Analysis of Types of Writs under Constitution of India: Landmark Cases By: Tanu Kapoor

The Author, Tanu Kapoor is a 1st year student of Rajiv Gandhi National Law University. She is currently interning with LatestLaws.com.

Introduction

Article 32 and Article 226 of the Constitution provide two separate but parallel provisions of writ jurisdiction with the Supreme Court and High Courts respectively. Article 32 has been incorporated as a fundamental right and it provides for the constitutional remedy against the violation of fundamental rights. This remedy is limited to the violation of fundamental rights only under Article 32.

However, it is guaranteed under Article 32(2) and as per specific provision of Article 32(4) it cannot be suspended otherwise, except, as provided under the Constitution. Therefore, the right to move the Supreme is almost an absolute right and guaranteed under the Constitution itself except in case of suspension of this right as' provided under the Constitution (emergency provisions). Though to grant relief or not to grant is absolutely the discretion of the Supreme Court but the apex court can be moved for violation of fundamental right as a matter of right. But to this limited extent, it is a different matter with the High Court.

The provision of Article 226 is a constitutional provision, but it is not a fundamental right. There is no guarantee attached to it unlike Article 32. The scope of Article 226 is wider than that of Article 32 because the operation of Article 226 is not limited to violation of fundamental rights only, but it can be operated for other purposes also. However, in entertaining the writs, the High Court enjoys wide and open powers as a matter of discretion. It is a plenary power of the High Court without any fatter from any provision of the Constitution. Since it is an extraordinary jurisdiction with the High Court, it has no! to be resorted to in routine. The basic objective of this power is to ensure justice wherever the miscarriage of justice is manifest.

The High Court has to reach the remotest comer of justice to eliminate injustice. The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the Constitution for the violation of fundamental rights guaranteed under Part – III of the Constitution. Any provision in any Constitution for Fundamental Rights is meaningless unless there are adequate safeguards to ensure enforcement of such provisions. Since the reality of such rights is tested only through the judiciary, the safeguards assume even more importance.

TYPES OF WRITS (i) Writ of Habeas Corpus, (ii) Writ of Mandamus, (iii) Writ of Certiorari, (iv) Writ of Prohibition, (v) Writ of Quo-Warranto,

1. Writ of Habeas Corpus: It is the most valuable writ for personal liberty. Habeas Corpus means, "Let us have the body." A person, when arrested, can move the Court for the issue of Habeas Corpus. It is an order by a Court to the detaining authority to produce the arrested person before it so that it may examine whether the person has been detained lawfully or otherwise. If the Court is convinced that the person is illegally detained, it can issue orders for his release. A writ of habeas corpus derived from Latin word means "you may have the body" is a writ (court order) that requires a person under arrest to be brought before a judge or into court. The principle of habeas corpus ensures that a prisoner can be released from unlawful detention—that is, detention lacking sufficient cause or evidence. The remedy can be sought by the prisoner or by another person coming to the prisoner's aid. This right originated in the English legal system, and is now available in many nations. It has historically been an important legal instrument safeguarding individual freedom against arbitrary state action. It has been extended to non-police authorities, as in the 1898 Queen's Bench case of Ex Parte Dorothy Hopkins, which has successfully been utilized more recently in India to liberate a woman from a madrasa.

Who can apply for the Writ

The general rule is that an application can be made by a person who is illegally detained. but in certain cases an application of habeas corpus can be made by any person on behalf of the prisoner, ie, a Friend or a Relatives. A writ of habeas corpus, also known as the "great writ", is a summons with the force of a court order; it is addressed to the custodian (a prison official for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond his authority, then the prisoner must be released. Any prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus. One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held incommunicado. Habeas corpus has certain limitations. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial.

When it will lie

The writ of habeas corpus will lie if the power of detention vested in an authority was exercised mala fide and is made in collateral or ulterior purposes. but if the detention is justified the high court will not grant the writ of habeas corpus. In Sunil Bhatra V/S Delhi Administration[1] it has been held that the writ of habeas corpus can be issued not only for releasing a person from illegal detention but also for protecting prisoners from the inhuman and barbarous treatment. the dynamic role of judicial remedies imports to the habeas corpus writ a versatile vitality and operational utility as bastion of liberty even within jails. In Veena Sethi V/S State Of Bihar[2] In this case 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 jails from 20 to 30 years. the court directed they be released forthwith. In D.S Nakara v/s Union of India[3] in this case it was held that a registered societies, non-political, non-profit making and voluntary organizations are entitled to file a writ petition ie, habeas corpus under article 32 of the constitution for espousing the cause for the large number of old infirm pensioners who are unable to approach the court individually. We command you, that the body of A.B. in Our prison under your custody detained, as it is said, together with the day and cause of his taking and detention, by whatever name the said A.B. may be known therein, you have at our Court ... to undergo and to receive that which our Court shall then and there consider and order in that behalf. Hereof in no way fail, at your peril. And have you then there this writ. The habeas writ was used in the Rajan case, a student victim of torture in local police custody during the nationwide Emergency in India in 1976.On 12th March 2014, Subrata Roy's counsel approached the Chief Justice moving a habeas corpus petition. It was also filed by Panthers Party to protest the imprisonment of Anna Hazare, a social activist.

(II) The Writ of Mandamus: Mandamus is a Latin word, which means "We Command". Mandamus is an order from a superior court to a lower court or tribunal or public authority to perform an act, which falls within its duty. It is issued to secure the performance of public duties and to enforce private rights withheld by the public authorities. Simply, it is a writ issued to a public official to do a thing which is a part of his official duty, but, which, he has failed to do, so far. This writ cannot be claimed as a matter of right. It is the discretionary power of a court to issue such writs. The primary purpose of this writ is to make the Government machinery work properly. An order of mandamus is a command directed to any person, corporation or an inferior tribunal, requiring them to do some particular thing which pertains to their/his office and which is in the nature of a public duty. The public servants are responsible to the public for the lawfulness of their public duties and their actions under it. If a public authority fails to do what is required under law or does beyond what was to be done, a writ of mandamus may be issued to make him do what was required under law. Mandamus may also be issued to a tribunal to compel it to exercise the jurisdiction vested in it, which it has refused to exercise. Mandamus may also be issued where there is a specific legal right, without specific remedy for enforcement of such right and unreasonableness has no place. The Supreme Court in various decisions has held that the doctrine of legitimate expectation is akin to natural justice, reasonableness and promissory estoppel.

When it will lie

Thus the writ or order in the nature of mandamus would be issued when there is a failure to perform a mandatory duty. but even in the cases of alleged breaches of mandatory duty the party must show that he has made a distinct demand to enforce that duty and demand was met with refusal.

1. the writ of mandamus can only be granted when there is in the applicant a right to compel the performance of some duty cast upon the authority. the duty sought to be enforced must be a public duty and not a private duty.
2. Thus writ of mandamus can be issued to public authority to restrain it from acting under a law which has been declared unconstitutional.
3. the writ of mandamus can be granted only in cases where there is a statutory duty imposed upon the officer concerned, and there is a failure on the part of that officer to discharge the statutory obligation.

When it will not lie

The writ of mandamus cannot be granted in case of following circumstances 1. when the duty is merely discretionary 2. against a private individual or any private organization because they are not entrusted with public duty. 3. A writ of mandamus cannot be granted to enforce an obligation arising out of contract.

2. The Writ of Certiorari:

Literally, Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme Court to some inferior court or tribunal to transfer the matter to it or to some other superior authority for proper consideration. The Writ of Certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court. In other words, while the prohibition is available at the earlier stage, Certiorari is available on similar grounds at a later stage. It can also be said that the Writ of prohibition is available during the tendency of proceedings before a sub-ordinate court, Certiorari can be resorted to only after the order or decision has been announced. In Province of Bombay v/s Khushaldas[4] In this case it was held that whenever anybody of person having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially acts in excess of their legal authority, a writ of certiorari will lies. it does not lie to remove merely ministerial act or to remove or cancel executive administrative acts. Writ lies on Judicial bodies one of the fundamental principles in regard to the issuing of a writ of certiorari is that the writ can be availed of only to remove or to adjudicate upon the validity of judicial acts. the expression judicial acts includes the exercise of quasi-judicial functions by administrative bodies or authorities or persons obliged to exercise such functions and is used in contrast which are purely ministerial acts. the supreme court has laid down two propositions for ascertaining whether an authority is to act judicially-- 1. if a statute empowers a authority to decide disputes arising out of claim made by one party under the statute, which claim is opposed by another party, then prima facie and in the absence of anything in the statute to the contrary is the duty of the authority to act judicially and the decision of authority is a quasi judicial act. 2. if a statutory authority has power to do any act which will prejudicially affect the subject then although there are not two parties apart from the authority and the final determination of authority will be a quasi-judicial act provided that the authority is required by the statue to act judicially. Grounds on which writ can be issued.

The writ of certiorari can be issued to judicial and quasi-judicial body on the following grounds 1. where there is want or excess of jurisdiction The writ of certiorari is issued to a body performing judicial or quasi judicial function for correcting errors of the jurisdiction, as when an inferior court or tribunal acts without jurisdiction or in excess of it or fails to exercise it. the want of jurisdiction may arise from the nature of subject matter so that the inferior court has no authority to enter on the inquiry or upon some part of it. want of jurisdiction may also arise from absence of some preliminary proceeding or upon the existence of some particular facts which are necessary to the exercise of the courts power and the court wrongly assume that the particular condition exists. 2. For correcting error of law apparent on the face of record the writ is also issued for correcting an error of law apparent on the face of record. it cannot be issued to correct an error of fact. what is an error of law apparent on the face of record is to be decided by the courts on the facts of each case. In Hari Vishnu v/s Ahmed Ishaque[5] the Supreme Court held that no error could be said to be error on the face of record if it was not self-evident and it required an examination and argument to establish it. an arror of law which is apparent on the face of the record can be corrected by a writ of certiorari but not an error of fact, howsoever grave it may appear to be. the reason for rule is that the court issuing a writ of certiorari acts in a supervisory jurisdiction and not appellate jurisdiction. accordingly it cannot substitute its own decision on the merits of the case or give direction to be complied with by the inferior court or tribunal. 3. Disregard of principle of natural justice

(IV) The Writ of Prohibition: Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This Writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. It is a Writ issued by a superior court to lower court or a tribunal forbidding it to perform an act outside its jurisdiction. After the issue of this Writ proceedings in the lower court etc. come to a stop. The Writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, prohibiting the latter to continue proceedings in a particular case, where it has no legal jurisdiction of trial. While the Writ of mandamus commands doing of particular thing, the Writ of prohibition is essentially addressed to a subordinate court commanding inactivity. Writ of prohibition is, thus, not available against a public officer not vested with judicial or quasi-judicial powers. The Supreme Court can issue this Writ only where a fundamental right is affected. A writ of prohibition is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction in cases pending before it or acting contrary to the rules of natural justice. It is issued by a superior court to inferior courts from usurping a jurisdiction with which it was not legally vested, or in other words to compel inferior courts to keep within the limits of their jurisdiction. Thus the writ is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction S. Govind Menon Vs. Union Of India[6] Prohibition is not a continuation of the proceedings to be prohibited. Its object is on the contrary to arrest the inferior tribunal's proceedings. It is a collateral matter progress essentially between the two tribunals, an inferior one and other superior one by which the latter, by virtue its power of superintendence over the former, restrains it within its rightful competence. Its nature is held to depend upon the nature of proceeding to be prohibited. The writ can be issued only when the proceedings are pending in a court if the proceeding has matured into decision, writ will not lie. When the court, before whom the matter is pending, has ceased to exist, in that condition too, the writ of prohibition will not lie because there can be no proceedings upon which it can operate but on the other hand, if the court is functioning, the writ can be issued at any stage of the proceeding before the inferior court or tribunal. It can be issued only against a judicial or legislative functions.

(V) The Writ of Quo-Warranto: The word Quo-Warranto literally means "by what warrants?" It is a writ issued with a view to restraining a person from acting in a public office to which he is not entitled. The Writ of quowarranto is used to prevent illegal assumption of any public office or usurpation of any public office by anybody. For example, a person of 62 years has been appointed to fill a public office whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a Writ of quo-warranto against the person and declare the office vacant.

Who can apply

A writ of Qua-Warranto can be claimed by a person if he satisfy the court that— 1. the office in question is public office 2. it is held by a person without legal authority the writ of Qua Warranto is not issued in respect of an office of a private character. thus in Jamalpur Arya Samaj Sabha v/s Dr. D. Ram[7] in this case it was held that the high court refused to issue a writ Qua Warranto against the members of the working committee on the Bihar Arya Samaj Sabha, a private association. The meaning of the term Quo Warranto is ‘by what authority’. The writ of quo warranto may be issued against a person holding a public office or governmental privilege. The issue of summon is followed by legal proceedings, during which an individual’s right to hold an office or governmental privilege is challenged. The writ requires the concerned person to explain to the Court by what authority he holds the office. Although a writ of mandamus can also be issued on the grounds of mala fides and arbitrariness, but when the office is filled up, a writ of quo-warranto is preferable. Mandamus is desirable to be issued when the office is vacant.

Picture Source :