Must Knows

Writs: What is a writ under the Indian Constitution and when is it used?

[ecis2016.org] A writ petition is filed before a court, to seek help to reinforce the fundamental rights of people.

A writ is a remedy available under the Indian Constitution. A writ petition is filed before a court, to seek help to reinforce the fundamental rights of people. The word ‘Writs’ means a command in writing and it is issued by the courts, commands the concerned authority or person, to perform a specific task. A writ petition can be presented by any individual, organisation, or court to the judiciary.

Writs under the Articles 32 and 226 of the Indian Constitution

The Indian Constitution provides for ‘fundamental rights’, under Part III. These rights include the right to equality, right to life and liberty, etc. Writs ensure that these fundamental rights are protected and meted out to people when in need. To protect these Fundamental Rights, the Indian Constitution provides the provision for writs under Articles 32 and Article 226, which give people the provision to approach the Supreme Court or high courts against the violation of fundamental rights. Additionally, the highest court can also issue writs, to ensure that lower courts uphold the fundamental rights.

Purpose of writs in India

Writs under the Indian Constitution have the following purposes:

  • Upholding and protecting Fundamental Rights.
  • Curbing unlawful activities of individuals.
  • Preventing excess jurisdiction of courts.
  • Commanding public offices to perform their duties.
  • Preventing unlawful occupation and creation of public offices.
  • Curbing unlawful punishments by lower courts and tribunals.
  • Curbing the maltreatment of people in lawful detention.

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Various types of writs in India

Article 32 of the Indian Constitution names and describes five types of writs. Each writ is issued for different purposes and under different circumstances. The five writs in Article 32 are:

  • Habeas Corpus
  • Mandamus
  • Quo Warranto
  • Certiorari
  • Prohibition

 

What is a writ of Habeas Corpus?

‘Habeas Corpus’ literally translates into ‘to have the body’. This writ focuses on unlawful imprisonment or detention by individuals, authorities, or organisations. When this writ is issued, the prisoner and the concerned authority are brought before the court to determine the legality of the imprisonment. If court proceedings find the detention unlawful, the prisoner should be released and the detention cannot be carried forward. There are no limitations to the application of writs. Every authority, private or government, must prove that the detentions have legal grounds to stand on. Additionally, Sunil Batra v. Delhi Administration case also added that the writ can be used to protect the prisoners even after their imprisonment is proved to be legal.

Some important details on Habeas Corpus against unlawful detention are:

  • Any case of detention warrants a follow up with a magistrate, to determine the legality of the action. The magistrate should be informed and consulted within 24 hours of the person’s detention.
  • Habeas Corpus allows for the release any person who is arrested without committing crimes or violating any law.
  • If detention occurs under an unconstitutional law (either deemed before or later), the prisoner can be released through a writ of Habeas Corpus.
  • This writ can be filed by the prisoner or any person related to the prisoner.

There are, however, some limitations to the working of Habeas Corpus. The writ will not be applicable when:

  • The detention is made based on crimes committed by the prisoner.
  • A court has already ruled the detention to be legal and lawful.
  • An investigation has already been made and the prisoner was found to violate laws.
  • The prima facie evidence suggests legal grounds for detention.

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What is a writ of Mandamus?

Mandamus translates to ‘we command’. This writ is issued by any court, to command a public authority to perform the legal duties assigned to it. It can be issued against a public official, public corporation, lower court or tribunal, or to the government. If someone files this writ under the court, the government or public authority has to fulfil its duty, in case it has failed to do so, as suggested by petitioner.

The writ of mandamus seeks to keep the government authorities within their jurisdiction while exercising public functions. The writ of mandamus is necessary to control and prevent disorder, resulting from the failure of justice where there is no specific remedy for the problem under the law.

Mandamus also has its own limitations:

  • The court cannot issue this writ against private individuals or enterprises and authorities. Additionally, it cannot be issued against the president or governors of states or against working chief justices.
  • Mandamus cannot be approved when the duty that the authority has failed to fulfil is not mandatory.
  • When the action is of a non-statutory function, it will not be applicable.
  • If the duty or direction causes the violation of any law, Mandamus cannot be enforced.
  • The person filing under the mandamus writ must have a legal right to do so and should have demanded performance of the duty and have been refused by the authority.

 

What is writ of Quo Warranto?

‘Quo Warranto’ means ‘by what warrant’. This particular writ is used by the court, to examine the legality of a person holding a public office. The person holding the office should prove under what authority he does so. If the court proceedings find that the person is not entitled to or does not have legal grounds to hold the office, he/she/they may be dispensed from the job position. This writ helps to prevent the usurpation of any public office, which can be caused by people unlawfully occupying positions of public authority.

The writ can only be issued if the case meets any or all of these conditions are mentioned below:

  • The public office is illegally assumed by a private person.
  • The office was created under the Constitution or law but the person holding the office does not meet the qualifications to occupy the post.
  • The public office in question must be permanent in nature.
  • The duties arising from the office must be public.
  • The office and position are public and not under private authority.

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What is writ of Certiorari?

What happens when the courts themselves conduct unlawful dealings or proceedings? Certiorari is the writ which acts in this case. The term ‘Certiorari’ means to ‘certify’. Certiorari acts as a curative writ. This writ can be issued only by the high court and the Supreme Court on cases where they think that a lower court or a tribunal has passed an order which is beyond its powers. Additionally, this writ may be issued if the verdict meted out by any lower court is not just. The writ allows the legal transfer of the case to the high court or Supreme Court. In other cases, the verdict passed is simply nullified.

Certiorari is issued in the following circumstances:

  • When a lower court acts without jurisdiction or miscalculates the limitations in its jurisdiction.
  • When the lower court crosses the limits of jurisdiction to which it is entitled.
  • When a subordinate court does not hold up the rules of procedure of laws.
  • When a subordinate court violates the principles of natural justice, in cases where there is no procedure specified.

 

What is writ of Prohibition?

The writ of prohibition can be issued by a court, to prohibit the lower courts, tribunals and other quasi-judicial authorities from exercising power beyond their authority. This writ is useful in curbing unlawful jurisdiction of lower courts and tribunals and the violation of rules of natural justice. All courts do not have the same jurisdiction and cannot mete out the same levels of punishment or reward. Therefore, this is one of the writs which regulates the powers and working of lower courts. While the writ of certiorari can be passed after a judgement is made, the writ of Prohibition can be filed while court proceedings are in order.

The Prohibition writ cannot come into effect if any of the following situations occur:

  • The case has been completed under the lower court or tribunal.
  • The body against which the writ was filed no longer exists.

 

Difference between Prohibition and Certiorari

In the writ of Prohibition, a superior court issues the writ prior to the final order being passed by an inferior court. In contrast, the writ of Certiorari is issued after the lower court passes its final order.

The writ of Prohibition is a preventive decision while the writ of Certiorari is a corrective decision.

Source: https://ecis2016.org/.
Copyright belongs to: ecis2016.org

Debora Berti

Università degli Studi di Firenze, IT

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