What is Writ?
Writs are a formal order from the Supreme Court or High Court ordering Indian Citizens substantive redress against breaches of their fundamental rights. Article 32 of the Indian Constitution deals with constitutional remedies which an Indian citizen can pursue from the Supreme Court and the High Court against a violation of his / her fundamental rights. The same clause authorizes the Supreme Court to grant writs for law enforcement while the High Court has the same authority under Article 226.
Historical Background
The root of writs arose in English courts, with folk courts creating English law — moots to structured courts Common Law-Common Law. The rule of writs came from the directions issued by the table of King England. The writing was specifically a Royal Seal order. It was issued on a petition filed with the King in Council for the performance of special judicial functions in a particular situation. At the initial point, the King’s court was made up of barons and strong ecclesiastical with legislative, administrative and judicial duties. With various periods of history, however, it assumed specific names and types but the essence of this incredible force stayed much the same.
The origin of writs in India can be traced back to Regulating Act 1773 by Which Charter established a Supreme Court in Calcutta in 1774. The Supreme Tribunals of Madras and Bombay also established a separate charter With comparable clauses respectively in 1801 and 1823. Patent letters to all three tribunals became Done. The supreme courts replaced such tribunals in 1862 according to the High Court Act 1861. The High Courts so formed enjoyed all the Powers retained by the Supreme Courts substituted by such Curtains.
Types of Writs in India
India’s Supreme Court is the guardian of people’s human freedoms. It has original and large forces for that. This provides five forms of writs to uphold people’s human rights. The five types of writs are:
- Habeas Corpus
- Quo Warranto
- Mandamus
- Certiorari
- Prohibition
Habeas Corpus–
Such writing is primarily meant to resolve a person’s unlawful imprisonment. When a person is hurt or incorrect as a consequence of unlawful detention the party must be discharged and provided as a matter of timely redress under this writ. The only precondition for issuing it is that the individual was to be confined and that such confinement should be
Unlawful. With the sole exception of war prison and the hostile species, it is open to the toughest against the mightiest. A complaint under Art. 32 does not lie if the arrest was carried out by a private citizen and not by or under state jurisdiction or directions.
Writ of habeas corpus is a writ for deciding the validity or illegality of imprisonment and not for sentencing an individual for a previous crime. The validity of the arrest needs to be seen on the day that case is considered by the judge. Unless a new arrest warrant is released at some point until the court orders the release of the prisoner, the judge can 21 deny the release even though the prior arrest was unconstitutional.
The rule of incarceration which to be re-filed on the grounds of fresh proof until rejected and the concept of res-judicata will not be applicable in these situations. If, according to Art. 32, the right to move the Supreme Court was suspended under Art. 32(4) under the provisions of Art. 359, the Supreme Court could not be remitted under Art. 32. However, even if fundamental rights are suspended under Article 359, the right under Art. 226 to move the High Court is not
Suspended and should also be referred to the High Court in such a case. The court can not invalidate the terms of the Act in which imprisonment is requested in a writ of Habeas Corpus.
Nevertheless, the court is required to obtain an explanation at all occasions, within the constitutional rights of the higher judiciary, on when an individual’s right was limited.
Who can apply for the writ
The general rule is that an individual who is unlawfully detained will file an appeal. Though in such situations, another person can request the habeas corpus on behalf of the inmate, i.e., a Friend or a Relative.
In Sunil Bhatra v/s Delhi administration.
It was maintained that the habeas corpus writing should be given not only to free a citizen from unlawful imprisonment but also to shield inmates from cruel and barbarous punishment. The complex function of judicial remedy is introduced into the habeas corpus, which provides a flexible resilience and organizational usefulness as a bastion of justice even in detention.[1].
In veena Sethi v/s State of Bihar
In this case, it was held that the court was told by a letter that certain detainees, who were crazy at the time of trial but later found sane, were not released owing to negligence by state officials and had to stay in jails for 20 to 30 years. The court has demanded that they are published immediately.[2]
Quo Warranto –
This writ is primarily provided to discourage usurpers from holding Public Offices. Quo-Warranto’s court, narrowly put, gave a judicial investigation by way of warning to an individual holding a public position under which he is not entitled. The court tells him to prove why under what reason he’s keeping the position. This is a tool for monitoring administrative activity in problem regarding appointments to elected positions. The usurper of public office will be expelled through this process, and the legitimate individual shall be allowed to hold this position.
The complainant of a writ for Quo-Warranto, as a precondition for such a request to be issued by the court, shall inform the court that the position in dispute is a public office and was occupied without any legitimate authority by the usurper. Under these proceedings, the court must investigate whether or not that person’s selection has been rendered in compliance with the statute. In these laws, the legitimacy of the regulations or legislation by which this selection was rendered cannot be questioned procedures.
A stranger to such post can apply for a Quo Warranto writ as well. The office to which the disputed appointment was rendered would be a legitimate public service. Quo-Warranto’s writ operates against the officeholder and not the Govt. The individual so omitted is not to be re-named. A writ of Quo-Warranto is given to prohibit unconstitutional power from being practised continuously. However, the acts previously performed by the jurisdiction cannot be undone.
It cannot jeopardize the constitutional privileges granted to persons in this cycle. While a mandamus writing can also be issued on the grounds of malefic and arbitrariness, it is easier to write Quo Warranto before the office is finished. If the workplace is vacant Mandamus would be sexy.
Jamalpur Arya Samaj Sabha v/s Dr D. Ram
In this case, it was held that the high court had declined to grant a Quo Warranto writ against the leaders of the Bihar Arya Samaj Sabha working committee, a private organization. The word Quo Warranto’s definition is ‘under what authority.’ The writ of Quo Warranto may be given against an individual occupying a public position or right in government. The question of summons is accompanied by court action, through which the eligibility of a person to occupy a position of privilege in government is disputed.[3]
Mandamus:
The primary aim of this writing is to ensure the proper running of the Govt machinery. An order of mandamus is a directive issued to any individual, company, or inferior tribunal, ordering them to do anything unique that pertains to their/his office and is of a public service nature. The civil officials are accountable to the courts for the fairness of their public responsibilities and the acts under it. If a public official refuses to do what is necessary by law or goes exceed what needs to be accomplished, a mandamus order can be sent to compel him to do what was needed by law.
Ayyangar and J. Ha, found, “The Constitution enshrines and guarantees the rule of law and Art. 226 is designed to ensure that each authority in the State, including the Government, acts bona fide and within the limits of its power and we consider that when a Court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked, it is incumbent on the Court to afford justice to the individual.”[4]
In D.S Nakara v/s Union of India[5]
Certiorari
Certiorari means certifying yourself. The Writ of Certiorari is provided by the Supreme Court for due consideration by a lower court or tribunal to move the case to it or some other superior authority. The Supreme Court or any High Court can issue the Writ of Certiorari for quashing an order already passed by an inferior court. That is, while the ban is valid at the earlier stage, Certiorari will be accessible at a later stage on similar grounds. It may also be claimed that the Writ of Prohibition is accessible during the propensity of litigation before a lower judge, Certiorari may only be remedy after the declaration of the order or judgment
In Province of Bombay v/s Khushaldas
In this case, it was held that whenever any person with legal authority to determine questions that affect the rights of subjects and have the duty to act in a judicial manner that exceeds their legal authority, there will be a certiorari writing. This does not lie in repealing merely legislative acts, or suspending or cancelling executive actions.[6]
Prohibition:
Prohibition writ involves banning or preventing which is popularly regarded as ‘Keep Order.’ This Writ shall be issued where a lower court or entity seeks to exceed the limitations or rights imposed upon it. It is a Writ issued to a lower court by a superior court or a tribunal that prohibits it from performing an act outside its jurisdiction. Come to a halt after the question of this Writing litigation in the lower court etc.
Any High Court or the Supreme Court shall grant a Writ of Prohibition to every lower court, banning the latter from pursuing litigation in a specific case where it has no proper authority to continue. Whereas the Writ of mandamus orders to perform a single task, the Writ of prohibition is directed to inactivity directing inferior tribunal. Writing of prohibition is also not possible against a non-judicial or quasi-judicial police official. The Supreme Court can issue this Writ only where it concerns a fundamental right.
- Govind Menon vs. union of India
Prohibition is not a continuation of the to be banned trials. The goal is to the contrary arrest the proceedings of the lower tribunal. It is a collateral matter which essentially progresses between the two tribunals, an inferior one and another superior one whereby the latter, under its superintendence over the former, restrains it within its legitimate competence. It is held that its essence depends on the nature of the proceeding to be prohibited.
The writ can be issued only when the proceedings are pending in a court if the proceeding has matured into a decision, the writ will not lie. If the court, in which the case is pending, has ceased to exist, under that condition too, the prohibition writ does not lie because there may be no trials in which it may act, however, on the other hand, if the court exists, the writ can be released at any point of the trials before the lower court or tribunal. This can only be given against a judicial or legislative feature.[7]
CONCLUSION AND SUGGESTION
India’s constitution has provided specific powers to the general public for the protection of rights under Articles 32 and 226. Under the Indian legal system, power is granted to the Supreme Court and the High Courts in Judicature of all Indian States to grant ‘prerogative writs.’ The Indian Constitution provides for sections of the written law. The Supreme Court, the nation’s highest, may issue writs for the preservation of fundamental rights under Article 32 of the Constitution and the enforcement of rights other than fundamental rights under Articles 139, while the High Courts, the States’ supreme courts, may issue writs under Articles 226.
The Indian justice system has dispensed with the conventional concept of locus standi, meaning that if a detained person is not in a position to file a complaint, any other person may push it on his behalf. In recent times, the reach of habeas relief has increased through acts by the Indian judiciary.
References-
[1] AIR 1980 SC 1795
[2] AIR 1983 SC 339
[3] AIR 1954 Pat 297
[4] Pratap Singh v. State of Punjab, A.I.R. 1964 SC 72 page 83
[5] 1983 1 SCC 304
[6] AIR 1950 SC 22
[7] AIR 1967 SC 1274
This blog is written by Arvind Bhati, Lloyd Law College.
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