Brief Analysis of Writs

Introduction

Article 32 (Part -III) deals with the protection of fundamental rights are itself a fundamental right. It clearly states that if someone’s right is being violated, he can directly use Article 32 and approach the Supreme Court. Secondly, Article 32 gives the supreme court the power to issue 5 types of writs to protect fundamental rights. Supreme Court is also called the ‘protector and guarantor of fundamental rights’. Dr.BR Ambedkar even called this article “heart and soul of the Constitution”.

Article 226 also holds the same powers as Article 32 to issue the writs. It empowers the high court to issue, to any person or authority, including the government (in appropriate cases), directions, orders or writs, including writs like habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any of them. It is a constitutional provision but not a fundamental right. Article 226 is provision limited to the violation of the fundamental right only, like Article 32. It can be used for any other purpose. Thus, it can be safely said that Article 226 has a wider scope than Article 32.

The high court has a wide range of power as a matter of discretion. It not only has the power to protect the fundamental rights of the people but also can operate on any other issue. The basic motto is to eliminate injustice and ensure justice and peace. The high court must reach the origins and remove injustice since it enjoys wider and open powers as a matter of volition.

Types of writs:

  • Writ of Habeas Corpus:

It is one of the most important and powerful writs used for personal liberty. It means “To have a body” or “to produce a body.” If a person is imprisoned or detained illegally by the state or even none state can move to the court for the issue of Habeas Corpus. Now on your behalf, your family, relatives, friends, NGO, or even the court which is called suo moto will issue a writ which is called Writ of Habeas Corpus. Which will act as an order to “have the body” or “Produce the body” of the person illegally detained by a state or even none state? Article 21 states that no person shall be deprived of his life and personal liberty, except by Procedure Established by Law. So, we can safely say that this writ is issued by the courts to examine whether the person has been detained lawfully or otherwise. The motto is to release a person from any illegal detention because it is a clear violation of Article 21. The court has to be convinced that the detention is illegal. If the state is lacking evidence and causes the person must be released.

Writ of Habeas Corpus is one of the most powerful writs as it with the force of the order of a court, demands the prisoner be taken before the court, the custodian has to provide the proof of legal detention, in case of lack of proofs and causes, the prisoner must be released immediately with due compensation.  It is a guarantee that there should be no illegal detention as it results in the infringement of Article 21.

When it can’t be issued.

  • Detention is Lawful.
  • Contempt of court.
  • Detention is outside the jurisdiction of the court.
  • Detention is by a competent court.

When it can be issued

The writ of Habeas corpus can only be issued when a person is illegally detained by state and even non-state forces the authority to present the body before the court and also provide sufficient evidence to support the custody of the prisoner, but if the detention is justified the high court will not grant the writ. In the Veena Sethi v. State of Bihar, it was held that the court was informed through a letter that some prisoners, who were insane at the time of trial but subsequently declared sane, were not released due to inaction of state authorities, and had to remain in jail from 20 to 30 years. The court directed them to be released forthwith.

  • Writ of Mandamus:

Mandamus is a Latin word that stands for “We Command”. Mandamus is a writ that is effective only against the Executive of the state and not against any non-state party. This writ is issued to an executive to do the constitutionally mandated duty that he has failed to do so. It’s ordered that the court can command on any constitutional, statutory, non- statutory authority, Universities, tribunals to perform their public duty so that the government machinery works properly. There is one condition tied up to this writ of Mandamus that it can only be issued by the court when there is a public duty. The basic objective is to maintain Law and Order.

When it can’t be issued

  • When the duty us merely discretionary.
  • Against any non-state organization.
  • To enforce an obligation arising out of the contract.

When it can be issued.

Whenever there is an infringement of the public duty by an executive the Writ of Mandamus can be issued. When there is any illegal detention, the custodian should release the prisoner immediately. It’s the duty of the state to complete it’s “Constitutional Mandated duty”. So that justice reaches to society and law and order are maintained.

  • Writ of Certiorari:

It literally means “to be certified” or “We Certify”. Through this Writ, the Supreme Court and the high court can command the lower judiciary that is the subordinated courts to transfer or submit their documents of a particular matter to superior authority for a proper review of the judgment. If an order is passed by any subordinate court as

  • Excess of jurisdictions
  • Lack of jurisdiction
  • Unconstitutional jurisdiction
  • Violation of the principle of Natural Justice.

If after reviewing the jurisdiction of the subordinate courts are found illegal then the judgment of the court will be quashed. The order will be held null and void. Quash is nothing but a writ of certiorari against the lower jurisdiction. Also, the writ of Certiorari is used on a later stage of jurisdiction bit the writ of prohibition is available during the proceeding before a subordinate court, Certiorari can be restored only after the order.

  • Writ of Prohibition:  

It means “we stop” or “to forbid”. There is not much difference between the writ of Certiorari and Writ of Prohibition. The Writ of Certiorari is used by the Supreme Court and high court to order the lower courts to forbid it from performing any action which is resulting in:

  • Excess of jurisdictions
  • Lack of jurisdictions
  • Unconstitutional jurisdictions.
  • Violation of the principle of natural justice.

After the writ is issued by the high court or supreme court the judgment is quashed and becomes null and void.

But the writ of prohibition is used during the proceeding by the High court or the supreme court ordering the lower or subordinate courts to stop the proceedings or prohibits to continue the proceedings of a particular case when It has no legal jurisdiction of trial. This writ can only be issued in the case of the infringement of the fundamental rights. This writ basically results in total inactivity of the lower subordinate courts in the matter of a particular case. This writ can only be issued against any judicial or legislative body. This writ can be issued in any stage of the proceeding of a particular matter but not after the judgment is made. After the judgment, the writ will not lie. The wit of Prohibition is used before the judgment made by any tribunal and the Writ of Certiorari is used after the judgment is matured.

  • The Writ of Quo-Warranto:

It means “by what authority”. This writ is issued against an officer which is not entitled to the position that he is holding. Through this writ, the courts can ask any executive public officer that by what authority he has assumed his position. This writ can be moved in the court to test the legality of the authority of the officer. If in the review, the title of the official is found defective then they have to leave the public office. The writ of Quo-warranto is used to prevent any illegal assumption of the public office. The eligibility criteria have to be completed to assume any public office or authority. After the writ of quo-warranto is moved the public officer has to satisfy the court that the office in question is a public office and his title is not defective. The writ makes the particular person to satisfy the court and explain that by what authority he assumed the office. This writ ensures that there is no illegal assuming of a public authority. Also, the writ of Mandamus can also, be issued on the ground of arbitrariness.

References:

Questions:

  1.  Which writs is said to be a guarantor of personal freedom?
  2. Which writs can be used against a person believed to be holding a public office to which he is not entitled to?
  3. The power to issue writs by the Supreme Court has been envisaged under which of the following articles?
  4. Which writs can be issued to force a public authority to perform a public or statutory duty?
  5. Who can remove the services of a member of the Union Public Service Commission?

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