressly state that the person has no authority he will be removed and restricted from holding that particular office.
It technically means that if the particular person by law has no power authority to hold and enjoy the respective office he will be barred from that. It generally protects the interest of public when any office holder infringes their right by means and power of the office which he obtained illegally.
This writ can be filed by any person as the office is of public nature and it lies against the person claiming the office.
All the above mentioned writs are remedial in nature and protects the interest of public at large. These writs are not time barred and can be filed at any time until the infringement is in continuance. These writs issued by the courts and the decision further given by them are to be obeyed and disobeying the decision amounts to contempt of court and proceedings will be initiated against the non-abiders.
CONCLUSION:
The writs provided under the constitution of India acts as constitutional remedies to protect the interest of public when there is any infringement. The constitution and the other substantive laws provide other remedies but these writs act as an effective and expeditious way of providing relief to the public.
These writs ensure the public that when there is any infringement or violation of their rights there will be not any unnecessary and unreasonable delay in providing justice to them. It acts as a powerful mechanism of justice. It revives public’s faith in the justice system.
REFERENCES:
- State of Maharashtra vs Bhaurao Punjabrao Gawande
- ADM Jabalpur vs Shivakant Shukla, 1976 2 SCC 521, 612
- Ryots of Garabandho vs Zamindar of Parlakimedi
- Rudal Shah vs State of Bihar, 1983 4 SCC 141: AIR 1983 SCR 1086
- Tan Bug Taim vs Collector of Bombay
- Hari Vishnu Kamath vs Syed Ahmad Ishaque, AIR 1955 SC 233: 1955 1 SCR 1104
- Surya Dev Rai vs Ram Chander Rai, 2003 6 SCC 675: AIR 2003 SC 3044
- Sonu Sampat Shewale vs Jalgaon Borough Municipality
- Indiankanoon.com
- Wikipedia.org
- Lectures on Administrative Law – C.K. Takwani
- Constitution of India – V.N. Shukla
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