Writs are extraordinary remedies made available unde for enforcing fundamental rights. Supreme Court and High Courts may issue writs under Articles 32 and 226.
Table of Contents
INTRODUCTION
A writ is an official written order which is issued by the court. This order can be in forms like warrant, direction, command, etc. In ancient times, the writ was used as the written command of the King which everyone had to follow. But now, writs are available to an aggrieved person who is not satisfied with the decision of the courts or any administrative body. Writs are extraordinary remedies as the person aggrieved seeks a remedy against an administrative action. Writs provide directions from an entity that holds jurisdictional or administrative power to another party. The Indian Constitution has adopted this writ concept from the English Common Law. Writs, under Article 226 of the Indian Constitution can be issued by High Courts, and under Article 32, by the Supreme Court.
WRITS UNDER ARTICLES 32 & 226 : DIFFERENCE
- Under Article 226, High Courts have power to issue writs whereas under Article 226, the Supreme Court has power to issue writs.
- Under Article 32 there is an enforcement of Fundamental Rights whereas Article 226 is not only for enforcement of fundamental rights, but also for other purposes. Essentially, the scope of Article 226 is wider than Article 32.
- An order passed under Article 32 (Supreme Court) will prevail an order passed under Article 226 (High Court).
TYPES OF WRITS
HABEAS CORPUS
It is a Latin term, which means “You may have the body “. This writ is issued, to produce the accused person in the court who is detained and not produced before the magistrate within 24 hours . The purpose is to release the accused person who is unlawfully detained. Writ of Habeas Corpus acts as a safeguard of the personal liberty of an individual. This Writ called as a defender of fundamental rights. The Supreme Court can issue this writ against the State and the High Court can issue this writ against the private individuals illegally or arbitrarily detaining any other person. The doctrine of res judicata does not apply in this writ. Writ of Habeas Corpus can be filed by the person who is illegally detained or by any other person on behalf of him. i.e. relatives or friends.
When the Writ of Habeas Corpus is refused -:
- If there is no territorial jurisdiction of the detainer,
- If the detainer is freed from jail,
- If the detention is related to the order of the court,
- At the time of emergency,
- If the competent court dismisses the petition.
The writ of Habeas Corpus will lie when the authority to whom power is given will exercise their powers in mala fide, but if the detention is valid, the Court will not grant the writ of Habeas Corpus. A few landmark cases in this regard:
In Sunil Bhatra v. Delhi Administration[1]: it was held that writ of Habeas Corpus can be issued to release a person from illegal detention and provide protection to accused from inhuman treatment.
Sheela Barse v. State of Maharashtra[2]: In this case Plaintiff who was a human rights activist wrote a letter to the Supreme Court asking about the condition of a woman who was assaulted in the lockup. An officer was sent to check the condition of the woman and found that the allegations made by the plaintiff were true and it was held that the writ of Habeas Corpus can be filed by some other person on behalf of the detained person.
Rudal Shah v. State of Bihar[3]: in this case a person who had already completed his imprisonment but was still in jail for more than 14 years. Here the writ was issued and the person was released from jail and awarded exemplary damages.
MANDAMUS
Mandamus means “we command “. This writ is used to give orders to the officers who have not done their duty or failed to perform their duty. Mandamus can be issued against any public body, a corporation, a tribunal, or government. The function is to see whether the public authorities have done functions within their jurisdiction limits. The object is to prohibit injustice. Application for writ of Mandamus is made by the aggrieved person and also by those who want to enforce writs on behalf of others in the public interest.
The writ of Mandamus cannot be granted -:
- Against the government to do non – statutory functions,
- Where the government has discretionary powers on that matter,
- Where there is a necessity to pass an order, which is against the provisions.
State of M.P v. Mandawara[4]: in this case the Government of M.P made a rule to give a dearness allowance to its employees at a specific rate. The Supreme Court held that mandamus cannot force the Government to exercise its powers.
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Bhopal Sugar Industries Ltd v. Income Tax officer, Bhopal[5]: in the case the Industrial Tribunal had given directions to the Income Tax officer who was respondent by its final order but the respondent refused to do so. It was held that the Income-tax officer has an obligatory duty to carry out directions that were given by the tribunal and if he does not do so, it will lead to injustice. Thus, the writ of Mandamus was issued in this case.
PROHIBITION
The writ of Prohibition is known as a preventive writ. Prohibition is issued before the court’s proceedings are completed. The writ of Prohibition can be issued to prevent from exceeding the jurisdictions. It can lie against a judicial or quasi-judicial body and not to the legislative body.
Grounds for issuing Prohibition -:
- when there is excess and absence of jurisdiction,
- fails to exercise the jurisdiction,
- the findings of the case have no evidence,
- where there is a violation of natural justice.
- Govinda v. Menon Union of India[6]: in this case writ was issued in both the jurisdictions i.e. excess or absence.
Bengal Immunity Co. Ltd v. State of Bihar[7]: the Supreme Court observed that if the inferior tribunal has seized the jurisdiction which does not belong to the tribunal then the consideration is invalid and the writ of Prohibition can be issued as a right.
CERTIORARI
The literal meaning of certiorari is “to be certified”. A Writ of Certiorari is issued by the superior Court to an inferior Court or anybody which exercises the judicial or quasi-judicial functions. This writ is a different type of writ when we compare from all the other four writs. It can be used before the trial is started to prevent excess or abuse of jurisdiction. It can be invoked after the trial to dismiss the order of the Court which was made without jurisdiction or against the principle of natural justice. The writ of Certiorari will not be issued against a private body and is corrective.
Grounds for issuing the writ of Certiorari -:
- Excess of jurisdiction,
- An error of law on the face of the record,
- Against the principal of Natural justice.
Differences between Certiorari & Prohibition
- Writ of Certiorari is a Corrective remedy but Writ of Prohibition is a preventive remedy,
- In Certiorari, the superior court issues the writ when the inferior court has passed the order but in the Writ of Prohibition, the Superior Court issued the writ before the inferior court passed the order.
Quo – Warranto
Quo Warranto means “by what authority”. By this writ the owner of an office is called by the court and asked by what authority is he holding the office. The objective of the writ is to stop a person from holding an office which was not entitled to him. The Court has a discretionary power to issue this writ and no person can demand to issue this writ. The writ can be claimed by the person if the person satisfies the court that -:
- the office in question is a public office ,
- it was held by a person without any lawful authority.
Jamalpur Arya Samaj v. Dr. D. Ram[8]: in this case Patna High Court refused to issue the writ against the members of the Bihar Arya Samaj Sabha which is a private association.
G.D Karkare v. Shevde[9]: in this case, an individual challenged the appointment of Advocate -General of M.P who has no interest in the office. The Court issued the writ of Quo -warranto against the Advocate -General.
REFERENCES
[1] AIR 1980 SC 1579.
[2] AIR 1983 SCR (2) 337.
[3] AIR 1983 SC 1086.
[4] AIR 1954 SC 493.
[5] 1961 AIR 182.
[6] AIR 1967 SC 1274.
[7] AIR 1955 SC 661.
[8] AIR 1954 Pat 297.
[9] AIR 1952 Nag 330.
BY- SHAMBHAVI SINHA | BANASTHALI VIDYAPITH