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.
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