Types of Writs in India Constitution
‘Writ’ is an order directing someone to perform particular duty and is issued by the Administrative and Judicial Authorities. In India, Writs can only be issued by the Supreme Court (Articles 32 and 139) and High Court (Article 226).
|The Supreme Court can issue a Writ in case of violation of Fundamental rights only.
|The Supreme Court can issue a Writ in case of Non-Fundamental Rights.
|The High Court can issue a Writ under this article in case of violating both the Fundamental Rights and any other Constitutional Rights.
Writs in the Indian Constitution
Writs are nothing but written orders that are either given by the Supreme Court or the High Court. These written orders command Constitutional remedies for the Indian Citizens, against the violation of their rights or fundamental rights. They have the right to file a petition with the Supreme Court or the High Court to initiate legal actions to enforce their basic fundamental rights.
The Indian Constitution grants the Supreme Court and High Court extensive powers to administer justice. One of the most important powers of both Courts is to issue a Writ. When the Writ commands are given by the Court, they are an essential part of the judicial power of the Court. The Supreme Court has the authority to issue the Writ under Articles 32 & 139. The High Court has the authority to issue the Writ under Article 226.
Types of Writs
The Supreme Court or the High Court protects the fundamental rights of the citizens. They have many dominant powers. They have extensive power to issue the 5 different types of Writs. They are mentioned below :
- Habeas corpus
Let us discuss all these types of Writs in detail –
1. Have a body
- In Latin, the term Habeas Corpus means ‘to have the body of ’.
- The Writ of habeas corpus is issued by the Courts in those cases where a person is illegally detained. It is one of the most effective remedies available to a person who is an unlawful detainer.
- Through Habeas Corpus, the Supreme Court/the High Court commands the person or authority who has detained or restrained another person to present such a person before the Court.
- The Court commands a person or authority to provide the grounds (Proofs or reasons) on which the person has been detained and if that person/authority fails to provide a valid ground, or the Court examines that the person is unlawfully detained, will be released by the Court immediately.
Example: Rohit was making threats to Riya, so, the father of Riya, who is a police officer arrested Rohit and imprisoned him. Riya’s father didn’t file FIR and did not follow the procedure to arrest Rohit. So, Rohit is unlawfully detained. Aryan who is a brother of Rohit filed an application in the respective Court and by issuing the Writ of Habeas Corpus, the Court set Rohit free.
Rules for Habeas Corpus in India
The Court can issue the Habeas Corpus Writ against the individuals or the public authority. Habeas Corpus Writ cannot be issued in the following cases:
- When the detention is legal.
- When the competent Court issues the detention.
- When the detention is outside the governance of a particular High Court.
This petition of Writ can be applied in the High Court or Supreme Court by the person who is detained but it can also be filed by some other other friend or relative.
- The term Mandamus, in Latin, means ‘We Command’.
- It is a command issued by the Court to a Public Authority/Official asking them to perform their official duties that have failed or refuse to perform.
- The Mandamus Writ can also be given to an Inferior Tribunal, Board, Corporation, or any other type of administrative authority.
Example: If a Police officer refuses to file an FIR, then a written complaint shall first be filed addressing his senior, followed by a complaint to the District Magistrate. If still unable to get a remedy, then may apply for issuing Mandamus Writ.
Rules for Mandamus in India
The Mandamus Writ cannot be issued against a private person and therefore only the State or the people who hold any office which falls in the category of a public office can be compelled to do or to abstain from doing an act.
The Court can refuse to issue Mandamus Writ in the following cases:
- If the rights of the petitioner have lapsed.
- The duty had already been fulfilled by the authority against which such a Writ is sought to be issued and therefore issuing the Writ would amount to nothing in such a situation.
- When the duty is discretionary, not mandatory.
- Against a President or State Governors.
- Against the Chief Justice of the High Court serving in a Judiciary.
- The term Prohibition means ‘to Forbid’.
- This Writ is not issued often and is an extraordinary remedy that a Supreme Court issues to inferior Courts or Tribunal Courts for stopping them from deciding a case because these courts do not have the jurisdiction.
- Whenever during the proceedings, the Supreme Court or High Court is satisfied that the Lower Court does not have the jurisdiction to try the case, they may forbid that Court to pronounce the judgment.
- If the Court or tribunals does not have jurisdiction and it still decides the case, it will be an invalid judgment because for an act to be legal it should have the sanction of the law.
Real Example: (Tamil Nadu Tobacco Co. Ltd. Vs Union Of India) Madras High Court prohibited the District Court to announce the judgment under Article 226 of the Constitution of India.
Example: If a District Court is hearing an appeal against the judgment of the High Court, such an act is bound to be prohibited because the District Court does not have the power to hear such an appeal. So, a Writ of Prohibition will be issued against such an act of the District Court.
Facts about the Prohibition Writ
- The Writ of Prohibition can be issued only against a judicial or a Quasi-judicial body and it can not be issued against any administrative body.
- It can be issued if an order is a violation of Natural Justice or is unconstitutional.
- The Writ of Prohibition can not be issued against administrative authorities, legislative bodies, and private individuals or bodies.
- The term Certiorari means ‘to be Certified’/‘to be informed’/ or to Quash.
- Certiorari is a Writ that is issued by a Superior/Higher Court to an inferior or lower Court either to transfer a pending case or to quash the order of the tribunal in a case.
- This can be issued when the Superior/Higher Court wants to decide a matter in the case itself or if there is an excess of jurisdiction.
- Certiorari Writ can also be issued when there is a fundamental error in the procedure followed by the lower or inferior Court or if there is a violation of the principles of natural justice.
- If the Superior/Higher Court finds out that there has been a violation of natural justice or a fundamental error in the procedure adopted, it can quash the order of that Inferior/Lower Court.
Example: (A.K. Kraipak Vs Union of India, 1970) Supreme Court held that the judge who makes the committee shall not have any personal interest in it.
Difference between Prohibition and Certiorari
Both the Writs Prohibition and Certiorari appear to be the same but there is one major difference between the two:
|In the Writ of Prohibition, the Higher Court issues the Writ before the final verdict is passed by the lower Court and therefore is a Preventive Remedy.
|In the Writ of Certiorari, the Higher Court issues the Writ after the Lower Court has made the final verdict. Thus, this is a Corrective Remedy by which the order of the Lower Court is quashed.
5. Which warrant
- The term Quo Warranto means ‘by what authority or warrant’.
- The Writ of Quo Warranto is to help the illegal expropriation of a public office by a person. Through this Writ, the Court enquires into the legitimacy of a claim of a person to a public office.
- It is an effective measure to prevent people from arrogating public offices.
- The power to issue this Writ is discretionary to the Courts and therefore nobody can demand that the Court is bound to issue the Quo Warranto Writ.
Example: Ajay, who’s a private citizen and has no qualifications for the post of sub-inspector but he occupies a similar office. Then, a Writ of Quo Warranto can be issued against Ajay for the inquiry to question his authority on which he has taken control of the office of sub-inspector.
Rules of the Writ of Quo Warranto
- Quo Warranto is issued when the public office is assumed wrongfully/illegally by an individual.
- Quo Warranto is issued when the office was created by the constitution or law and the person holding the office isn’t qualified to hold the office under the constitution or law.
- The Writ of Quo warranto can not be taken against the Private and Ministerial offices.
Types of Writs- Conclusion
There are five types of Writs which are Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto. All these Writs are effective methods of enforcing the rights of the people and compelling the authorities to fulfill the duties which are bound to perform under the law.