Types of Writs

TYPES OF WRITS

Author: Kriti Goyal,

*This article has been written by the author while pursuing a Certificate Course on Research Methodology with us.

INTRODUCTION

To provide Economic and Social justice is the main motive behind the Indian Constitution. The Constitution of India, provides Fundamental Rights and ordinarily cannot be taken away and to ensure the safeguard of these rights it also provides some writs which were enforced by the Supreme Court and High Court. The evolution of these writs is from England and it also has a long rich history of its evolution. The Supreme Court and High Court can take suo moto action and issue the writ and the citizens can also file a writ petition for the protection of their rights.

WHAT IS WRIT AND WHO CAN ISSUE IT?

A writ can be interpreted as an order or action taken by the superior authority, who is authorized by the Constitution to do so. A writ can also be known as an order, warrant, action, direction, etc. the writ can be issued suo moto by the Supreme Court or High Court and the general principle of “Locus Standi” (the right or capacity to bring an action or to appear in a court) given right to all the citizens to approach to the court for the protection of their rights. Under Article 32[1] a person approaches the Supreme Court and under Article 226[2] a person can approach the High Court for the protection of their Fundamental Rights and Constitutional Rights.

WHAT ARE THE DIFFERENT WRITS ENSHRINED IN THE CONSTITUTION?

There are five types of writs, namely:

• Habeas corpus
• Quo warraranto
• Mandamus
• Certiorari
• Prohibition

HABEAS CORPAS:

The term Habeas Corpas was derived from the Latin term which means “to have the body of”. By this writ, the court decides the soundness, justification, and jurisdiction of a person who confined another person and also does not have the authority to do so or does not produce that person before the court within a reasonable time.

A person’s right to life and personal liberty cannot be taken away except according to the procedure established by law[3]. And an arrested person is required to produce before the magistrate within 24 hours and if the confiner in failed to so, without the reasonable justification, then the arrested person is entitled to be released[4].

In A.D.M. Jabalpur v. Shivakant Shukla[5], in this case, it was observed that the “writ of habeas corpus is a mechanism to provide relief to the person who was unlawfully and unjustifiably confined, then the person is said to be released”.

Who can file a writ of Habeas Corpas?

A writ of Habeas Corpus can be filled by:

• The person himself,
• Family,
• Friends,
• His legal representative.

MANDAMUS:

The term mandamus means “we command”. In this writ the superior authority i.e., (Supreme Court or High court) gives an order or command to an inferior court, public authority or government to perform certain “public duty” which was not performed or denied by them.

Any individual, private body or a legal representative of a person can file a writ petition of mandamus, in the matter in which, that public authority is bound to perform his duty according to law. And this writ can be issued against the following person:

1. Governor,
2. President’
3. Government entity;
4. Private person,
5. Chief justice, or
6. Any other person or body who was bound by law to perform certain duties.

In Bombay municipality v. Advance Builders[6], in this case, in this case, the court directs the municipality authority to implement a planning scheme in a specified time period approved or prepared by the government and respective authorities under the relevant statute.

In Bhopal Sugar Industries Ltd. v. Income Tax Officer[7], in this case, the Income Tax Appellate Tribunal had given direct directions to the Income Tax Officers (respondent), but the Income Tax Officer still refused to fulfill his duty and the directions of the Tribunal. So, it was held by the Supreme Court that it is the mandatory duty of the Income Tax Officer to fulfill his obligations and directions.

QUO WARRANTO:

The term quo warranto means “by what warrant”? The writ of quo warranto was issued against the person or public authority, who has wrongfully and unlawfully taken the possession of an office, which he is not entitled to hold. The person is asked to show by what authority or order he occupies the position or office.

In the case of Jamalpur Arya Samaj v. Dr. D. Ram[8], in this case, the writ of quo warranto was dismissed on a ground that this writ does not exist in the case of private authority/office. The basic ingredient for validation of this writ is that the office hold by the person must be of government office or comes under the government sector.

CERTIORARI:

The term certiorari means to “to certify or to be reviewed”. The main purpose of this writ is to correct the error which was evident on record. This writ has a corrective nature, that’s why it is also known as curative writ. The writ of certiorari was issued by the Supreme Court or High court to any inferior court or any other authority that exercise judicial, quasi-judicial or any administrative functions.

This writ can be issued in certain condition, which are:

• When a superior authority wants to take a suo moto action in a certain matter,
• Or there is an error in the judgement,
• Or the inferior court or any other authority does not have a jurisdiction to decide the matter (excess of jurisdiction),
• Violation of Fundamental Rights or Principle of Natural Justice.

A.K. Kripak V. Union of India[9], in this case the writ of certiorari was issued to disallow the selection list of the Indian Forest Service on the ground that one of the nominated candidates was the ex-officio member of the selection committee.

PROHIBITION:

The writ of prohibition means “to forbid or to stop”. This writ was issued to prohibit the lower courts, tribunals, and other quasi-judicial authorities from doing something beyond their authority by the Supreme Court or High Court. It is a way to protect the rights of the citizens.

• The writ of certiorari will be furnished when a case has been already adjudicated upon, i.e. when the decision has been announced. (Res Sub Judicata).
• Prohibition is furnished during the pendency of the proceedings. (Res sub judice).

WHAT IS WRIT-PETITION?

A petition is a form of writ raised by the people in the form of a plea to a legal authority i.e. Supreme Court or High Court, requesting an action to be taken about a certain cause.

When a person’s Fundamental Right is violated, he can file a writ petition. He may move to the Supreme Court under Article 32 or an appropriate High Court under Article 226 for legal relief.

HOW WRIT CAN BE PLEADED UNDER PIL (PUBLIC INTEREST LITIGATION)?

PIL (Public Interest Litigation) is a form of writ where an action or law is framed for public convenience. It directly joins the public with the judiciary. In PIL, the court has given the public the right to file a suit (public at large).

NOTE: a writ petition filed by the aggrieved person, whether on behalf of a group or together with a group can be treated as a PUBLIC INTEREST LITIGATION, however,

• The writ petition should entail a question, which determines the public at large or group of people, and not a single individual.
• Only the affected / aggrieved persons can file a writ petition.
• There should be a specific prayer, asking the court to direct the state authorities to take note of the complaint /allegation.

WHAT ARE THE CRITERIA OF CONNECTING IT TO THE FUNDAMENTAL RIGHTS?

Fundamental Rights are contained in Part III of the Indian Constitution including the right to equality, right to life and liberty, etc. Merely providing for Fundamental Rights is not ample. It is essential that these Fundamental Rights are protected and effectuate as well. The right given under Article 32 & 226 is for the enforcement and protection of Fundamental Rights.

The writs, which may be issued by the Supreme Court or High Court is for the enforcement of Fundamental Rights and the right to approach the Supreme Court under Article – 32 and High Court under Article – 226 is for the indemnity of Fundamental Rights of people, who’s Fundamental Right has been violated.

CONCLUSION:

The Fundamental Rights guarantee by the Constitution is known as the heart of the Constitution, but for the protection and enforceability of these rights, judicial authority plays a crucial role. The Constitution allocates this power to the higher judicial authorities i.e. Supreme Court and High Court[10]. Article 32 & 226 was also known as the protector of the Fundamental Rights guarantee by the Indian Constitution. The Fundamental Rights are the golden words of the Constitution. So the protection of these rights was essential and for that protection, the power to issue writ was given to the higher authorities or to plea for the protection of these rights by the citizens was given under Article 32 and 226. As we know that the Fundamental principle of law provided under the Constitution is that, ubi jus ibi remedium- “where there is a right there is a remedy” because a right without a remedy is of no use. A provision for the protection and enforcement of Fundamental Rights is one of the novel features in the Indian Constitution. All these writs have played an important role in the implementation of the rights of the people and it also widens the scope of the power judicial review of courts.

---

[1] The Constitution of India

[2] The Constitution of India

[3] Article 21 of The Constitution of India

[4] Article 22 of The Constitution of India

[5] (1976) 2 SCC 521

[6](1971) 73 BOMLR 657

[7]1961 AIR 182, 1961 SCR (1) 474

[8]21 January, 1954

[9] AIR 1970 SC 150

[10] Article 32 and 226 of the Constitution of India