Writs Under the Indian Constitution: By Article 32 of the Constitution of India, the Supreme Court has the authority to issue writs for the implementation of all the fundamental rights bestowed by Part III of the Indian Constitution. As a result, the ability to issue writs is principally intended to ensure that every person has access to the Right to Constitutional Remedies.
Since we all know, the right to constitutional remedies is a safeguard of all of the other fundamental rights given to Indian citizens. When a citizen’s Fundamental Right is infringed, he or she has the right to approach the Supreme Court instantaneously to seek enforcement of his or her rights, and thus the Court may issue the relevant Writs Under the Indian Constitution to do so.
What Are the Writs Under the Indian Constitution?
Habeas Corpus, Mandamus, Certiorari, Quo Warranto, and Prohibition are the writs provided by the Constitution of India.
Article 226 also gives the High Courts of India the authority to grant Writs. While people can only go to the Supreme Court if their fundamental rights have been violated, they still have the right to go to the High Court for Writs in cases when their fundamental rights have not been breached. Article 32 of the Constitution of India limits the authority to issue the writ to the enforcement of fundamental rights. Article 226 of the Constitutional Provisions, on the other hand, allows the writ to be issued for the preservation of Fundamental Rights as well as any other reason.
Habeas Corpus is Latin for “have the body.” It is a writ of prerogative. This is a release order. It gives a person who has been unfairly held or confined a recourse. A prerogative is a right or privilege reserved for a certain person or group. The goal of Habeas Corpus is to free the individual, not to penalize the official who is guilty of illegal incarceration or injury.
The individual or authority who’s already detained or confined another person must produce that person to the Court under the terms of this Writ. The detaining person is required by the Court to disclose the reasons for their detention. When he fails, the court will instantly release the individual who has been imprisoned. The court concluded in Smt. Jayamma vs. State of Karnataka that the Writ of Habeas Corpus could be utilized against both the state and the individual.
Even in an emergency case, the Writ of Habeas Corpus can be used to enforce fundamental rights protected by Articles 20 and 21 of the Constitution. The notion of constructive res judicata does not apply to wrongful detention and therefore does not preclude a future petition by Article 32 of the Constitution Of India, which is known as the Writ of Habeas Corpus.
A person can indeed be wrongfully restricted or detained by whatever authority if such a Writ isn’t really provided by the Constitution. It will be an obvious infringement of people’ personal freedoms.
Sunil Batra v. Delhi Administration (1980 AIR 1579) was a case in which a co-convict sent a petition to the Supreme Court against the mistreatment of the convicts. The Supreme Court took up the letter and granted a writ of habeas corpus, adding that the writ could be used to protect the prisoner not just against improper arrest but also from any abuse or inhumane treatment by the detention authority.
When can Habeas Corpus be not issued?
In the following circumstances, Habeas Corpus cannot be issued:
- When it is legal to detain someone.
- When a court or legislature is being sued for contempt.
- A competent court is in charge of detention.
- The court has no jurisdiction over detention.
Mandamus is a Latin term that refers to “We Command.” Mandamus is merely an order given by the Supreme Court or the High Court. Such orders are to compel a subordinate court, tribunal, or government agency to undertake a public or statutory obligation. Whenever a government, court, company, or public authority is required to perform a public obligation but fails to do it anyway, the Supreme Court or High Court issues a writ of command.
Because the Supreme Court is India’s highest court, it has the authority to issue this writ against even the High Court, despite the fact that the High Courts have the authority to issue similar Writs under Article 226. As a result, an HC could only issue this Writ to the Inferior Court under Article 226.
A petition was filed in the High Court in the matter of Vijaya Mehta v. State of Rajasthan, requesting that the State execute its obligation of forming a commission to investigate climate crisis and floods in the state. The Court found that perhaps the State Government could only appoint a commission if the Legislature enacted a resolution, and that being said it has been a discretionary rather than a required obligation, hence no Writ of Mandamus was granted in this instance.
The Income Tax Appellate Tribunal has provided explicit directives to the respondent Income Tax Officer in the matter of Bhopal Sugar Industries Ltd. v. Income Tax Officer, Bhopal. The Income Tax Officer had continued to refuse to follow the Tribunal’s instructions. The Supreme Court ruled that perhaps the Income Tax officer seemed to have a mandatory responsibility to follow the Tribunal’s directives, and that failure to do so amounted to severe injustice. As a result, the Writ of Mandamus was issued, directing the officer to carry out the Tribunal’s instructions.
As in case of Ratlam Municipality v. Vardhi Chand, the Court held that the Municipality was a statutory body that owed the public responsibilities such as trying to remove night soil and garbage, attempting to remove any public nuisance, and so a Writ of Mandamus was issued by the Court to compel the Municipality to perform these duties. As a result, a Mandamus application can be filed not only by individuals who are impacted, but also by those who desire to enforce such Writs on behalf of others in the public good.
The courts have the authority to refuse to grant these Writs in the following circumstances:
- When the petitioner’s right to petition has expired.
- The authority against whom the Writ is requested has already performed its job, thus issuing the Writ would be pointless in this scenario.
When contrasted to other Writs, Certiorari is a unique form of Writ. This Writ is remedial in nature, which implies it is intended to fix an error that has been discovered in the records.
Certiorari simply means “to certify.” It is issued by the Supreme Court to any tribunal or a lower court for sending a case to it or to any other higher authority for consideration. The Supreme Court or any High Court can issue a Writ of Certiorari to overturn an order originally made by a lower court.
The Supreme Court or the High Court may issue a writ of certiorari to a lower court or tribunal in the given situations:
- Whenever a subordinate court rules without authority or assumes authority where authority does not exist,
- Whenever a subordinate court operates outside of its authority by overstepping or crossing jurisdictional boundaries.
- Whenever a subordinate court performs in defiance of the law or procedural procedures.
- Whenever a subordinate court behaves in breach of natural justice principles and that there is no process to follow.
This Writ is used against:
The Writ of Certiorari is used to overturn decisions made by entities that are judicial or quasi-judicial in essence. As a result, a judicial act performed by anybody or a person might be susceptible to the Writ of Certiorari.
It also indicates that the extent of this Writ’s application is confined to only judicial organizations or bodies that exercise judicial activities, not the Central, State, or Local Governments, since their responsibilities are administrative rather than judicial.
‘To forbid’ – is the exact definition of the word ‘prohibition.’ A higher-ranking court files a Prohibition writ against a lower-ranking court to prohibit the other from surpassing its authority or usurping jurisdiction that it does not have. Inactivity is directed by it. A writ of prohibition is an order issued by a High Court or the Supreme Court preventing a lesser court or quasi-judicial body from continuing proceedings in a matter over which it has no jurisdiction. The procedures at the lower court, for example, come to a halt after the issuance of this writ.
Ordinarily, a prohibition is issued when a lower court or tribunal:
- Starts to act beyond or beyond the scope of his or her authority.
- Begins to act in contravention of natural justice principles.
- Acts in accordance with legislation that is actually ultra vires or unlawful.
- Continues to act in a manner that is in violation of basic rights.
Prohibition could only be imposed against judicial and quasi-judicial bodies in India, according to the facts. It cannot be used against government agencies, legislative bodies, or private people or entities. It is granted when a subordinate court or tribunal acts lacking or in excess of authority, or when natural justice norms or fundamental rights are violated. It can also be given whenever a lower court acts in violation of a legislation that is unconstitutional in its own right.
Prohibition vs. Certiorari: What’s the Difference?
Although Writs Certiorari and Prohibition seems to be about the same, there’s really one significant distinction. The superior court issues the Writ of Prohibition before the lesser court issues the final ruling, making it a preventative remedy, whereas the superior court rules the Writ of Certiorari after the inferior court has issued the final order, making it a corrective remedy. As a result, the Writ of Certiorari is a remedial remedy that overturns a lower court’s decision.
The writ of ‘Quo-Warranto’ literally means ‘By what authority or warrant.’ This writ is issued by the Supreme Court or the High Court to prohibit a person from illegally usurping a public office. The court investigates the legitimacy of a person’s claim to a public office using this writ. The writ demands the individual in question to clarify to the Court how he obtained the position. The Court may order a person who has commandeered a public office not to carry out certain actions in the office or declare the office empty. If a person occupies an office beyond reaching retirement age, the High Court may impose a writ of quo-warranto.
The writ requires the bearer of a public office to demonstrate to the court what power he has to occupy the position in issue. When he’s not entitled to that same position, the court may order him to stop functioning in it and declare the position vacant. The writ procedures not only provide a tool for preventing the executive from making illegal appointments to public offices, but they also safeguard the public from being denied access to public offices to which it is entitled.
The petitioner filed a Writ of Quo Warranto motion at the Patna High Court against the Working Committee of Bihar Raj Arya Samaj Pratinidhi Sabha, which was a private body, in the case of Jamalpur Arya Samaj Sabha v. Dr. D Rama. Since it wasn’t a public position, the court declined to grant the Writ.
A person can get a writ of Quo-Warranto if he can convince the court that:
1. The office in issue is a public office.
2. It is held by someone who does not have legal power. A writ of Quo Warranto is just not issued in the case of a private office.
Article 32 of the Indian Constitution gives the Supreme Court the power to issue Writs, whereas Article 226 gives the power to High Courts. These Writs are orders issued by the courts for said administration of the act by a public authority that is obligated to do so. All of these writs are useful tools for upholding people’s rights and compelling government officials to carry out their legal responsibilities. Mandamus has the broadest reach of any of these Writs. Mandamus has the broadest reach of any of these Writs. While other Writs are only granted in certain circumstances, like when a person is wrongfully held (Habeas Corpus) or when a court oversteps its jurisdiction (Certiorari), Mandamus could be issued in any matter where the authority is on the execution of duty. As a result, all of these Writs have served an important role in upholding people’s rights and expanding the extent of judicial review power.
- Durga Das Basu, Shorter constitution of India (Gurgaon: LexisNexis Butterworths Wadhwa Nagpur, 2010).
- Jain, Mahabir Prashad. Indian constitutional law. 4th ed. Bombay: N.M. Tripathi, 1987.