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constitutional_law:writs_1750612019

Writs

The Indian Constitution empowers the Supreme Court and High Courts to issue writs for enforcement of any of the fundamental rights conferred by Part III of Indian Constitution.

The writ issued by Supreme Court and High Court differs mainly in three aspects:

  • The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a High Court can issue writs for enforcement of fundamental rights along with “ for any other purpose” (refers to the enforcement of any legal right).
  • SC can issue writ against a person or government throughout the territory whereas High Court can issue writs against a person residing or against a government located within its territorial jurisdiction or outside its jurisdiction only if the cause of action arises within the territorial jurisdiction.
  • SC writs are under Article 32 which in itself is a fundamental right thus SC cannot refuse to exercise its writ jurisdiction. Whereas article 226 is discretionary thus HC can refuse to exercise its writ jurisdiction.

Types of writs

Habeas Corpus

Habeas corpus is a Latin term which literally means “You may have the body”. The concept of writ of habeas corpus has originated from England. This is a writ or legal action which can be used by a person to seek relief from illegal detention. The writ is a direction of the Court to a person who is detaining another, commanding him to bring the body of the person in his custody at a specified time to a specified place for a specified purpose.

A writ of habeas corpus has only one purpose: to set at liberty a person who is confined without legal justification; to secure release from confinement of a person unlawfully detained. The writ does not punish the wrongdoer. If the detention is proved unlawful, the person who secures liberty through the writ may proceed against the wrongdoer in any appropriate manner. The writ is issued not only against authorities of the State but also to private individuals or organizations if necessary.

Mandamus

The Latin word 'mandamus' means 'we command'. The writ of 'mandamus' is an order of the High Court or the Supreme Court commanding a person or a body to do its duty. Usually,it is an order directing the performance of ministerial acts. A ministerial act is one which a person or body is obliged by law to perform under given circumstances. For instance, a licensing officer is obliged to issue a license to an applicant if the latter fulfills all the conditions laid down for the issue of such license. Similarly, an appointing authority should issue a letter of appointment to a candidate if all the formalities of selection are over and if the candidate is declared fit for the appointment. But despite the fulfillment of such conditions, if the officer or the authority concerned refuses or fails to issue the appointment letter, the aggrieved person has a right to seek the remedy through a writ of 'mandamus'.

Certiorari

Literally, Certiorari means to be certified. It is issued by the higher court to the lower court either to transfer the case pending with the latter to itself or to squash the order already passed by an inferior court, tribunal or quasi judicial authority. The conditions necessary for the issue of writ of certiorari.

  1. There should be court, tribunal or an officer having legal authority to determine the question with a duty to act judicially.
  2. Such a court, tribunal or officer must have passed order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or officer.
  3. The order could also be against the principles of natural justice or the order could contain an error of judgment in appreciating the facts of the case.

Prohibition

The 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. The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, or quasi judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to try. After the issue of this writ, proceedings in the lower court etc. come to a stop.

Quo Warranto

The word Quo-Warranto literally means “by what warrants?” or “what is your authority”? It is a writ issued with a view to restrain a person from holding a public office to which he is not entitled. The writ requires the concerned person to explain to the Court by what authority he holds the office. If a person has usurped a public office, the Court may direct him not to carry out any activities in the office or may announce the office to be vacant. Thus High Court may issue a writ of quo-warranto if a person holds an office beyond his retirement age.

Difference between Prohibition and Certiorari

  1. While the writ of prohibition is available during the pendency of proceedings, the writ of certiorari can be resorted to only after the order or decision has been announced.
  2. Prohibition can be issued only against judicial and quasi judicial authorities whereas Certiorari can be issued even against administrative authorities affecting rights of individuals.

Created on 2020/10/19 23:13 by • Last modified on 2021/01/31 10:53 by LawPage