Writs in Indian Constitution

As everybody proudly knows that the Constitution of India is the longest constitution in the world and to spice it up, it is also the longest handwritten constitution including various articles, schedules and amendments. Given the length of the document, there is no doubt there would have been a lot of deliberations on each and every aspect of it. One of the importantly deliberated subjects being The Writs, or as a layman understands, Writ Petitions.

The Constitution grants the right to issue writs to Supreme Court under Article 32 and to the High Court under Article 226. Interestingly, in a continued habit of adopting provisions from the West, the writs as mentioned in the Constitution have also been borrowed from England’s Constitution.

The primary reason to provide a power to issue writs is to ensure every citizen of India the Right to Constitutional Remedies. The right to constitutional remedies is categorically a guarantor of all other fundamental rights available to the people of India. Now without further adieu, following are the types of Writs in the Indian Constitution.

1. Habeas Corpus:

It is a Latin term which literally means “you must have the body”. By this writ the Court directs the person or authority who has detained another person to bring the body of the prisoner before the court so as to enable the court to decide the validity, jurisdiction or justification for such detention. The principal aim of the writ is to ensure swift judicial review of alleged unlawful detention on liberty or freedom of the prisoner or detention. The great value of the writ is that it enables immediate determination of the right of a person as to his freedom. Under Article 22 as well as the Customs Law, a person arrested is required to be produced before a magistrate within 24 hours of his arrest, and failure to do so would entitle the arrested person to be released. Habeas corpus cannot be granted where a person has been committed to custody under an order from a competent court when prima facie the order does not appear to be without jurisdiction or wholly illegal. Writ of habeas corpus can be invoked not only against the state but also against any individual who is holding any person in unlawful custody or detention.

2. Quo Warranto:

The term means “what is your authority”. The writ of quo warranto is used to protect a citizen from the holder of a public office to which he has no right. The writ calls upon the holder of a public office to show to the court under what authority he is holding the office in question. If he is not entitled to the office, the court may restrain him from acting in the office and may also declare the office to be vacant. Quo warranto prevents illegal usurpation of public office by an individual. The necessary ingredients to be satisfied by the court before issuing a writ are:

1. The office must be public and it must be created by a statue or by the constitution itself.

2. The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.

3. There must have been a contravention of the constitution or a statute or statutory instrument, in appointing such person to that office.

3. Mandamus:

Mandamus is a command issued by a court to an authority directing it to perform a public duty imposed upon it by law. For example, when a body omits to decide a matter which it is bound to decide, it can be commanded to decide the same.

Mandamus can be issued when the Government denies to itself a jurisdiction which it undoubtedly has under the law, or where an authority vested with a power improperly refuses to exercise it. Mandamus can be issued to any kind of authority in respect of any type of function – administrative, legislative, quasi-judicial, and judicial.

Mandamus is used to enforce the performance of public duties by public authorities. Mandamus is not issued when Government is under no duty according to the law. When an authority fails in its legal duty to implement an order of a tribunal, mandamus can be issued directing the authority to do so.

4. Certiorari:

‘Certiorari’ is a Latin word being passive form of word “certiorari” meaning inform. A writ of certiorari or a writ in the nature of certiorari can only be issued by the Supreme Court under Article 32 and a High court under Article 226 to direct, inferior courts, tribunals or authorities to transmit to the court the record of proceedings disposed of or pending therein for scrutiny, and, if necessary, for quashing the same.

Certiorari under Article 226 is issued for correcting gross error of jurisdiction i.e. when a subordinate court is found to have acted

(1) Without jurisdiction or by assuming jurisdiction where there exists none, or

(2) In excess of its jurisdiction by overstepping or crossing the limits of jurisdiction or

(3) Acting in flagrant disregard of law or rules of procedure or acting in violation of principles of natural justice where there is no procedure specified and thereby occasioning the failure of justice.

5. Prohibition:

A writ of prohibition is normally issued when inferior court or tribunal

(a) Proceeds to act without jurisdiction or in excess of jurisdiction;
(b) Proceeds to act in violation of rules of natural justice;
(c) Proceeds to act under a law which is itself ultra wires or unconstitutional;
(d) Proceeds to act in contravention of fundamental rights.

When an inferior court takes up a hearing for a matter over which it has no jurisdiction, the person against whom hearing is taken can move to superior court for writ of prohibition on which order would be issued forbidding the inferior court from continuing the proceedings.

On the other hand if the court hears the matter and gives the decision, the party would need to move to the superior court to quash the decision/order on the ground of want of jurisdiction.

Conclusion:

Habeas corpus and Quo warranto are mostly confined to specific situations; Certiorari and Mandamus are the two most commonly sought writs to control the actions of administrative bodies.

 

Vanshika Kapoor 
on 06 August 2018
Published in Constitutional Law
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