What is a writ under the Indian constitution, and how many types of writs are there in our constitution?
- What is a writ?
- Article 32 of the Constitution, the Right to Constitutional Remedies
- Article 226 of the Constitution, the Right to Constitutional Remedies
- Types of writs
What is a writ?
A writ is a written order given by the Supreme Court or High Court.
A person whose right has been arbitrarily violated by administrative action may approach the Court for an appropriate remedy. The Constitution of India provides writ jurisdiction to the Supreme Court and High Courts, respectively, for enforcement/protection of a person’s fundamental rights under Articles 32 and 226. A writ is an instrument or order of the Court by which the Court (Supreme Court or High Court) directs any person or officer or authority to do or refrain from doing any act.
Concept of Writs:
- A Writ is a command issued by the Court to another person or authority requiring that person or authority to act or refrain from working in a specific manner.
- Thus, writs are a critical component of the Courts' judicial power.
- The Indian Constitution adopted the concept of prerogative writs from English common law.
Constitutional Provisions of Writs in India:
- The Indian Constitution empowers the Supreme Court and High Courts to issue writs to enforce the Fundamental Rights conferred by Part III under Articles 32 and 226.
- The writs concept of India is borrowed from English law, called 'Writs of Privileges.'
- The power to issue writs is primarily a provision designed to ensure that every citizen has access to constitutional remedies.
- As we all know, the Right to Constitutional Remedies is the guarantor of all other fundamental rights available to the people of India.
- In addition to the preceding, the Constitution allows the Parliament to empower the Supreme Court to issue writs for other purposes.
- Indian High Courts are empowered to issue writs to enforce any right conferred by Part III and any other purpose.
Article 32.' the Constitution the Right to Constitutional Remedies: It is a fundamental right that states that every individual has the right to approach the Supreme Court to enforce other fundamental rights recognized by the Constitution.
Dr. Bhim Rao Ambedkar said Article 32 is the 'heart and soul of the Constitution' of a fundamental right of Part III. It is a 'right to constitutional remedy' that provides the right to be protected from violating other fundamental rights. In other words, if the government violates any fundamental right, Article 32 empowers a person whose fundamental right has been infringed to approach the Supreme Court to enforce his fundamental rights.
- Article 32(1): Provides the right to approach the Supreme Court to claim or enforce the Fundamental Rights provided under Part III.
- Article 32(2): Empowers the Supreme Court to issue directions, orders, or writs to enforce those fundamental rights, namely habeas corpus, mandamus, Certiorari, Prohibition, and quo warranto.
- Article 32(3): Empowers Parliament to issue orders, directions, and writs to any other court within the local jurisdiction of India.
- Article 32(4): States that the right to constitutional remedy under this Article cannot be suspended unless otherwise provided by the Constitution.
The Supreme Court can issue directions, orders, or writs to enforce any fundamental right. The writs include habeas corpus, mandamus, Prohibition, Certiorari, and warranties.
Case: Nain Sukh Das v. State of Uttar Pradesh
In this case, the scope of Article 32 has been interpreted. Article 32 is relatively narrow as it can be invoked only to violate the fundamental rights guaranteed under Part III of the Constitution.
Article 226 of the Constitution, the Right to Constitutional Remedies:
- This Article empowers a High Court to issue writs including habeas corpus, mandamus, Certiorari, Prohibition, and warrants to enforce citizens' fundamental rights and any other purpose.
- 'For any other purpose' phrase refers to enforcing a common legal right. It implies that the High Court's writ jurisdiction is broader than that of the Supreme Court.
- This writ can be issued to any person, authority, and government within its territorial jurisdiction and outside its jurisdiction, if the cause of action arises within its territorial jurisdiction.
- This is because SC can issue writs only to enforce fundamental rights and not for any other purpose; This does not extend to the case where a breach of a common legal right is alleged.
Case: Bandhuya Mukti Morcha v Union of India
In this case, the scope of Article 226 is explained. Article 226 is much broader than Article 32. It empowers the High Courts to issue orders, directions, and writs to enforce fundamental rights and legal rights granted to the underprivileged through specific statutes.
Types of Writs in the Indian Constitution:
Articles 32 and 226 both provide five types of writs: writ of habeas corpus, mandamus, Prohibition, Certiorari, and quo-warranto. These are known as writs of privilege in English law because they arose in the privileged power of superintendence over the proper observance of law by the officers and tribunals of the king. Writs of privilege are extraordinary remedies intended to be applied in exceptional cases in which ordinary legal remedies are insufficient.
Article 32: The Constitution allows the Supreme Court to issue writs to enforce Fundamental Rights (FRs).
Article 226: It empowers High Courts to issue writs to any person or authority within its jurisdiction to enforce fundamental rights or other legal rights.
- Habeas corpus,
- Certiorari and
- Habeas Corpus:
The Latin meaning of 'habeas corpus is 'one who has a body. Habeas Corpus writ is used to enforce the fundamental right of personal liberty against illegal detention. Through habeas corpus, the Supreme Court or High Court orders a person who has been arrested to before bringing the body of another person before the Court. Under a habeas corpus writ, the Supreme Court or High Court orders a person who has been arrested for getting a ring on the body of another person before the Court.
Grounds for the issue of Habeas Corpus:
- Public authorities and private individuals can be served with a writ of habeas corpus.
A writ of Habeas Corpus cannot be issued in the following situations:
- When custody is valid.
- Detention is outside the Court's jurisdiction.
- When the proceeding is for contempt of any legislature or Court.
- The detention is by a competent court.
Case: ADM Jabalpur Vs Shiva Kant Shukla
It is also known as the 'habeas corpus.' This landmark judgment held that the writ of habeas corpus could not be suspended even during an emergency.
- Mandamus Writ
- Mandamus means 'We Command.' The Supreme Court or High Court issues a writ of mandamus by ordering a public official who failed to perform his duty or has refused to perform his duty to resume his work.
- A writ of mandamus is issued by the courts to compel the public authorities to resume their work.
- Courts issued writs of mandamus directing the public authority to perform its duty.
- An injunction can be issued against any public figure, a lower court, a corporation, an inferior court, a tribunal, or the government for the same purpose other than public officials.
Grounds for the issue of mandamus: A writ of mandamus can be issued against any public authority in some instances:
- Abuse of discretionary authority;
- Exceeding the scope of his power;
- Ignoring relevant factors;
- Deciding on irrelevant factors;
- Acting with malicious intentions.
A writ of mandamus cannot be issued in the following situations:
- To give effect to the departmental direction, which does not have statutory force.
- To order someone to do work when the type of work is discretionary and not mandatory.
- To enforce a contractual obligation.
- The writ of Mandate cannot be issued against the President of India or the Governors of the State.
- A writ of mandamus cannot be issued against the Chief Justice of a High Court acting in a judicial capacity.
- A writ of mandamus cannot be issued against private persons (unlike habeas corpus).
Case: Hemendra Nath Pathak Vs. Gauhati University
The petitioner prayed for an injunction against the university where he studied as the university failed the petitioner even after obtaining the required passing marks as per the statutory rules of the university. A writ of mandamus was issued, and the university was directed to declare him as passed by the university's laws.
- Prohibition Writ:
- Prohibition means 'to prohibit' or 'to forbid.' A writ of injunction directs inaction on the part of the lower judicial courts.
- When an order of 'prohibition' is issued by a higher court against a lower court to prevent the latter Court from exceeding its jurisdiction or taking away the jurisdiction it does not have.
A writ of Prohibition can be and cannot be issued in the situation:
- Writ of injunction can be issued only against judicial and quasi-judicial authorities.
- Writs of Prohibition cannot be issued against administrative officials, legislative bodies, and private persons or bodies.
Case: East India Company Commercial Ltd. Vs. Collector of Customs
In this case, the Supreme Court emphasized the meaning of the prohibition writ. It stated that it is an order passed by a higher court directing a lower/inferior court to stop the proceedings because the Court either does not have jurisdiction or the Court is exceeding its authority in deciding the case. Writs are written orders issued by the Supreme Court or a High Court directing constitutional remedies for Indian citizens who have violated their fundamental rights. Article 32 of the Indian Constitution deals with constitutional remedies that an Indian citizen can seek from the Supreme Court of India and the High Court of India if their fundamental rights have been violated. The Supreme Court can issue writs to enforce rights under the same Article, whereas under Article 226, the High Court has the same power.
- Certiorari Writ:
Certiorari means 'to be certified' or 'to be informed.' A higher court issued a Certiorari to a lower court or tribunal to transfer a pending case to a later or reverse a subsequent order in a case.
A writ of Certiorari is issued on the following grounds:
- An excess of jurisdiction;
- Violating the principle of natural justice;
- Passing a wrongful order or judgment;
- Overlooking the procedure established by law.
As a result, unlike Prohibition, which is only preventative, Certiorari is preventive and curative.
The Mandate of Certiorari Writ: It is issued by a higher court (in authority) to a lower court or tribunal which orders them:
- To transfer a case pending with him either or
- set aside the order of the lower Court
Grounds for the issue of Certiorari Writ:
- Initially, a writ of Certiorari was issued only against judicial and quasi-judicial officers, but later, its scope was extended to include administrative references.
- Before 1991: The writ of Certiorari was issued only against judicial and quasi-judicial officers and not against administrative officers.
- After 1991: The Supreme Court ruled that a certificate could also be issued against administrative officials affecting the rights of individuals.
A writ of Certiorari cannot be issued in the following situations:
A writ of Certiorari cannot be issued against legislative bodies and private persons or bodies.
Case: Surya Dev Rai Vs. Ram Chander Rai & Ors.
The apex court held that a writ of Certiorari could be issued only against a lower court and not against a higher court or a court of a similar hierarchy.
- It means 'by what authority or warrants' or 'By what right or warrant.'
- It is issued by the Court to investigate the legality of a person's claim to a public office. As a result, it prevents a person from illegally usurping public office.
- The writ can only be issued in the case of a substantive public office of permanent character established by statute or by the Constitution.
- It reviews the functions of administrative officers who make appointments to public offices.
Grounds for the issue of qua-warranto:
- A writ of quo-warranto can only be invoked when an open public office of the permanent character created by a statute or Constitution is involved.
- Unlike the other four writs, it can be sought by the aggrieved party and any person interested.
A writ of quo-warranto cannot be issued in the situation:
- There is no writ of quo-warranto available against a private or ministerial office.
With equal power to enforce Fundamental Rights, Article 226 has a much wider scope than Article 32. It can also implement other legal rights provided by the Indian Constitution or any other statute. Article 32 is known to be the heart and soul of the Constitution. Article 226 of the Constitution of India, being a constitutional authority, gives discretionary power to the High Courts. Moreover, it is the decision of the Supreme Court under Article 32 which replaces the conclusion of the High Courts under Article 226. Thus, along with the difference in powers, both the articles ensure that the rights of citizens are protected and the provisions of the Constitution. These writs are an effective way of enforcing the rights of the people and compelling the officials to perform the duties they are bound to perform under the law. Since habeas corpus and quo-warranto are limited to specific situations, the two most sought-after writs governing the actions of administrative bodies are Certiorari and mandamus.
To read this article in Hindi - Writ
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