All about Writs under Indian Constitution

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  This  article is written by Muskan Jain, a first- year law student of Amity University,  Chhattisgarh

Part Ⅲ of the Indian Constitution deals with the Fundamental Rights which includes individual rights such as Right to equality, Freedom of speech and expression, Right to life and personal liberty etc. But merely providing these fundamental rights is not sufficient. It is essential that these fundamental rights are protected and enforced as well.

To protect these fundamental rights, Indian constitution empowers, under article 32 & 226 right to approach the Supreme Court or High Court respectively. To any person whose fundamental rights have been infringed. At the same time, these two articles gives right to approach the highest court of the country to issue writs in order to enforce fundamental rights.

WHAT IS WRIT?

A writ, in general sense means an order. In other word, a writ is a formal written order issued by anybody, executive or judicial, authorized to do so. It can be understood as a formal written order issued by a court having authority to issue such an order. Orders, warrants, directions, summons etc. are all essentially writs. Thus, power to issue writs is principally a provision made, to make the right to constitutional remedies available to every citizen.

WHO CAN FILE A WRIT PETITION?

 A writ petition can be filed by any person whose fundamental rights have been infringed.  Under a Public Interest Litigation, any public-spirited person may file a writ petition in the interest of the general public even if his/her own Fundamental Rights has not been infringed.

WHERE CAN A WRIT PETITION BE FILED?

 Under Article 32, a writ petition can be filed in the Supreme Court. The Supreme Court can issue a writ only if the petitioner can prove that his/her Fundamental Right has been infringed. It is important to note that the right to approach the Supreme Court in case of violation of a Fundamental Right is in itself a right which is Right to Constitutional remedies since it is contained in Part Ⅲ of the constitution.

Under Article 226, a wit petition can be filed in the High Court within whose jurisdiction cause of action arises, either wholly or in part. It is immaterial if the authority against whom the writ petition is filed is within the territory or not.

When a fundamental right has been infringed, either the Supreme Court or the High Court. It is not necessary to go to High Court first and only thereafter approach the Supreme Court. However, if a writ is filed directly in the Supreme Court, then the petitioner has to answer that why he/she approach the High Court first.

POWERS OF BOTH THE COURT

 The power of the High Court to issue a writ is much wider than that of Supreme Court. A writ petition filed before a Supreme Court can be filed against a private person too but the High Court may grant a writ for the enforcement of Fundamental Rights or for any other purpose such as violation of any statutory duties by a statutory authority.

WHAT ARE THE KINDS OF WRITS?

 The Constitution of India identifies the following “five kinds of writs” under Article 32 & 226. These writs are issued in different circumstances and have different implications. They are:

  1. Habeas Corpus

 ‘Habeas Corpus’, in Latin stands for ‘Let us have the body’ or ‘you may have the body’. This writ is used to release a person who has been unlawfully detained or imprisoned. By virtue of the writs, the court directs the person so detained to be bought before the court to examine the legality of his detention. If the court release that the detention was unlawful, then it directs the person to be released immediately.

Who can file the writ of Habeas corpus?

 According to the general rule the writ of Habeas corpus can be filed by the person whose rights have been infringed. But, there is always an exception that the person himself or his friend or relative can file the petition.

To whom it is issued?

 Authorities of state, Government, Organizations or Individuals.

The writ can be issued in the following instances:

  •  The detention was not done in accordance with the procedure laid down. For instances, the person    was not produced before a Magistrate within 24 hours.
  • The person was arrested when he did not violate any law.
  • An arrest was made under a law that is unconstitutional.

2. Mandamus

 ‘Mandamus’ means ‘we command’. This writ is issued by the court to direct a public authority to perform the legal duties which it has not or refused to perform.

Who can file the writ of Mandamus?

 The 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 rights to do so.

It can be issued against:

 A private individual or private body, Against president or governor, Against a working chief justice.

It cannot be issued in the following circumstances:

  • The duty in question is discretionary and not mandatory.
  • For the performance of a non-statutory function
  • Performance of the duty involves rights of purely private nature.
  • Where such direction involves violation of any law.

 3. Certiorari

‘Certiorari’ means to “certify”. It is a curative writ. When the court is of the opinion that a lower court or a tribunal has passed an order which is beyond its powers or committed an error of law then, through the writ Certiorari, it may transfer the case to itself or quash the order passed by the lower or tribunal.

Who can file the writ of Certiorari?

When the court passes an order for which they had no power to do so, the aggrieved can apply for the writ of certiorari.

It can be issued against:

It is issued against the judicial or quasi-judicial authority, acting in a judicial manner.

The writ can be issued in the following instances:

  • The order passed by the court, tribunal or officer must be without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or officer.
  • The court, tribunal or an officer should be having legal authority to determine the question with the duty to act judicially.
  • The order could also be against the principles of natural justice or the order could contain an error of judgment in appreciating the facts of the case.

4. Prohibition

Prohibition means to stop. This writ is popularly known as a “Stay order”. This writ issued by a court to prohibit the lower courts, tribunals and other quasi-judicial authorities from doing something beyond their authority. It is issued to direct inactivity and thus differs from mandamus which directs activity.

Who can file the writ of Prohibition?

 The writ of prohibition can only be filed by the aggrieved individual.

It can be issued against:

 An Inferior court, Tribunal, Quasi-judicial Authority.

The writ can be issued in the following instances:

  • The case must be an on-going in an inferior court, tribunal or quasi-judicial Authority.
  • Writ of prohibition can be issued only when the proceeding are pending in a court.
  • Writ of prohibition can be issued at any stage of the proceeding.

5. Quo Warranto

‘Quo warranto’ means ‘by what warrant’. Though this writ, the court calls upon a person holding a public office to show under what authority he holds that office. If it is found that the person is not entitled to hold that office, he may be ousted from it.

It can be issued against:

The writ of Quo warranto is pertinent only to the public offices only and not to private offices.

The writ can be issued in the following instances:

  • The office must have been constituted by statue, or by the constitution itself;
  • The office must be one of the tenure of which is permanent in the sense of not being terminable at pleasure; and
  • The person proceeded against has been in actual possession and in the user of particular office in question.
  • The duties of the office must be of public nature

REFERENCES

Image: https://xploricabsw.blogspot.com/2017/05/the-five-writs.html

https://cleartax.in/s/writs

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