Writs under Constitution of India
Article 32 or the Fundamental right to Constitutional Remedies form the backbone of the rights given to the Indian citizens. It provides that the person need not first exhaust the other remedies and then go to the Supreme Court while proceeding under Article 32. Article 32(1) lays down the right to move to the Supreme Court for the enforcement of rights conferred by part III of the Constitution. Article 32(1) gives Supreme Court the power to issue directions, orders, writs whichever may be appropriate for the enforcement of fundamental rights.
Similarly Article 226 gives the High Court the power to issue writs for the enforcement of fundamental rights as well as for any other purpose. Article 226(1) provides that notwithstanding anything in Article 32, every High Court shall have power throughout the territories n relation to which it exercises jurisdiction to issue any person or authority, directions, orders, or writs for the enforcement of rights conferred by part III of the Constitution and for any other purposes.
The writs that may be issued by the Supreme Court or the High Court for the enforcement of fundamental rights are-
- Habeas Corpus
- Quo Warranto
Habeas corpus is a Latin term which means “you may have the body”. This writ is issued in form of an order calling upon a person by whom another person is detained to bring the person so detained before the Court and to let the Court know by what authority he has detained that person. If the Court finds out that the person has been illegally detained, then the Court will order that he be released.
Who can apply for this writ – Generally, the application is made by the person illegally detained but in certain cases, it can be made by any person on behalf of the prisoner i.e. a friend or a relation.
Technicalities and legal necessities are no impediments to the Courts entertaining even an informal communication, if the basic facts are found.
In Sunil Batra v Delhi Administration, the Supreme Court regarded a simple letter from a co-prisoner sufficient to invoke habeas corpus.
When will it lie – The writ will lie if the power of detention vested in an authority was exercised mala fide and is made in collateral or ulterior purposes. The detention becomes unlawful if a person who is arrested is not produced before the Magistrate within 24 hours of his arrest.
The detention is not illegal when – (a) the detention is made in accordance with the procedure established by law, (b) the conditions laid down in Article 22 are complied with.
The word “mandamus” means “the order”. Thus this writ is an order by a superior court commanding a person or a public authority (including the Government and public corporation) to do or forbear to do something in the nature of a public duty or in certain cases of a statutory duty. For example, a licensing officer has the duty to issue a license to an applicant who fulfills all the required conditions but if the officer refuses, the applicant has a right to seek remedy through a writ of mandamus.
When will it lie – The writ would be issued when there is failure to perform a mandatory duty but the aggrieved party has to show that he made a demand to enforce such duty but this demand was met with refusal.
The chief function of this writ is to compel performance of public duties prescribed by a statute and to keep subordinate tribunals exercising public functions within the limits of their jurisdiction. The writ can also be issue to stop a public authority from acting under a law which has been declared unconstitutional.
When it will not lie – The writ will not be granted in the following circumstances:
- When the duty is merely discretionary in nature. In State of Madhya Pradesh v Mandawara, the State Government made a rule making it discretionary to give dearness allowance to employees at a certain rate. The Supreme Court held that the writ of mandamus could not be issued to compel the Government to exercise this power.
- The writ does not lie against a private individual or any private organization.
- This writ cannot be granted to enforce an obligation arising out of a contract.
The writ of certiorari is issued by a Superior Court (Supreme Court and High Courts) to an inferior court or body exercising judicial or quasi judicial functions to remove a suit from such inferior court or body and adjudicate upon the validity of the proceedings or that body.
This writ can be availed only to remove or to adjudicate upon the validity of judicial acts. This includes quasi judicial functions by administrative bodies or authorities or persons obliged to exercise such functions. Whether a body is to act in a judicial manner or not depends upon each case but the Supreme Court has laid down two guidelines for ascertaining this –
- If a statute empowers an authority to decide disputes arising out of a claim made by one party under the statute, which claim is opposed by another party , then in absence of any thing contrary stated in the statute, it is the duty of the authority to act judicially and the decision of the authority is a quasi judicial act
- If a statutory authority has power to do any act which will prejudicially affect the subject, then although there aren’t two parties apart from the authority and the contest is between the authority, proposing to do the act and the subject opposing it, the final determination of the authority will be quasi judicial act provided the authority is required by the statute to act judicially.
Grounds of which certiorari can be issues:
- Where there is want of excess of jurisdiction
- Where there is error of law apparent on the face of the record but not error of a fact
- Where there is violation of procedure or disregards the principles of natural justice
This writ is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction, or acting contrary to the rules of natural justice. It is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction.
Difference between Prohibition and Certiorari
When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the Supreme Court for a writ of prohibition and on that an order will issue forbidding the inferior court from continuing the proceedings.
However, if the inferior court has already given its decision, the aggrieved party has to move to the Supreme Court for a writ of certiorari and on that an order will be made quashing the decision on the ground of jurisdiction.
When the case is pending but not yet disposed of, both writ of prohibition and certiorari will be applied.
The words “quo warranto” mean “what is your authority”. By this writ, the holder of an office is called upon to show to the court under what authority he holds the office. The object of this writ is to prevent a person to hold an office which he is not legally entitled to hold. If after the inquiry, it is found out that the person in fact has no authority or qualification to hold the office then the Supreme Court may issue an order to stop the person from continuing in the post.
A writ of quo warranto can be claimed by any person provided that he satisfies the Court that –
- The office in question is a public office, and
- It is held by a person without any legal authority.
This writ cannot be issued in respect of an office of a private character. In Jamalpur Arya Samaj Sabha v Dr. D. Ram, the High Court did not issue a writ of quo warranto against the members of the working committee of the Bihar Arya Samaj Sabha, it being a private association.
Any member of the public can question the right of a person to hold a public office. In G.D. Karkare v Shevde, the High Court issued a writ of quo warranto against the Advocate-General of M.P. after his appointment was challenged by a private individual.
If the holder of the office was initially disqualified to hold the office but subsequently the disqualification was removed, the writ will not be issued.
If in the writ a person is declared ineligible for holding that post, there cannot be an order for recovery of amount when he has rendered service.
 1980 SCC 488
 AIR 1954 SC 493
 Barada Kanta v State of West Bengal AIR 1963 Cal. 161
 Bihar E.G.F. Co-operative Society v Sipahi Singh AIR 1977 SC 2149
 AIR 1954 Pat. 297
 AIR 1952 Nag. 330