Overview: WRITS AND ITS TYPES IN INDIA

ABSTRACT

A writ is filed by any person whose fundamental rights are violated. A writ is a formal written order issued by a court. In this blog we will get to know about Writs, it’s types and by whom and where a writ can be filed.

Introduction

The meaning of the word ‘Writs’ means command in writing in the name of the Court. A writ is a formal written order issued by anyone authorised to do so, whether executive or judicial. This body is generally judicial in modern times. As a result, a writ can be defined as a formal written order issued by a Court with the authority to do so. Writs include orders, warrants, directions, summons, and so on. A writ petition is an application filed with the competent Court requesting that a specific writ be issued.[1]

By whom and where can a writ petition be filed?

Any person whose Fundamental Rights have been violated by the State may file a writ petition. Any public-spirited person may file a writ petition in the interest of the general public under a Public Interest Litigation, even if his own Fundamental Right has not been violated.

A writ petition can be filed in the Supreme Court under Article 32. The Supreme Court can only issue a writ if the petitioner can demonstrate that his Fundamental Right has been violated. It is important to note that the right to petition the Supreme Court in the event of a violation of a Fundamental Right is a Fundamental Right in and of itself, as it is found in Part III of the Constitution. A writ petition under Article 226 may be filed before any High Court whose jurisdiction the cause of action arises, in whole or in part. It makes no difference whether the authority against whom the writ petition is filed is within or outside the territory. The High Court has far more writ-issuing authority than the Supreme Court.[2]

Types of Writs in India

In India, writs are legal orders issued by the courts to protect an individual's fundamental rights. Here are the main types of writs in India-

1. Habeas Corpus
2. Mandamus
3. Quo-Warranto
4. Prohibition
5. Certiorari

HABEAS CORPUS

'Habeas Corpus' means "to have a body of". This writ is used to order the release of someone who has been wrongfully detained or imprisoned. The Court, by virtue of this writ, orders that the person so detained be brought before it to be examined for the legality of his detention. If the Court determines that the detention was unlawful, the person must be released immediately.[3] The following are examples of unlawful detention:

• The detention was not carried out in accordance with the established procedure. For example, the individual was not brought before a Magistrate within 24 hours of his arrest.
• The individual was arrested despite the fact that he had not broken any laws.
• An arrest was made in accordance with an unconstitutional law.

This writ can be filed by the detained person himself or on his behalf by relatives or friends. It can be issued against both governments and individuals.

The Supreme Court held in Kanu Sanyal v. District Magistrate Darjeeling & Ors.[4] that rather than focusing on the defined meaning of Habeas Corpus, i.e. produce the body, the focus should be on the examination of the legality of the detention by looking at the facts and circumstances of the case. It was stated that this is a procedural writ rather than a substantive writ. This case addressed the nature and scope of the habeas corpus writ.

MANDAMUS

'Mandamus' means 'we command'. The Court issues it to direct a public authority to perform legal duties that it has failed or refused to perform. The Court may issue it against a public official, a public corporation, a tribunal, an inferior court, or the government. It cannot be issued against a private person or entity, the President or Governors of States, or a sitting Chief Justice.

The writ of mandamus is issued to keep public authorities within their jurisdiction while carrying out their duties. The purpose of mandamus is to prevent disorder caused by a failure of justice, and it must be granted in all cases where no specific remedy is established by law. It cannot be issued when the government or a public official has no legal obligation to perform.

A person in good faith who has an interest in the performance of the duty by the public authority must file a writ petition seeking mandamus. A person seeking mandamus must have a legal right to do so, as well as have demanded that the duty be performed and been refused by the authority.

Quo Warranto

'Quo Warranto' translates as 'by what warrant'. The Court, through this writ, requests that a person holding a public office demonstrate the authority under which he holds that office. If it is discovered that the person is not qualified to hold that position, he may be removed from it. Its goal is to prevent a person from holding an office to which he is not entitled, thus preventing usurpation of any public office. It cannot be issued in the case of a private office.[5]

In the case of Jamalpur Arya Samaj Sabha v. Dr D Rama case, the petitioner filed an application for issuing the writ of Quo Warranto against the Working Committee of Bihar Raj Arya Samaj Pratinidhi Sabha, which was a private body. The High Court of Patna refused to issue the writ of Quo Warranto because it was not a public office.

Prohibition

A writ of prohibition is issued by a Court to prevent lower courts, tribunals, and other quasi-judicial authorities from acting outside of their jurisdiction. It is issued to direct inactivity, as opposed to mandamus, which directs activity. It is issued when a lower court or tribunal acts without or beyond its jurisdiction, in violation of natural justice rules, or in violation of fundamental rights. It can also be issued when a lower court or tribunal acts in violation of a law that is itself unconstitutional. Prohibition literally means 'to forbid'. When the higher courts believe that the lower courts and Tribunals are exceeding their jurisdiction, they issue Prohibition Writs to the lower courts and Tribunals.

Certiorari

Certiorari translates as "to be certified or informed." The Court issues this writ to lower courts or tribunals in order to transfer or quash orders issued by them in specific cases. When the Supreme Court or the High Court believes that the lower court or tribunal has exceeded its jurisdiction, this is done. It is remedial in nature, as opposed to Prohibition Writ, which is only preventive.

In the following cases, the Supreme Court or High Court issues a writ of certiorari to a lower court or tribunal:

• When a subordinate court acts without jurisdiction or assumes jurisdiction where it does not exist,
• When the subordinate court acts in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction,
• When the subordinate court acts in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or when the subordinate court acts in excess of its
• When a subordinate court acts in flagrant disregard of the law or procedural rules, or when a subordinate court acts in violation of natural justice principles where no procedure is specified.

Conclusion

Writs are essential tools for the judiciary to safeguard the fundamental rights of individuals and ensure the proper functioning of the legal system. They play a crucial role in maintaining the rule of law in the country.

References

[1] Article 32 : the Soul and Heart of the Constitution, 2.3 JCLJ (2022) 1244

[2] Conspectus on Article 32 : Analysis of Writs and Public Interest Litigation, 2.1 JCLJ (2021) 191

[3] The Origin and Development of Writs, (1964) 77 LW (JS) 39

[4] Kanu Sanyal v. Distt. Magistrate, (1974) 4 SCC 141

[5] The Rule of Law and the Role of the Judiciary, (1950) 63 LW (JS) 103

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