Writs and its types

Name: Aditi Saboo, University of Petroleum and Energy Studies

INTRODUCTION

When we got independence, our forefathers gave us some rights and provided us with some rules and regulations with common consensus in the name of the constitution. The objective was to create a superstructure that could govern the nation by installing the rights in the hands of people and whenever there is a threat to human rights, the constitution will safeguard the innocent.

In our Constitution, fundamental rights hold extraordinary significance as they guarantee basic civic liberties for the citizens. Notwithstanding, note that these rights will lose all their importance if a wronged individual doesn’t have any component to move toward the court for infringement of his basic rights. Subsequently, keeping in see this need, the forefathers of our Constitution give us the “right to constitutional remedy” under Article 32 and 226 of the constitution. We can move toward the court for the issuance of a specific writ for the insurance of our privileges. In this article, we will investigate the importance of Article 32 and 226. We will likewise dive profound into the significance and sort of writs that can be given by our hon’ble courts.

Presently the inquiry emerges that what is a writ? The significance of the word ‘Writs’ signifies order recorded as a hard copy for the sake of the Court. It is an authoritative record given by the court that arranges an individual or element to play out a particular demonstration or to stop playing out a particular activity or deed. Orders, warrants, bearings, summons and so forth are all writs. A writ appeal is an application recorded under the watchful eye of the skilled Court mentioning it to give a particular writ.

There are five kinds of writ – habeas corpus, mandamus, quo-warranto, prohibition and certiorari.

Who can file a writ petition? A writ request can be documented by any individual whose Fundamental Rights have been encroached by the State. Under a Public Interest Litigation, any open energetic individual may document a writ request in light of a legitimate concern for the overall population regardless of whether his Fundamental Right has not encroached.

Where can a writ petition be filed? Under Article 32, a writ appeal can be documented in the Supreme Court. The Supreme Court can give a writ in particular if the candidate can demonstrate that his Fundamental Right has encroached. Under Article 226, a writ appeal can be documented under the steady gaze of any High Court inside whose purview the reason for activity emerges, either entirely or to some extent.

TYPES OF WRIT:

1. HABEAS CORPUS.

It signifies “to have a body of”. This writ is utilized to deliver an individual who has been unlawfully confined or detained. By ideals of this writ, the Court coordinates the individual so confined to be brought before it to analyze the legitimateness of his detainment. Assuming the Court reasons that the detainment was unlawful, it guides the individual to be delivered right away.

Conditions of unlawful detention are: The confinement was not done as per the method set down. For example, the individual was not created before a Magistrate within 24 hours of his arrest. The individual was captured when he didn’t abuse any law. A capture was made under a law that is illegal.

This writ guarantees a quick legal audit of the supposed unlawful detainment of the detainee and prompt assurance of his entitlement to opportunity. Nonetheless, Habeas corpus can’t be allowed where an individual has been captured under a request from a skilled court and when at first sight the request doesn’t give off an impression of being completely unlawful or without locale. This writ can be recorded by the kept individual himself or his family members or companions for his benefit. It very well may be given against both public specialists and people.

In the case of Sunil Batra v. Delhi Administration[1], an application was made to the Supreme Court through a letter composed by a co-convict on the abuse of the detainees. This letter was taken up by the Supreme Court and it gave the writ of habeas corpus expressing that this writ can not exclusively be utilized against illicit capture of the detainee yet additionally for his insurance against any abuse or cruel conduct by the keeping specialists.

In case of Kanu Sanyal v. Area Magistrate Darjeeling and Ors.[2], the Supreme Court held that as opposed to zeroing in on the characterized importance of Habeas Corpus, for example, produce the body, there ought to be an emphasis on the assessment of the lawfulness of the detainment by taking a gander at current realities and conditions of the case. It expressed that this writ is a procedural writ and not a meaningful writ. This case managed the nature and extent of the writ of habeas corpus.

In the case of Bhim Singh v State of J and K, Bhim Singh[3], an MLA of the  State of J and K was improperly captured and confined in the police headquarters and was kept from going to the State Legislative Assembly. The Court granted an amount of Rs.50,000 to the applicant as pay for the infringement of his Constitutional right of individual freedom under Art. 21.

2. MANDAMUS

A writ of mandamus, which in Latin signifies “we order, or once in a while “we command”, is the name of this right writ in the common law. It is given by a better court than force a lower court or an administration official to perform obligatory or ecclesiastical obligations accurately.

Mandamus is an order by the Supreme Court or High Courts to any open power to do or not to accomplish something in the idea of public obligation. It is given against the people or specialists who neglect to play out their compulsory obligations. For the motivation behind giving writ of mandamus, the official should have a pubic obligation and should neglect to perform such obligation. The applicant of this writ should likewise have an option to constrain the presence of some obligation cast upon the power.

In the case of Barada Kanta Adhikary v. The State of West Bengal[4], it was held that writ of mandamus doesn’t lie against a private individual or private association since they are not dependent on a public obligation.

In the case of Manjula Manjari Devi v. M.C. Pradhan, Director of Public Instructions[5], the distributor of an Oriya book applied for a writ of mandamus to urge the Director of Public Instructions to remember her book for the rundown of books supported for school. The court denied since the selection of books was altogether a matter inside the watchfulness of the Director of Public Instructions. There was no legitimate obligation to propel the Director of Public Instructions to remember the Petitioner’s book for the rundown.

3. QUO-WARRANTO

It signifies ‘what is your authority?’ It is an Order scrutinizing the authority of an individual holding a public office. It is given against the holder of a public office calling upon him to show with what authority he holds such office. The object of this writ is to control the leader activity in making arrangements to the public workplaces furthermore to shield general society from usurpers of public workplaces.

The Writ of Quo Warranto isn’t given when the workplace is a private office. At the point when the holder of the workplace is able to hold that office. At the point when the holder accordingly gets equipped for the workplace. At the point when the issue of writ gets useless. It implies if the writ doesn’t fill any need.

In the case of Jamalpur Arya Samaj Sabha v Dr D. Smash,[6] the individual from the Working Committee of the Bihar Arya Samaj Sabha held the workplace for more than the recommended residency. The High Court would not issue the writ of Quo Warranto on the ground that it was a private affiliation.

In the case of K.Bhima Raju v State of Andhra Pradesh[7], the Government pleader was named contrary to the principles. The solicitor documented a writ of Quo Warranto. The High Court suppressed the arrangement of Government Pleader on the ground that the arrangement was not made as per rules.

4. PROHIBITION

It signifies ‘to prevent’. Each Court is relied upon to act inside the restrictions of their purview. A writ of preclusion is given to keep a substandard Court or Tribunal from surpassing its locale, which isn’t legitimately vested, or acting without a ward or acting contrary to the standards of common equity. The writ of Prohibition can be given against the Courts as well as against the specialists practising legal or semi-legal capacities.

When can a Writ of Prohibition be granted? When the inferior Court or quasi-judicial authority exceeds its jurisdiction. When the inferior Court acts without lawful jurisdiction.  When the inferior Court or quasi-judicial authority acts against the rule of natural justice. When there is an apparent error on the face of the judicial record.

When the Writ of Prohibition not issued? At the point when the Court acts inside its legitimate ward. At the point when the Court notices standards of normal equity.

In the case of Madan Gopal v. UOI[8], the SC held that where the deformity in the ward isn’t obvious, additionally, where the appealing party is blameworthy of oversight of material actuality, the court can decline to allow the writ. Notwithstanding, it very well may be allowed where it is shown that the second rate council is acting more than its purview.

5. CERTIORARI

It intends ‘to certify’. Certiorari is a curative writ. It is an Order by the Supreme Court or the High Courts to a substandard Court to eliminate a suit from such second rate Court and mediate upon the legitimacy of the procedures or to suppress the Orders of the sub-par Court. Writ of Certiorari can be given against any second rate Courts as well as against a body practising legal or semi-legal capacities. This writ is given under the administrative or unique ward and not under the redrafting purview. Any individual whose central right is abused can apply for the writ of Certiorari.

When a writ of Certiorari can’t be allowed? To eliminate pastoral demonstrations. To eliminate or drop leader acts. To pronounce an Act as unlawful or void.

In the case of Rafiq Khan v State of UP[9], the Magistrate kept up the conviction of the charge as passed by a Panchayat Adalat which is no1 approved under Section 85 of the U. P. Panchayat Raj Act, 1947. Henceforth, the High Court subdued the conviction by a writ of certiorari.

In the case of G Nageshwara Rao vA., the Secretary, APSRTC[10] welcomed protests for the nationalization of engine transport in the State. The solicitor who was running the vehicle business recorded his complaints, yet the Secretary didn’t focus on them. Additionally, the secretary himself was the arbitrating authority and along these lines disregarded the standards of regular equity. Consequently, the Supreme Court gave a writ of Certiorari against the Secretary.

CONCLUSION

The privilege to protected cure is a piece of our fundamental construction and it can never be repealed. Our Constitution has conceded the preeminent ability to give the writ to the Supreme Court and the High court according to Article 32 and 226 individually.

There are predominantly 5 kinds of writs in which the extent of mandamus is the greatest one while other writs are issued in specific conditions only. These writs play an important role in the enforcement of justice.

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[1] (1978) 4 SCC 409

[2] 1974 AIR 510

[3] AIR 1986 SC 494

[4] AIR 1963 Cal 161

[5] AIR 1952 Ori 344

[6] AIR 1954 Pat. 297

[7] AIR 1981 AP 24

[8] 1954 AIR 158

[9] AIR 1954 All 3

[10] 1959 AIR 308