Writs in India can be defined as a formal written order issued by a body having judicial or administrative jurisdiction. It is primarily used to protect the liberty of a person and is issued when he/she has been detained illegally or wrongfully.
Writs in India are the most significant aspect of the Indian Constitution. Part III of the Indian Constitution deals with the Fundamental Rights of the citizens of the country. Writs in India include the right to constitutional remedy which is deemed to be the most important of all the fundamental rights bestowed upon the citizens.
Writs In India
Article 32 of the Constitution classifies the different kinds of writs in India as follows:
- Habeas Corpus,
- Quo Warranto
Article 32(1) guarantees the “right to move the Supreme Court by proceedings for the enforcement of the rights“ conferred by Part III of the constitution of India. Clause (3) empowers High Courts to exercise these writs within their jurisdiction. And, such is the importance of this right that Clause (4) prevents the suspension of the right except if provided by the Constitution. The importance and significance of this right can be understood in the words of Justice Gajendragadkar in Prem Chand Garg v. Excise Commr., U.P., AIR 1963 SC 996, 999 –
“The fundamental right to move this Court can, therefore, be appropriately described as the cornerstone of the democratic edifice raised by the Constitution. That is why it is natural that this Court should, in the words of Patanjali Shastri, J., regard itself ‘as the protector and guarantor of fundamental rights’ and should declare that “it cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against infringements of such rights (vide Romesh Thappar v. State of Madras). In discharging the duties assigned to it, this court has to play the role of a ‘sentinel on the qui vive’ (vide State of Madras v. V.G. Row), and it must always regard it as its solemn duty to protect the fundamental rights ‘zealously and vigilantly”.”
Writs in India have not been defined anywhere in the Constitution and therefore, to understand their meaning and essence, we need to understand them through the words of Judges in various landmark judgements. They can be understood as under:
Habeas Corpus is a Latin term which translates to, ‘You may have the body’. This is that remedy of law through which any individual can file a suit of civil nature for unlawful detention and imprisonment. This writ can be issued to produce a person who has been so detained, before a court and to release him if such detention is found to be illegal.
The usages of Habeas Corpus as a constitutional remedy in India has been vast and extensive. In 1976, the Habeas Corpus writ was used in the famous Rajan’s Case, wherein police custody, a student, has become the victim of torture by the police during the National Emergency in India. It was held that the right against unlawful detention was not one which could be extinguished during the emergency.
More recently, on 12th March 2014, after Subrata Roy’s arrest, his learned counsel filed a Habeas Corpus petition before the Chief Justice of India. This can be cited as another example of the usage of this writ in India.
The writ of Habeas Corpus can also be dispensed using the doctrine of locus standi. Locus Standi denotes the capacity to file a petition in a court of law. In a petition for Habeas Corpus, the ability to file a petition rests on not only the person who has been unlawfully detained but also on a competent person who can move on his behalf, and this includes relatives, business partners and so on. After the rise of Judicial activism, the usage of this writ has expanded manifold.
Mandamus is one of the writs in India, which means, ‘we command’. Mandamus is an order issued by the higher courts such as the Supreme Court or the High Court’s directing a lower court or public authority to perform a statutory duty. This writ is issued when a lower court or any public authority has failed in doing a civic duty assigned to it. But this writ cannot be issued to force an authority or a lower court to act beyond statutory provisions.
The Constitution empowers all High Courts to issue directions, orders or writs including the writ of mandamus for the enforcement of any of the rights conferred by Part III of the constitution. The Supreme Court also enjoys the right to issue mandamus for the implementation of fundamental rights.
The main reason why mandamus is sought in India is– to compel public authorities to perform their statutory duties towards the public. Such a petition must be equally accompanied by a corresponding right vested in the petitioner making a claim. The essence of mandamus lies in its nature to command the execution of a statutory provision. Only the Supreme Court and High Courts are constitutionally empowered to exercise the jurisdiction of this Writ under Article 32 and Article 226, respectively. The direction under this writ must duly be followed.
Prohibition is an English word that means to forbid. Also known as the ‘stay order’, this writ is issued by a higher court when an inferior court or a tribunal or a quasi-judicial body acts beyond its jurisdiction. The issuance of the writ by the Supreme Court or the High Court’s prohibits the inferior authority from exercising their powers beyond their jurisdiction. After the issue of this writ, proceedings in the court, etc. come to a halt.
In India, this writ was issued in the case of S. Govind Menon vs Union of India (AIR 1967, SC 1274). In this case, it was held that a superior court could issue this writ at any time of the proceeding if the inferior court were acting beyond its jurisdiction. Also, it cannot be issued against a body whose functions are exclusively legislative or administrative. This writ is essential to prevent an inferior body from exceeding its jurisdiction.
Quo Warranto essentially means “by what authority?” It questions the authority of an individual in a public office if that individual is not entitled to be in the position which he is holding. It requires him to answer to the Court about how he has come to hold such office and what authority he has in the said office. The court through this writ may direct the individual to perform certain functions or to vacate the office. For Example, a High Court can issue the writ of Quo Warranto against an individual who continues to hold a public office beyond his statutory retirement age.
There are a few conditions which are to be satisfied for filing a writ under Quo Warranto, and they include:-
- The said office must be a government or a public office which performs general duties. Ex: Municipal Corporations.
- The public office should be permanent and cannot be terminated and should be having a real existence.
- A person against whom the writ is issued must possess the public office at the given time.
- The writ shall be issued only when a particular person holds the public office, illegally or without a statutory provision.
The term ‘Certiorari’, literally means – to be reviewed. This writ can be prayed for to the Supreme Court or the High Courts for judicially reviewing the judgement, order or decree of an inferior court or any quasi-judicial authority or any tribunal if the aggrieved party or the superior court thinks that the order was passed without due considerations. The superior court by virtue of this writ can order the transfer of the case in question to a proper court for it to be considered appropriately.
In the famous case of Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors., (1958) SCR 1240, the Constitution bench of the Supreme Court laid down the parameters of a proper exercise of jurisdiction. Unlike the writ of prohibition which is usually issued at an earlier stage of a proceeding, a writ of certiorari can be issued at any stage of the procedure. The fundamental objective of both is to secure proper exercise of jurisdiction by a judicial authority.
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Any citizen can move to the Supreme Court for getting his fundamental right/rights protected through any of these writs. Besides the Supreme Court, the High court can also issue these writs (Article 226) for enforcing the fundamental rights of the people., During an emergency, however (under Articles 352 or 356) the President has the right by a specific order to suspend the right to move a court for the enforcement of the fundamental rights, except the rights available under Articles 20 and 21.
The right to constitutional remedy (Article 32) is often rightly described as the most fundamental of all the rights because without it; the people would be left with no means to get their rights enforced.