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What are the different types of Writs?

14 min read

By Meher Sunil Dabrai

Introduction

The Appellate courts in the country are also considered to be the guardians of justice in the country. The Supreme Court and High Courts can exercise the power envisaged in them by the Constitution by issuing writs.

A Writ means the command of the Court to another person or lower court or the Tribunal that has to act or abstain from acting in a certain way. Thus, writs are an essential part in the process of administration of justice in the country.

Article 32 and Article 226 of the Constitution are parallel provisions for the writ jurisdiction of the Supreme Court and the High Courts of India, respectively.

Article 32 has been incorporated under the Constitution as a remedy against the violation of a fundamental right. Apart from that, the Article by itself is also a fundamental right under the Constitution.

Article 226 is a constitutional provision but not a fundamental right. The scope of Article 226 is wider than that of Article 32. Article 226 is considered to be a constitutional provision and not a fundamental right.

Article 226 is not just limited to writs regarding the violation of fundamental rights but the basic objective of this article is to ensure justice wherever the miscarriage of justice is manifest.

Beyond the scope of Article 32 and Article 226, writs are classified into 5 different types. The types of writs are as follows:

Writ of Habeas Corpus

The term ‘Habeas Corpus’ is a Latin term meaning ‘let us have the body’. The writ of Habeas Corpus has also been referred to as the great writ. It is issued in those cases where a person has been illegally detained.

When a person is illegally detained by any lawful authority, he has the right to move the court for the issue of Habeas Corpus. In such a case, the court can order that the person be produced before the court by the detaining authority.

The principle of Habeas Corpus ensured that the person should not be detained if there is no sufficient cause or evidence against him.

This remedy can be sought by the prisoner himself or by any other person who may want to come to his aid including but not limited to the friends and relatives of the prisoner. This concept originated in the English legal system and was later adopted by many other nations as well.

The writ can be filed only if the power of detention has been exercised mala fide by the detaining authority and has been made due to ulterior motives. The general rule under Habeas Corpus is that the application can be made by the person who has been illegally detained or any other person who might want to come to the aid of the prisoner.

The writ only ensures that a person shall not be illegally detained but does not safeguard his rights to a fair trial. Therefore, Habeas Corpus is only said to be a procedural remedy. If the authorities have sufficient reason and evidence justifying the detention of the person then the high court does not grant Habeas Corpus.

The writ is applicable in cases where the all the prescribed formalities under Section 56 of the Criminal Procedure Code for the arrest are not followed correctly.

  • Sunil Bhatra Vs. Delhi Administration[1]

Habeas Corpus is a flexible remedy for people who have been held in confinement.

It was held that the writ can not only be issued to release a person from illegal detention but also for releasing the person from inhumane and barbarous treatment even in jail.

The writ is not only useful for people in confinement ass it has also been framed for the protection of the liberty of the people. In the absence of Habeas Corpus, any authority could misuse its power and unlawfully restrain any person in wrongful confinement which is a clear violation of the personal liberty of the citizens.

  • Kanu Sanyal Vs. District Magistrate[2]

Habeas Corpus was essentially a procedural writ dealing with the machinery of justice.

In this matter, the court observed that the object of this writ is to secure the release of the person who is illegally deprived of his liberty.

The main element of this writ and the concept of it is that the court was the immediate determination of the right of the freedom of the applicant and his release when the detention of a person is unlawful. The Court held that the writ of habeas corpus is a procedural writ that deals with the machinery of justice.

  • District Magistrate of Jabalpur Vs. Shiv Kant Shukla[3]

Popularly known as the Habeas Corpus case

This case was before the constitutional bench of the Supreme Court which held that in view of the emergency under the Presidential Order of 27th June 1975, nobody has a locus standi to submit to the High Court any written petition pursuant to Article 226 fr habeas corpus or any other writ or order or instruction questing the lawfulness of an order of detention of the ground that the order is not in compliance with or in keeping with the Act or is unconstitutional vitiated.

  • B. Ramachandra Rao Vs State of Orissa[4]

Habeas Corpus cannot be granted where a person has been sent to prison by a competent court.

In this matter, the Supreme Court held that a writ of Habeas Corpus cannot be granted where a person has been sentenced to imprisonment or jail custody by a competent court by judicial order of that particular court.

  • Sheela Barse Vs. State of Maharashtra[5]

Another person can file a writ if a detained person is unable to file it.

In this case, the condition of women’s prisons and the assault of female prisoners was brought to the attention of the Supreme Court through a letter and a writ petition highlighting this issue has been filed by a human rights activist.

On investigation, the court found the allegations to be correct. In this case the court held that if a person who has been detained or confined could not file an application for the writ then some other person can file it on his behalf. The court quashed the locus standi approach for habeas corpus writs in this case.

Writ of Mandamus

Mandamus is another important writ that has been provided by the Indian Constitution. The writ of Mandamus empowers the superior courts to do an act or abstain from doing an act. This order can also be given to an Inferior Tribunal, Board or any other type of administrative authority.

In India, the Supreme Court is at the apex and has the power to issue a writ of Mandamus against any other court including the High Court despite the fact that the High Court also has the power to issue a writ of Mandamus under Article 226.

The jurisdiction of the High court to issue mandamus is limited to the lower courts such as the district courts while the Supreme Court has the power to issue mandamus against the High Courts as well.

An important characteristic of a writ of mandamus is that it cannot be issued against any person or individual, but it can only be issued against a person who holds any office which falls under the category of a public office that can be compelled to do or abstain from doing an act.

Most authorities have many duties, some of which are mandatory, and others are left to the discretion to be performed. The authorities are supposed to act in good faith in deciding when the discretionary duty should be performed or not.

  • Vijaya Mehta Vs. State of Rajasthan[6]

Writ of Mandamus cannot be issued for discretionary duties.

In this case, a petition had been filed in the High Court for compelling the state to perform its duty of appointing a commission to look into climate issues and flood in the State.

The court held that the State Government would have to appoint a commission only when a resolution had been passed by the legislature. It was a discretionary duty that they may or may not perform and was not mandatory. It was observed that the writ can be issued only in case of mandatory duties and not for discretionary duties.

  • The Praga Tools Corporation Vs. CV Imanual [7]

Mandamus may lie against a private individual.

The Supreme Court held that a writ of mandamus may lie against a public as well as a private person if it is established that he has colluded with a public authority.

It was observed that the writ can lie against a private person only if there is collusion and cannot be enforced against a private person acting on his own for enforcement of a contract or any other reason.

  • Raman Vs. State of Madras[8]

Mandamus cannot be issued against a private party acting alone

Mandamus cannot lie for the enforcement of contract inter parties. It will lie where the petitioner’s contractual right with the third party interfered with the state. Mandamus will not issue to enforce departmental manuals or instructions not having statutory force which do not give any legal right in favor of the petitioner.

  • E.A. Co-operative Housing Society Vs. Maharashtra[9]

Mandamus can be applied when the authority refuses to have jurisdiction.

The court held that a writ of mandamus can be issued when the government or authority denies to itself the jurisdiction which it definitely has under the law

  • State of West Bengal Vs. Nuruddin[10]

The writ of mandamus is a personal action.

The Supreme Court held that the writ of mandamus is a personal action against any person or authority that has not performed or rightfully performed the duties that have been prescribed to them under the law. The performance of such duties may be considered as the right of the applicants.

Writ of Certiorari

Certiorari is slightly different as compared to the writs mentioned above. It is corrective in nature which means that it is used to correct apparent errors that may appear on records. Certiorari is a writ that is issued by a superior Court to an inferior Court.

This writ can also be issued when there is an error in the procedure that is followed by any inferior court or when there is a violation of the principles of natural justice. In case of such violations or errors in fundamental procedures it can quash the order of the inferior court.

  • Hari Vishnu Vs. Ahmed Ishaque[11]

An error of fact cannot be corrected by certiorari. It only applies in case of error of law.

The Supreme Court held that when an error has been made is an error of law that is evident prima facie on the face of the record and does not require an argument or examination to establish it can be corrected by the writ of certiorari.

The court that issues the writ of certiorari should be one that is acting in supervisory jurisdiction and not in appellate jurisdiction. While exercising supervisory jurisdiction, the court does not have the power to rule over the decision of the lower court on the merits of the facts of the case.

  • Province of Bombay Vs. Khushaldas[12]

Writ of certiorari also lies when a person acts in excess of their judicial authority.

In this case it was held that whenever any person having a legal authority to determine the question affecting the rights of the subjects and having the duty to act judicially more than their legal authority, a writ of certiorari will lie.

The scope of the writ is not merely limited to ministerial acts but also extends to every person who is in a position of authority.

  • Ebrahim Aboobker Vs. Custodian General [13]

No authority can exceed its power.

The court held that any action taken by any authority in excess of its judicial power is considered as invalid. The court said that no authority can exceed the power that has been prescribed to it by the law.

  • State of U.P. Vs Mohd. Nooh[14]

The scope of certiorari.

The court explained the scope of the writ and opined that the writ is issued to a body that is meant to perform judicial or quasi-judicial functions for correcting errors of jurisdiction as when an inferior court or tribunal acts without having jurisdiction or exceeds its jurisdiction or fails to exercise its powers in the right manner.

  • Syed Yakoob Vs. Radhakrishnan[15]

Certiorari applies to error of law but not to error of fact.

The court opined that the error of law which is evident prima facie can be corrected by way of a writ of certiorari but an error of fact cannot be corrected by this writ irrespective of how grave it might be.

Writ of Quo Warranto

The writ is issued by the courts against a private person when he takes charge of an office that he has no right over. The words “Quo warranto” literally mean “by what authority” and that it is an effective measure to prevent people from taking over public offices.

The power to issue the writ is discretionary and therefore nobody can appeal to the court to issue this writ and it cannot be issued unless the courts decide to issue it on their own.

  • Jamalpur Arya Samaj Sabha Vs. Dr. D Rama[16]

The writ of Quo Warranto cannot be issued against a person who is not holding a public office

The application had been made against the Working Committee of Bihar Raj Arya Samaj Pratinidhi Sabha which was a private body. The Patna High court refused to issue the writ because it was a private organization and not a public office.

  • University of Mysore Vs. Govinda Rao[17]

The court can question the authority of a public officer.

In this case, under the writ of quo warranto, the court has the power to call upon the holder of a public office to question his authority over the particular public office in question. If he is not entitled to the office, the court may restrain him from acting in the office and may also declare the office as vacant.

  • Amarendra Vs. Nartendra [18]

The writ lies in respect of a public office and not a private office.

The court has held that the writ lies in respect of a public office and not a private office such as membership of a school or managing committee.

  • Niranjan Kumar Vs University of Bihar[19]

Quo warranto does not lie for private offices.

The court held that the writ of quo warranto cannot be issued against the principle of a private office. The writ can only be issued when the office that it is issued against is a public office.

  • Puranlal vs. PC Ghosh[20]

The writ cannot be issued against a person who has been elected to hold a public office but has not accepted the office.

The court held that the declaration that a person has been elected to a public office or just his appointment to a public office is not sufficient for the issue of quo warranto unless such a person has actually accepted such an office.

Writ of Prohibition

The writ of prohibition is considered to be an extraordinary remedy. It is a remedy wherein a Superior Court issues to an inferior court or tribunal to stop them from deciding a case as these Courts do not have jurisdiction to preside over the present matter.

If the court or tribunal decides a case that is not within its jurisdiction then the decision of the court is considered to be invalid as for an act to be considered legal it needs to have a sanction of law.

The primary issue of this writ is to prevent an inferior court from exceeding its jurisdiction in the cases that are pending before it or that ae acting contrary to the rules of justice.

This writ can be issued only against a judicial or quasi-judicial body but cannot be issued against any administrative body. It is commonly referred to as a “stay order” as the main purpose of this writ is to forbid or stop it.

  • S. Govind Menon Vs. Union of India[21]

Prohibition can be issued in both cases where there is excess jurisdiction and where there is excess jurisdiction.

It is issued by a superior court to an inferior Court to usurp jurisdiction with which it was not originally vested or in other words to compel inferior courts to keep within limits of their jurisdiction. The writ can be issued in cases where there is excess of jurisdiction and also in cases where there is absence of jurisdiction.

  • Subhash Chandra Vs. India[22]

Court martial under the Army Act and prohibition.

In this matter, the Court held that a court- martial constituted under the Army Act has been held subject to prohibition.

  • Hari Vishnu Vs. Syed Ahmed Ishaque [23]

Distinction between writ of prohibition and certiorari.

The judgement of this case lays down the distinction between the writ of prohibition and certiorari and states that when the lower curt gives the decision the petitioner is required to file a certiorari petition as prohibition writs can only be pleaded when judgement has not already been tendered.

  • East India Commercial CO. Ltd. Vs. Collector of Customs[24]

Proceedings can be stayed by prohibition in excess jurisdiction or lack of jurisdiction.

In the given case, the Supreme Court held that the writ of prohibition is an order that directs inferior courts or tribunals to sotp from proceeding therein on the grounds that the proceedings are taking place by way of excess jurisdiction or lack of jurisdiction.

  • Mannusamappa and Sons Vs. Custodian Evacuee Property[25]

Prohibition can be issued on a property.

The custodian of the property has accepted the petitioners as tenants and after accepting rent for five months, went on to proceed against them as if they were in possession on permission. Prohibition was granted to prevent them from proceeding further.

Conclusion

The power to issue writs has been vested under Article 32 and Article 226 of the Constitution of India. These Writs are a command which is given by the court for the performance of an act to the public authority that has been given the duty to perform them.

Of all the writs mentioned hereinabove, the scope of mandamus is the widest. While the other writs are issued only under certain circumstances such as when a person has been illegally detained under Habeas Corpus or when there is overstepping of jurisdiction by a court under certiorari.

Mandamus can be issued in those cases where there is on the performance of duty of the authority.

These writs have played an important role in enforcing these rights of the people and have also improved the scope of the power of judicial review of the courts.

References

  1. Sunil Bhatra Vs. Delhi Administration 1980 AIR 1579
  2. Kanu Sanyal Vs. District Magistrate AIR 1973 SC 2684
  3. District Magistrate of Jabalpur Vs. Shiv Kant Shukla (1976) SC, AIR (SC)
  4. B. Ramachandra Rao Vs State of Orissa (1972) 3 SCC 256
  5. Sheela Barse Vs. State of Maharashtra 1983 SCC 96
  6. Vijaya Mehta Vs. State of Rajasthan AIR 1980
  7. The Praga Tools Corporation Vs. CV Imanual AIR 1969
  8. Raman Vs. State of Madras AIR 1959 SC 694
  9. EA Co-operative housing society Vs. Maharashtra AIR 1966 SC 1449
  10. State of West Bengal Vs. Nuruddin (1998) 8 SCC 143 case
  11. Hari Vishnu Vs. Ahmed Ishaque 1955 AIR 233
  12. Province of Bombay Vs. Khushaldas AIR 1950 SC 22
  13. Ebrahim Aboobker Vs. Custodian General AIR 1952 SC 319
  14. State of U.P. Vs Mohd. Nooh AIR 1956 SC 86
  15. Syed Yakoob Vs. Radhakrishnan AIR 1964 SC 477
  16. Jamalpur Arya Samaj Sabha Vs. Dr. D Rama AIR 1954 Pat 297
  17. University of Mysore Vs. Govinda Rao AIR 1965 SC 491
  18. Amrendra Vs. Nartendra AIR 1953 Cal 114
  19. Niranjan Kumar Vs University of Bihar AIR 1973
  20. Puranlal Vs. PC Ghosh AIR 1970 Cal 118
  21. S. Govind Menon Vs. Union of India 1967 AIR 1274
  22. Subhash Chandra Vs. India AIR 1973 MP 191
  23. Hari Vishnu Vs. Syed Ahmed Ishaque AIR 1954
  24. East India Commercial CO. Ltd. Vs. Collector of Customs 1962 AIR 1893
  25. Mannusamappa and Sons Vs. Custodian Evacuee Property AIR 1962 SC 789