NOTES

WRITS UNDER THE INDIAN CONSTITUTION

Introduction:

In common law, Writ is a formal written order issued by a body with administrative or judicial jurisdiction.

In India writs provides the citizen as well as person a right to directly approach the Court   in situations wherein their rights are infringed or are on the verge of infringement.

It should be taken into consideration that the concept of writ is alone wherein the High Courts enjoy more jurisdiction as compared to the Supreme Court.

 

Five Type of Writs:

There are five types of writs in the Indian Constitution stated in Article 32 for Supreme Court and Article 226 for High Court. They are

  1. Habeas Corpus
  2. Quo-Warranto
  3. Mandamus
  4. Prohibition
  5. Certiorari
     
  1. Habeas Corpus: (to have the body)

The first writ is of Habeas Corpus. It emanated from the 39th clause of Magna Carta, which was signed and authorized by King John in the year 1215. The term ‘Habeas Corpus’ is a Latin term which means ‘to have the body’. The main purpose of this writ was to provide security to a person who has been illegally detained. Within the terms of this writ unlawful or illegal detention shall take place if-

  • If the detention is not as per the law of the territory or if the procedures are not duly followed.
  • Laws of land are infringed while detaining a person.
  • It surpasses the authority which was entrusted by Legislature.

The Indian Constitution under Article 20, provides protection to a person in respect of conviction for offences and under Article 21 protects the personal life and liberty of a person. Whereas under Article 22, the Constitution provides protection against arrest and detention and it also lays the rights of detainee. Based on these articles the Court shall analyse the authenticity of the detention of a person.

 

Case law- Sheela Barse vs State of Maharashtra

  • Sheela Barse a journalist by profession had filed a writ petition on the pretext that she had interviewed 15 women prisoners in Bombay on 11/05/1982.
  • She stated that during the interview she found out that two prisoners were assaulted within the jail premises.
  • Based on her allegations the Court had ordered and directed Dr (Miss) A.R.Desai, Director of college of Social Work to investigate into the matter and submit a report.
  • The report submitted by Dr (Miss) A.R.Desai proved that the allegations were true.
  • Subsequently, the Court ordered for certain safety measures that had to be followed for protecting the women prisoners and also the officials responsible for the carelessness and inaccuracy were punished.

 

  1. Qua warranto: (by what authority)

The word ‘Qua warranto’ is derived from a Latin term which means ‘by what authority’. In simpler terms this writ questions the authority who lays a down a particular decision. In legal aspect this writ is issued to a person who holds a public office. The person who enjoys the position of a public officer is answerable to the Court for his/her acts. The public officer has to satisfy the Court that he/she is legally entitled to hold the office. This writ does not lay emphasis on the concept of ‘locus standi’ and any person can approach the Court under this writ. It is not a pre-condition the sufferer c an alone file this writ.

This writ can be filed under various circumstances such as:

  • test the validity of an election of a person in a university syndicate
  • test the validity of Nomination of members to a Legislative Council by Governor
  • to examine the appointment of Chief Minister, Chief Justice, Advocate and Attorney General, University Teachers etc.

Conditions for Issue of Quo Warranto

  • The offence must be substantive in nature.
  • The person under question must legally hold a public office which is established by or under Constitution.
  • There must be a contravention in constitution in appointing the person for that office.

Case law- Purushottam Lal vs State of Rajasthan 

  •  In this case this writ was filed the Rajasthan’s Chief Minister stating that he was not legally elected to the post and he was holding the post illegally.
  • Thus the office of the Chief Minister was in question with regards to its validity.
  • However, the petition was rejected in the Court on the grounds that, if the CM holds office without authority, then it is breach of constitutional provision.
  • The Court further stated that the office of the Chief Minister is created by the Constitutional Provision and based on this the member of assembly is not a purpose of office.
  • The Court was of the view that the objecting the election of the Chief Minister cannot be included in this writ and the same can be done by filing an election petition.
  • This decision clearly stated that if the person with no or improper qualification was appointed as a Chief Minister by the Governor under Article 164 of the Indian Constitution, the decision cannot be challenged.
  • Because the Governor enjoys discretionary powers under Article 361 and the appointed can be deserted by the High Court if it thinks fit.
  • In the case ‘Y.S.Raja Sekar Reddy vs Nara Chandra Babu Naidu’ a quo warranto cannot be issued for dismissing the Chief Minister of a state on the reason of non-performance of his constitutional duty.

 

  1. Mandamus- (We command)

Mandamus means ‘we command’. This writ is in the form of an order from the Supreme Court or High Court to the lower court i.e.

  • Lower or Subordinate courts
  • Tribunal.
  • Public Authority.

Under this writ the higher Judicial courts orders their subordinates to perform a public or a statutory duty.

This writ is more in the nature of a command which is issued to any Government, subordinate court or corporation or public authority in case there is any failure on their part to the work effectively and efficiently.

 

 

Limitations for Mandamus:

Supreme Court cannot issue writs to

  • President or State Governors
  • Chief Justice of High Courts
  • Against any private individual
  • Duties on voluntary interest
  • State government to appoint a commission for any enquiry in the state 
  • Delegated legislative to make further rules in statutory provisions
  • To enforce the payment of money of a person in a civil liability
  • Directing the government to make reservations (Article 16[4])

Case law- Tata Cellular vs UOI 

  • The Apex Court stated that the Judiciary cannot intervene in the Government’s freedom of contract, invitation of tenders and refusal of tenders.
  • It also held that the Courts are eligible to intervene if the conduct of the Government was induced by illegal, unreasonable or unfair activities.

 

  1. Certiorari – (To Be Certified):

The writ of Certiorari is issued by a Superior Court to its lower or inferior courts or to any other public authority. By virtue of this writ of the Superior Courts are entitled to receive the records of any proceeding for reviewing the same.

Generally, this writ is issued to revoke the order passed by the lower courts or other quasi-judicial bodies.

Conditions for Issue of Writ of Certiorari:

  • There must be a court, tribunal or an authorised person having a legal right to act judicially.
  • Such court, tribunal or officer must have acted or passed an order without jurisdiction or in excess of judicial authority.
  • The order in question was against the principle of Natural Justice.
  • The order contains an error of judgement.
  • The order is against the constitution or is in contravention with the fundamental rights.
     

 

  1. Prohibition- (to prohibit)

This writ is issued by the Superior Court to the Inferior Court with a view to disallow or forbid the orders that were passed by them. The major difference between the writ of certiorari and prohibition are as follows:

  • Certiorari – issued to quash a decision after completion of proceedings.
  • Prohibition – issued before the completion of proceedings.

 

Conclusion:

The writ jurisdiction of the Indian Legal System is a blessing to its democracy. The writs not only allow the citizen to approach the Judiciary directly, but it also gives an opportunity to the persons as well under certain circumstances. It sort of helps the victim or persons acting on behalf of the victim to avail speedy recovery. Thus, it is necessary the concept of writs should be duly and diligently followed, so that the faith of people in its legal system prevails.