This Article is written by Adarsh Singh Thakur, 3rd-year student, Indore Institute of Law. He discusses the writs and their types under the Indian Constitution in detail.
The Supreme Court and the High Courts have been provided with many powers which they exercise to provide justice to the people. One of the most important tools or power which the courts have been provided with by the constitution is the power to issue writs.
A Writ means a command of the Court to another person or authority by which such person/authority has to act or abstain from acting in a certain way. Thus, writs are a very essential part of the judicial power of the Courts.
Writs in the Constitution
In India, the constitution has provided the Supreme Court with the power to issue the Writ under Article 32 of the Constitution. Under Article 32, when any Fundamental Right of a citizen is violated, that person has the right to directly approach the Supreme Court for the enforcement of his rights and the Court can issue the appropriate Writ for enforcing such right.
The power to issue Writs are also provided to the High Courts of India under Article 226. While citizens can approach the Supreme Court only when his Fundamental Right is infringed, the citizens also have the right to approach the High Court for the issue of Writs in other matters in which the fundamental rights are not violated. For e.g. in the case of Smt. Imtiaz Bano vs Masood Ahmad Jafri And Ors. a mother had filed a writ petition for habeas corpus under Article 226 to get custody of her 2 children. The High Court allowed the petition and the writ was issued in her favour. Thus, the scope of the power to issue Writs is wider in the case of High Courts as compared to the Supreme Court.
Illustration: A is an Indian citizen whose Fundamental Right has been violated. Here A has the Right to either approach the Supreme Court or the High Court for enforcing his right. But if there is a violation of A’s right which is not a Fundamental Right then, he only has the right to approach the High Court under Article 226.
Therefore, a citizen has the right to approach either the Supreme Court or the High Court for issue of writs but if he chooses to approach any of the Court and his suit is dismissed by the court, the citizen cannot file the same suit in the other Court because in India, the principle of res judicata is being followed which means that a second case cannot be filed for the same cause of action. But if a person files the case in the High Court and the High Court does not decide in his favour, he has the right to appeal against the decision in the Supreme Court.
Illustration: A files a suit under Article 226 in the High Court and the Court accepts his suit. After the proceedings of the case are concluded, the High Court ruled in favour of the defendant. Here A has the Right to appeal in the Supreme Court against the decision of the High Court. But if the High Court had rejected the suit filed by A, then he does not have the right to appeal in the Supreme Court.
Types of Writs
The Indian Constitution provides 5 types of writs which can be issued by the Courts. They are:
- Habeas Corpus
- Quo Warranto
The Writ of Habeas Corpus is issued by the Courts in those cases where a person is illegally detained. Habeas Corpus means ‘to have the body’ and it is one of the most effective remedies available to a person detained.
By this Writ, the Court commands the person or authority who has detained or restrained another person to present such person before the Court. The Court requires the detaining person to provide the grounds on which the person has been detained and if he fails to provide a valid ground, the person who has been detained will be released by the Court immediately.
Illustration: A is wrongfully detained by B, a police officer. A writes to the High Court regarding the same. The High Court summons B with A and asks the grounds for detaining A. If B fails to provide a valid ground or justification for A’s detention, A will be free to go.
This Writ is very important for the personal liberty of the citizens because if this Writ is not provided by the Constitution a person can be unlawfully restrained or detained by any authority and it will be a clear violation of the personal liberty of the citizens.
Even though the purpose this Writ is to prevent a person from being detained but it will be applicable only when the detention or restraint is unlawful. If the Court finds the grounds for detaining to be justified then this Writ cannot be issued. Also, if the Court orders the detention of a person then it does not amount to unlawful detention and this Writ cannot be issued.
This Writ can be applied not only by the person who is detained but it can also be done by some other person on behalf of the detained person.
Rules regarding the Writ of Habeas Corpus
The following are the rules related to the writ of Habeas Corpus:
- The applicant should be in custody of another
- Usually, the detained person and his family members are allowed to file an application for habeas corpus but the court has also allowed such application by strangers if it is done in public interest.
- The manner prescribed for filing this writ is not necessary so both formal and informal applications in respect of the writ is accepted by the Courts. For e.g. a writ application can also be made by postcard. In the case of Sunil Batra v. Delhi Administration, the Supreme Court had accepted the application made through a letter by a co-convict (a stranger) due to the inhuman treatment of prisoners. In this case, the letter was accepted as an application and the writ of Habeas Corpus was issued.
- A person cannot make the application for the Writ successively to different judges of the same court. Thus, if an application is rejected by one judge, the same application cannot be made to another judge of the same court and if it is done, such an application will be rejected because of the principle of res judicata.
- This Writ will apply in case of an arrest made by the police when all the formalities and procedures which are required to be followed are not followed. For example – the requirement of presenting the arrested person before a magistrate or the officer in charge of the police station. [Section 56 of CrPC]
Liberal Approach of the Court
In the cases of Habeas Corpus, the Courts have recognised the existing socio-economic conditions in the country and the fact that still, many people are illiterate and poor. Thus, the Courts do not reject the application made by the petitioner on the grounds that he has failed to show the proper ground on which he has challenged the detention.
Mandamus is another important Writ which is provided for by the Indian Constitution. In the Writ of Mandamus, the superior courts order the Inferior Courts to do an act or to abstain from doing an act. This order can also be given to an Inferior Tribunal, Board, Corporation or any other type of administrative authority.
In India, the Supreme Court is the apex court, therefore it has the power to issue the Writ of Mandamus even against the High Court even though the High Courts have also been provided with the power to issue such Writs under Article 226. So, a High Court can issue this Writ under Article 226 only to the Inferior Courts such as the trial court of a district.
This Writ is useful for enforcing the duty which is required to be done by law or by the office which a person holds. For e.g. the Judge of the Court has a duty to follow the principles of natural justice and if the Judge fails to do so, a Writ can be issued by the Superior Court to observe the fulfillment of this duty.
One of the most important points about the Writ of Mandamus is that it cannot be issued against a private person and therefore only the State or the people who hold any office which falls in the category of a public office can be compelled to do or to abstain from doing an act.
Illustration: A is a public servant who has a duty towards B which he has to fulfil according to the law but he doesn’t fulfil the duty. B is aggrieved by this non-performance and therefore approaches the High Court for demanding the fulfilment of the duty by A. Here the High Court on being satisfied that the case of B is bona fide and there is a duty which should be fulfilled, will issue the Writ of Mandamus and A will be bound to fulfil the duty he has avoided until now. But if A was a businessman who had some duty towards B but he fails to perform it. In such a case A cannot approach the Court for Mandamus because this Writ cannot be issued against a private person.
Grounds for Mandamus
This Writ can be issued by the Courts on the following grounds:
- The petitioner has a right recognized by law. The whole purpose of this Writ is to enforce the rights of the citizens but if there is no right which accrues to a plaintiff, he cannot approach the court to issue the Writ of Mandamus.
- The right of the petitioner has been infringed. Having a right does not automatically give ground for issuing the Writs because any person will approach the court without having any cause of action. Thus only when a right is violated, the Writ can be issued by the court.
- The petitioner has demanded the authority to perform their duty but there has been non-performance of such duty. The Writ is issued to compel the authority to do the act which they are required to do by law or by the post they are holding thus it is an essential ground for Mandamus.
- The last essential ground for Mandamus is the absence of an effective alternative remedy which can be resorted to by the petitioner to enforce the duty of the authority.
- The petitioner has to show to the Court that a duty is owed to him by the authority and such authority has not performed their duty. This Writ can be issued against all the administrative actions which are unlawful in nature.
- The authority has many duties, some of which are mandatory and while some are left at their discretion to be performed. Thus, if an authority does not perform their mandatory duty, the Writ of Mandamus will be issued by the Court. But in cases of discretionary duties, the writ cannot be issued but the authority still has to act in good faith while deciding whether the discretionary duty should be performed or not.
In the case of Vijaya Mehta v. State of Rajasthan, a petition was filed in the High Court for compelling the State to perform its duty of appointing a commission to look into the climate change and floods in the State. It was held by the Court that the State Government would have to appoint a commission only when a resolution was passed by the Legislature, moreover, it was a discretionary duty and not a mandatory duty, so the Writ of Mandamus was not issued in this case.
In the case of Bhopal Sugar Industries Ltd. v. Income Tax Officer, Bhopal, the Income Tax Appellate Tribunal had given clear directions to the respondent Income Tax Officer by its final order. The Income Tax Officer had still refused to carry out the directions given by the Tribunal. It was held by the Supreme Court that the Income Tax officer had a mandatory duty to fulfill the directions given by the Tribunal and non-performance of which amounted to grave injustice. Thus, the Writ of Mandamus was issued to direct the officer to carry out the directions of the Tribunal.
When is Mandamus not allowed?
The Writ of Mandamus is a discretionary power of the Court and is not a right which can be enforced by the petitioner therefore in many cases this Writ can be refused by the Courts.
The Courts can refuse to issue these Writs in the following cases:
Where the right of the petitioner has lapsed
The duty has already been fulfilled by the authority against which such a Writ is sought to be issued and therefore issuing the Writ would amount to nothing in such a situation.
Who can apply for this Writ?
Usually, the person whose right is infringed is allowed to apply for the Writs of Mandamus but after the Supreme Court adopted a liberal view and the advent of Public Interest Litigation in India, a public-spirited citizen can also apply for the issuing of the Writ of Mandamus on other people’s behalf.
In order to issue a Writ of Mandamus the following considerations are of great importance:
The duty which is sought to be enforced is a public duty.
Such duty is enforceable by law.
In the case of Ratlam Municipality v. Vardhi Chand, it was held that Ratlam Municipality was a statutory body which owed duties to the public such as removing night soil and rubbish, removing any public nuisance etc. and therefore the Writ of Mandamus was issued by the Court to enforce these duties by the Municipality.
Thus, an application for Mandamus can be made not only by the affected people but also by those who want to enforce these Writs on behalf of others in the public interest.
Certiorari is a different type of writ when compared with other Writs. This Writ is corrective in nature which means the purpose of this Writ is to correct an error which is apparent on the records.
Certiorari is a Writ which is issued by a superior court to an inferior court. This can be issued when the superior court wants to decide a matter in the case itself or if there is an excess of jurisdiction by the inferior court. This Writ can also be issued when there is a fundamental error in the procedure followed by the inferior court or if there is a violation of the principles of natural justice.
If the superior court finds out that there has been a violation of natural justice or a fundamental error on the procedure adopted, it can quash the order of that inferior court.
Illustration: There is a case in the District Court and the court has no jurisdiction to decide such cases. Still, the District Court Judge tries the case and gives his decision and an application is made by A (the aggrieved party by such decision) to the High Court. Hereby the power of issuing Writs, the High Court will issue a Writ of Certiorari on the order of the District Court, as a result, the order of the District Court will be quashed.
Grounds for Certiorari
The Writ of Certiorari can be issued on the following grounds:.
- On the grounds of jurisdiction, a Writ can be issued by the superior court. Whenever an inferior oversteps its jurisdiction or abuses the jurisdiction provided to it or when there is an absence of jurisdiction of the inferior court, the Writ will be issued to quash the order made by the inferior court.
- The violation of principles of natural justice is another ground on which the Writ of Certiorari can be issued by the court. The principles of natural justice form an important part of the Indian Constitution as these principles have been recognized by the Constitution such as the principle of Audi alterum partem which means hearing of both the sides is an essential part of the Indian Constitution.
- When there is an error apparent on the record, it becomes a valid ground for issuing the Writ of Certiorari. This Writ can be issued when the error is based on a clear disregard to the provisions of law and not merely because the judgement was wrong.
Important Conditions for Certiorari
For the Writ of Certiorari the following conditions should be fulfilled:
- The body or person has legal authority.
- Such authority is related to determining those questions which affect the rights of the people.
- Such a body or person has a duty to act judicially in doing its functions.
- Such a person or body has acted in excess of their jurisdiction or legal authority.
When all these conditions are fulfilled, only then a Writ of Certiorari can be issued against the body or person who has acted in excess of their jurisdiction.
Rule of Proceeding in Personam
In the cases related to the Writ of Certiorari, the person who is aggrieved by the wrongful exercise of jurisdiction by the court should bring the petition before the superior court. In this regard, this Writ is different from the Writ of Habeas Corpus as Habeas Corpus can be applied for even by a non-aggrieved person and the courts will accept such an application.
The proceeding in case of Certiorari is an original proceeding before the superior court which can be initiated by a petitioner before he High Court under Article 226 and before the Supreme Court under Article 32 of the Indian Constitution.
Against whom this Writ lies?
The Writ of Certiorari lies against those bodies which are judicial or quasi-judicial in nature. Thus, when anybody or a person is performing a judicial act, their acts can be subjected to the Writ of Certiorari.
It also means that the scope of the application of this Writ is limited to only the judicial bodies or the bodies which perform judicial functions and it will not extend to the Central, State or Local Governments because their functions are administrative in nature and not judicial.
The Writ of Quo Warranto is issued by the courts against a private person when he assumes an office on which he has no right. Quo Warranto literally means ‘by what authority’ and it is an effective measure to prevent people from taking over public offices.
Illustration: A who is a private citizen and has no qualifications for the post of sub-inspector assumes such office. Here a Writ of Quo Warranto can be issued against A to call into question his authority on which he has taken the control of the office of sub-inspector.
The power to issue this Writ is discretionary on the courts and therefore nobody can demand that the court is bound to issue this writ.
Conditions for issuing Quo Warranto
The Writ can be issued only when these conditions are fulfilled:
- The office which has been wrongfully assumed by the private person is a public office.
- The office was created by the Constitution or by any other statute.
- The nature of the duties which arises from this office is public.
- The term of the office must be of a permanent nature and it should not be terminable at any person or authority’s pleasure.
- The person against whom the Writ is sought to be issued is in actual possession of the office and is using such office.
- This Writ can also be issued in those cases where a person was entitled to hold the office earlier but after getting disqualified he is still in possession of the office.
- Thus in cases where the office is of private nature, this Writ cannot be issued by the Court. This view was held by the court in the case of Niranjan Kumar Goenka v. The University of Bihar, Muzzfarpur, in which the court observed that the Writ of Quo Warranto cannot be issued against a person who is not holding a public office.
In the case of Jamalpur Arya Samaj Sabha v. Dr. D Rama, an application for the Writ of Quo Warranto was made by the petitioner in the Patna High Court against the Working Committee of Bihar Raj Arya Samaj Pratinidhi Sabha which was a private body. The court refused to issue the Writ because it was not a public office.
The last Writ which can be issued under the Constitution is the Writ of Prohibition. This Writ is not issued often and is an extraordinary remedy which a Superior Court issues to an inferior court or tribunal for stopping them from deciding a case because these courts do not have the jurisdiction.
If the court or tribunals does not have jurisdiction and it still decides the case, it will be an invalid judgement because for an act to be legal it should have the sanction of law. For e.g., if a District Court is hearing an appeal against the judgement of the High Court, such an act is bound to be prohibited because the District Court does not have the power to hear such an appeal. So, a Writ of Prohibition will be issued against such an act of District Court.
Rules of Writ of Prohibition
In cases of Writ of Prohibition the following rules are observed:
The Writ can be issued only when:
- The inferior court or tribunal has overstepped its jurisdiction
- The court or tribunal is acting against the provisions of law
- In cases where the court is partly acting within its jurisdiction and partly outside it, the Writ will be issued against the act which is partly outside its jurisdiction.
- The fact that the applicant has a right to appeal against the order of the inferior court will not be a bar to issue this Writ.
- This Writ can be issued only when the proceedings are pending in the inferior court and not when an order has already been passed by that court. Thus, this Writ is a preemptive remedy which is exercised by the superior court to prevent the inferior court from acting outside its jurisdiction.
- The Writ of Prohibition can be issued only against a judicial or a quasi-judicial body and it cannot be issued against any administrative body.
Difference between Prohibition and Certiorari
Both the Writs Certiorari and Prohibition appear to be the same but there is one major difference between the two. In the Writ of Prohibition, the superior court issues the writ before the final order is passed by the inferior court and therefore this is a preventive remedy, while in Writ of Certiorari the superior court issues the Writ after the inferior court has made the final order. Thus the Writ of Certiorari is a corrective remedy by which the order of the inferior court is quashed.
The Constitution of India has provided the power to issue Writs to the Supreme Court under Article 32 and to High Courts under Article 226. These Writs are a command which is given by the Courts for the performance of an act to the public authority which has a duty to perform it.
There are five types of Writs which are Habeas Corpus, Mandamus, Certiorari, Quo Warranto and Prohibition and all these writs are an effective method of enforcing the rights of the people and to compel the authorities to fulfil the duties which are bound to perform under the law.
Of these Writs, the scope of Mandamus is the widest. While other Writs are issued in certain circumstances only, such as when a person is illegally detained (Habeas Corpus) or when there is overstepping of jurisdiction by a court (Certiorari), Mandamus can be issued in those cases where there is on the performance of duty the authority.
So, all these Writs have played a key role in enforcing the rights of the people and have also improved the scope of the power judicial review of courts.