This article is written by Priyal Jain, a student of Amity Law School, Noida. This article aims to explain what writs are, their jurisdiction, types of writs, legal provisions regarding writs, in what situations writs can be invoked, and other important aspects related to it with relevant case laws. 

It has been published by Rachit Garg.

Introduction 

Every citizen is guaranteed certain fundamental rights under Articles 12-35 of the Constitution of India. However, granting fundamental rights alone is not sufficient; they must also be protected. So, for the protection of fundamental rights, a remedy is given under Article 32 of the Indian Constitution, which empowers the Supreme Court to issue writs when the fundamental rights of any citizen are violated. The writs issued in India are called the prerogative writs. In the case of L. Chandra Kumar v. Union of India, 1997, the Hon’ble Supreme Court held that the power of the Supreme Court to issue writs to the citizens of India for the enforcement of their fundamental rights forms a part of the basic structure doctrine, and hence this power can never be amended or eliminated. 

What is a writ jurisdiction 

The Supreme Court acts as a custodian of the fundamental rights of citizens. It is considered the “guarantor” and “defender” of the fundamental rights of the citizens of India. It has the power to issue five types of writs; habeas corpus, mandamus, quo warranto, certiorari, and prohibition. A writ is an order or command from a higher authority (Supreme court or High Court) which directs an individual to perform or abstain from performing a certain act. A writ petition can be filed by any individual when his/her fundamental rights are infringed upon by the state. 

Different types of writs 

There are five types of writs which are guaranteed by the Indian Constitution to the public in case their fundamental rights are being violated. The five types of writs mentioned below are issued in distinct circumstances, and each of them has different imputations. 

  1. Habeas corpus is a Latin term which means “to have a body of”
  2. Mandamus is a Latin term which means “to command”
  3. Quo warranto is a Latin term which means “by what authority”
  4. Certiorari is a Latin term which means “to certify”
  5. Prohibition is an English term which means “to forbid or to stop”

Writ of habeas corpus

The phrase ‘Habeas corpus’ in its longer form is called—”Habeas corpus coram nobis ad subjiciendum,” which means “you must have the body before us for submitting.”  

This writ helps in the release of an unlawfully detained person. By virtue of this writ, any person who is either in police or judicial custody or private custody is presented before the court of law and released if such detention is found to be illegal. The burden of proof lies with the public official or the private person who is taking a person into his custody. Article 20 of the Constitution states that a person cannot be forced to be a witness against himself or herself and that a person cannot be convicted twice or more for the commission of the same offence. The Article also states that a person can only be held liable for a certain offence if, at the time of the commission of the offence, there exists a law which is being violated by the commission of such an offence. This writ is used to enforce the fundamental right of personal liberty under Article 21 of the Constitution against unlawful detention. 

The writ petition can be filed by the detained person himself/ herself, or by any of his/ her friends or relatives on his/ her behalf. The writ can be issued against both public authorities and private individuals. 

In which situations can the writ be issued

  1. When the detention is not in accordance with the procedure established by law.
  2. When an arrest is made under a law that in itself is unconstitutional.
  3. When the procedure established by law is not strictly followed.

In which situations can the writ not be issued

  1. The writ is not available during the proclamation of an emergency.
  2. The writ is not available if the writ petition is dismissed by the competent court.
  3. The writ is not available when the detention of the person is related to the order of the court. 
  4. The writ is not available when the confinement of the person is shown to be legal by providing the necessary evidence. 

Illustration– Ram, a person, was taken into police custody by B, a police officer without a warrant to arrest Ram. B did not present Ram before the magistrate and also did not allow his family members to know about Ram’s whereabouts for many days. B was physically and mentally torturing Ram. Thus, it can be said that B has wrongfully detained Ram, and a writ of habeas corpus can be issued by Ram’s family on his behalf. 

Relevant case laws

  1. In the case of Kanu Sanyal v. District Magistrate Darjeeling and Ors.,(1974), it was held by the Supreme Court that this writ is a procedural writ and not a substantive writ. The Court also said that there should be a focus on examining the legality of the detention according to the facts of a case.
  2. In the case of Lallubhai Jogibhai Patel v. Union of India and Ors.,(1980), it was held that a second writ petition could not be issued if it is filed on the same grounds as the first writ petition. However, if there are certain additional grounds which were missed to be mentioned in the first petition on reasonable grounds, only then will a second writ petition be entertained by the Hon’ble Court. The writ petition, in this case, was filed challenging the order of detention, which was received by the petitioner on certain grounds. Later on, a few more additional grounds were added and thus a second petition was filed for the issuance of the writ of habeas corpus by the petitioner. 
  3. In the case of Sunil Batra v. Delhi Administration,(1979), the Supreme Court widened the scope of the writ of habeas corpus and held that the writ cannot only be issued in case of unlawful detention but can also be issued against ill-treatment of prisoners by the officers in authority while in custody, i.e., the writ also provides for the protection of prisoners. 

Writ of mandamus

This writ is issued by a court of higher authority directing the lower courts, or any other public servant, who has failed to perform their duty, to perform their mandatory public duty correctly and efficiently. This writ is the last resort, i.e., it is issued only when all other attempts to solve the problem have been made. The writ can be issued against any type of authority; legislative, judicial, quasi-judicial or administrative. 

The writ petition can be filed by any person who, in good faith, wants a public authority to function properly. The writ can be issued against any person or public authority who has failed to perform their mandatory public duty. 

In which situations can the writ be issued 

  1. The person or any public authority against whom the writ has to be issued must be under an obligation by law to perform a certain duty, which he has failed or neglected to do. 
  2. The public duty must be mandatory in nature, and there must be a failure to perform such a mandatory act. 
  3. The petitioner must have a legal right to compel the performance of such public duty.

In which situations the writ cannot be issued 

  1. This writ cannot be issued against the judges of the High Court and Supreme Court, compelling them to perform their duty. 
  2. This writ cannot be issued against the President of India and the Governor of any state, compelling them to perform their duty. 
  3. This writ cannot be issued against the working Chief Justice of India, compelling him to perform his duty. 
  4. This writ cannot be issued when the nature of the duty is discretionary. 
  5. This writ cannot be issued against a private individual. 
  6. This writ cannot be issued to enforce a private contract. 

Example- The writ can be issued to compel the performance of certain public duties like- holding elections, preventing dissolution of panchayats and municipalities, or restoration of public offices. 

Relevant case laws

  1. In the case of E.A. Co-operative Society v. the State of Maharashtra,(1966), the state government had denied the jurisdiction to revise the order of the lower authorities. The issue was to grant membership in the society to the respondent, which was first denied and then accepted by the Registrar of the society. Hence, an application for the issuance of this writ was filed in the concerned High Court, failing which the respondent reached the Supreme Court by special leave petition. It was held by the Hon’ble Supreme Court that the writ of mandamus can be issued where a public servant has denied its jurisdiction, which it has under the law.
  2. In the case of Sohanlal v. Union of India,(1957), the Government of India allotted plots to the refugees from Pakistan, provided they met the eligibility criteria set by the government. However, the appellant was evicted from his allotted plot and thus a petition was filed by him for the issuance of this writ. The Supreme Court said that a writ of mandamus can be issued against a private individual provided the private individual has merged with a public authority. 
  3. In the case of Manjula Manjari v. Director of Public Instruction (DPI),(1952), the Orissa High Court denied issuing a writ of mandamus against the DPI to order him to include the petitioner’s book in his list of approved books because this was a discretionary duty and not mandatory in nature. The petitioner’s contention was that she suffered a great amount of loss in terms of money when her book was not included in the list of approved books for the next year. 

Writ of quo warranto

This writ is issued asking public servants or any private person to prove under what authority they are holding a certain public office. The burden of proof lies with the concerned person. However, if the concerned person fails to prove his authority, he can be removed from public office. This writ prevents any person from wrongfully usurping a public office without any authority. 

The writ petition can be filed by any person whose fundamental rights are being violated, or in the public interest. The writ can be issued against any unlawful holder of a public office (public or private person).

In which situations can the writ be issued 

  1. There must be an existence of a public office created by law.
  2. The public office must be substantive and permanent in nature. 
  3. The position in a public office may be unlawfully held by a private person. 
  4. There has been a contravention of the law in appointing a person to the concerned public office. 
  5. The duties arising from public office must be public in nature. 

In which situations the writ cannot be issued 

  1. This writ cannot be issued if there is any political gain to the petitioner by the issuance of this writ. 
  2. This writ cannot be issued against any state minister.

Illustration- If A, a public servant, is holding a public office even after his retirement, then this writ can be issued against him as he no longer has the authority to hold such a public office. 

Relevant case laws

  1. In the case of Amarendra Chandra v. Narendra Kumar Basu,1952, the respondents wrongly admitted themselves into some rival Managing Committee of a private school, and there were many alleged loopholes in the procedure of the respondents being a part of the Committee. The Hon’ble High Court of Kolkata held that the writ of quo warranto could not be issued against usurping a private office. 
  2. In the case of the University of Mysore v. CD Govinda Rao,1963, the university had appointed a person who was not meeting the eligibility criteria required for the post. As a result, an application for the issuance of this writ was presented before the  Hon’ble Supreme Court which said that the office against which the issuance of the writ of quo warranto is prayed for must be of a “substantive” nature. 
  3. In the case of Mahesh Chandra Gupta v. Dr Rajeshwar Dayal and Ors.,2003, the appointment of the respondent in a medical college was questioned, but no connection was found between the respondent and the appointment. The Allahabad High Court was of the opinion that for the issuance of the writ of quo warranto, there must be some connection between the petitioner and the respondent. 

Writ of certiorari

This writ is issued by the higher courts (Supreme Court or High Courts) directing a lower court to transfer a particular case to the higher court for consideration. The higher courts also have the authority to quash an already passed order by the subordinate courts. This writ aims to correct the mistakes made by the judiciary at the lower level. 

A writ petition can be filed by any aggrieved person to the Supreme Court or High Courts against the decision given by the lower courts. 

In which situations can the writ be issued 

  1. This writ can be issued when a person is bound by a legal authority.
  2. This writ can be issued when such a person acts beyond its jurisdiction. 
  3. This writ can be issued when a person acting judicially commits an error of law.
  4. This writ can be issued when such a person has committed fraud or has violated the principles of natural justice. 

In which situations the writ cannot be issued 

  1. This writ cannot be issued in cases when the judge refuses to accept the request for review.
  2. This writ cannot be issued when the only objective is to waste the time and effort of the court. 

Example– When the decision of the lower court violates the fundamental rights of either of the parties, the aggrieved party can file for the writ of certiorari. 

Relevant case laws

  1. In the case of Noor Mohammad v. the State of U.P., (2020), the complainant’s sister committed suicide within two years of her marriage because of the harassment she had to face from the appellant and his family members for the demand for dowry. It was held by the Supreme Court that the writ of certiorari can be issued mainly to amend the jurisdiction-related errors made by the lower courts. 
  2. In the case of Syed Yakoob v. K.S. Radhakrishnan and Ors., (1963), the appellant was not given the permit for a two-stage carriage to run as an express service by the concerned authorities, even after completing all the required qualifications. As a result, an application was filed before the Supreme Court of India which held that only an error of law could be rectified by the issuance of this writ and not an error of fact. 
  3. In the case of A. Ranga Reddy v. General Manager of co-operative electric supply society, (1987), various appeals were made demanding elections of the co-operative societies to be held in the state. However, the High Court of Andhra Pradesh held that the writ of certiorari cannot be issued against a private person. 

Writ of prohibition

This writ is issued to prevent a lower court or tribunal from acting beyond its authorised jurisdiction. After the issuance of this writ, the proceedings in the lower court stop immediately, and the case is transferred to the authority that has authorised jurisdiction over the case. This writ can also be termed a “stay order.” 

This writ can be issued against any judicial or quasi-judicial body acting beyond its jurisdiction. This writ can be issued in the same situations in which the writ of certiorari is issued, except in cases of error of law. 

Relevant case laws 

  1. In the case of S. Govinda Menon v. Union of India, (1967), several allegations of dishonesty were made against the appellant, which were also to be inquired about by the government. As a result, a writ petition was filed to quash the proceedings initiated against him. The Kerala High Court held that the writ of prohibition can be issued in both situations—excess of jurisdiction or absence of jurisdiction. 
  2. In the case of Hari Vishnu v. Syed Ahmad Ishaque, (1954), the appellant was nominated for the election of the Rajya Sabha representing the state of Madhya Pradesh. The appellant won the elections, but an issue was raised that the ballot papers did not contain the distinguished marks, and the election of the appellant was terminated. The difference between the writ of certiorari and prohibition was given by the Hon’ble Supreme Court. The court was of the opinion that one can file for the writ of certiorari only after the judgement of a particular case has been delivered, and on the contrary, one can file for the writ of prohibition when the judgement of a particular case is still pending. The court further ruled that fresh elections must take place. 
  3. In the case of Prudential Capital Markets Ltd. v. State of A.P. and Ors., (2000), various petitions were filed to prohibit the district forum or state commission from addressing any complaints from the respondent. The High Court of Andhra Pradesh said that the writ of prohibition cannot be issued in cases where the district forum or state commission has already given judgement. 

Legal provisions under Article 32 of Indian Constitution

Article 32 is given in Part III of the Indian Constitution, which allows individuals to approach the Supreme Court in cases of violation of their fundamental rights. Dr B.R. Ambedkar, the Father of the Indian Constitution, once said that “Article 32 is the heart and soul of the Indian Constitution.” The powers provided to the Supreme Court under this Article are:

  1. The Supreme Court has the power to relax the locus standi and allow public interest litigation (PIL) by the citizens of India. The Supreme Court can provide relief to bonded labour, undertrial prisoners or victims of extra-judicial killings etc. 
  2. The Supreme Court also has the power to grant exemplary damages. 
  • In the case of Bhim Singh v. the State of Jammu and Kashmir, the fundamental rights of Bhim Singh were violated as he was not presented before the Magistrate within 24 hours. Thus, the Supreme Court ordered the state to grant exemplary damages to Bhim Singh. 
  • In the case of Rudul Sah v. the State of Bihar, the fundamental rights of Rudul Shah were violated as he was illegally detained by the state. Thus, the Supreme Court ordered the state to grant exemplary damages to Rudul Shah. 
  1. The Supreme Court has the power to issue writs or orders for the enforcement of any of the fundamental rights. 
  2. The rights of the individuals seeking remedy can be suspended only by the President of India during the proclamation of a national emergency in the country (Article 359).
  3. The Supreme Court has said that where relief can be granted by moving to the High Courts under Article 226, the aggrieved party must first move to the High court. 
  4. The Parliament can also transfer the power of the Supreme Court to some other authority with the required jurisdiction. 

Difference between writ jurisdiction of Supreme Court and High Courts

The basis of differentiationSupreme CourtHigh Court
ScopeThe power of the Supreme Court to issue writs is limited.The power of the High Court to issue writs is wider in scope than the power of the Supreme Court.
ProvisionThe power of the Supreme Court to issue writs is mentioned in Article 32 of the Indian Constitution. The power of the High Court to issue writs is mentioned in Article 226 of the Indian Constitution. 
Nature Article 32 is a fundamental right mentioned in Part III of the Constitution of India, which is guaranteed to all the citizens of the country. It also forms a part of the basic structure doctrine. Article 226 is not a fundamental right guaranteed to the citizens. 
Jurisdiction The jurisdiction of the Supreme Court to issue writs extends all over the country. The jurisdiction of the High Court to issue writs is limited only to the state or the union territory which comes under the jurisdiction of the concerned High Court. 
When can a writ be issued?The Supreme Court can issue writs only when the fundamental rights of an individual are violated. The High Court can issue writs in two circumstances- when the fundamental rights of an individual are violatedwhen the legal rights of an individual are violated, the issuance of the writ is a proper remedy in such a case under the law. 

Conclusion 

The authority to issue writs is one of the most important authorities of the Supreme Court. In my opinion, the issuance of writs is the greatest security provided to the citizens of the country for their security. Therefore, the court must use this authority discreetly in order to ensure quick and fair justice for the aggrieved parties. No one should misuse this power of the higher courts, and only reasonable issues must be considered for the issuance of writs. Lastly, in the case of Kesavananda Bharati v. the State of Kerala, (1973), the largest ever 13-judge bench of the Supreme Court ruled that Article 32 is a part of the basic structure doctrine, and thus it is beyond the amending powers of the parliament. 

Frequently Asked Questions (FAQs) 

Can a District Court issue writs?

The District Court can issue writs only when the district judge is empowered by the parliament to do so. It helps in providing fair and speedy justice to the public. 

Can a person file a writ petition on another person’s behalf?

Yes, anyone can file a writ petition on behalf of another person. 

Which article of the Indian Constitution provides High Courts with the power to issue writs?

The High Courts can issue writs under Article 226 of the Constitution not only in situations where the fundamental rights of an individual are violated but also in other situations. 

Which writ is known as postmortem?

The writ of quo warranto is known as postmortem.

References 


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