WRITS

The Supreme Court and the High Courts have been provided with many powers which they exercise to provide justice to the people. One of the most important tools or power which the courts have been provided with by the constitution is the power to issue writs.

A Writ means a command of the Court to another person or authority by which such person/authority has to act or abstain from acting in a certain way. Thus, writs are a very essential part of the judicial power of the Courts.

In India, the constitution has provided the Supreme Court with the power to issue the Writ under Article 32 of the Constitution. Under Article 32, when any Fundamental Right of a citizen is violated, that person has the right to directly approach the Supreme Court for the enforcement of his rights and the Court can issue the appropriate Writ for enforcing such right.

The power to issue Writs are also provided to the High Courts of India under Article 226. While citizens can approach the Supreme Court only when his Fundamental Right is infringed, the citizens also have the right to approach the High Court for the issue of Writs in other matters in which the fundamental rights are not violated. For e.g. in the case of Smt. Imtiaz Bano vs Masood Ahmad Jafri And Ors., a mother had filed a writ petition for habeas corpus under Article 226 to get custody of her 2 children. The High Court allowed the petition and the writ was issued in her favour. Thus, the scope of the power to issue Writs is wider in the case of High Courts as compared to the Supreme Court.

There are five major types of writs viz. HABEAS-CORPUS, MANDAMUS, PROHIBITION, QUO-WARRANTO & CERTIORARI.

 

(1) Habeas Corpus

 

Habeas Corpus literally means “to have the body of”. Via this writ, the court can cause any person who has been detained or imprisoned to be physically brought before the court. The court then examines the reason of his detention and if there is no legal justification of his detention, he can be set free.

         Such a writ can be issued in following example cases:

a) When the person is detained and not produced before the      magistrate within 24 hours

b)   When the person is arrested without any violation of a law.

c)     When a person is arrested under a law which is unconstitutional

d)   When detention is done to harm the person or is malafide.

 

Thus, Habeas corpus writ is called bulwark of individual liberty against arbitrary detention. A general rule of filing the petition is that a person whose right has been infringed must file a petition. But Habeas corpus is an exception and anybody on behalf of the detainee can file a petition. Habeas corpus writ is applicable to preventive detention also. This writ can be issued against both public authorities as well as individuals.

 

 

(2) Mandamus

 

Mandamus means “we command”. This writ is a command issued by court to a public official, public body, corporation, inferior court, tribunal or government asking them to perform their duties which they have refused to perform. Due to this, Mandamus is called a “wakening call” and it awakes the sleeping authorities to perform their duty. Mandamus thus demands an activity and sets the authority in action.

          Mandamus cannot be issued against the following:

A)    a private individual or private body.

B)    if the duty in question is discretionary and not mandatory.

C)    against president or governors of state.

D)    against a working chief justice.

E)    to enforce some kind of private contract.

A petition for writ of mandamus can be filed by any person who seeks a legal duty to be performed by a person or a body. Such a filing person must have real or special interest in the subject matter and must have legal right to do so.

 

 

(3) Prohibition

 

The writ of prohibition means that the Supreme Court and High Courts may prohibit the lower courts such as special tribunals, magistrates, commissions, and other judiciary officers who are doing something which exceeds to their jurisdiction or acting contrary to the rule of natural justice.

For example, if a judicial officer has personal interest in a case, it may hamper the decision and the course of natural justice.

Difference between Mandamus and Prohibition

a) While Mandamus directs activity, Prohibition directs inactivity.

b) While Mandamus can be issued against any public official, public body, corporation, inferior court, tribunal or government; prohibition can be issued only against judicial and quasi-judicial authorities and NOT against administrative authorities, legislative bodies.

 

 

(4) Certiorari

 

Certiorari means to “certify”. It’s a writ that orders to move a suit from an inferior court to superior court. It is issued by a higher court to a lower court or tribunal either to transfer a case pending with that to itself or squash its order. This is generally done because superior court believes that either the inferior court had no jurisdiction or committed an error of law. Thus, certiorari is a kind of curative writ.

In the Supreme Court, if four Justices agree to review the case, then the Court will hear the case. This is referred to as "granting certiorari," often abbreviated as "cert." If four Justices do not agree to review the case, the Court will not hear the case.

 

(5) Quo warranto

 

Quo warranto means “by what warrant ?”. This writ is issued to enquire into legality of the claim of a person or public office. It restrains the person or authority to act in an office which he / she is not entitled to; and thus stops usurpation of public office by anyone. This writ is applicable to the public offices only and not to private offices. it is an effective measure to prevent people (private persons) from taking over public offices.