Under Articles 32 and 226 of the Constitution, the supreme court and the High courts, respectively, have the authority to issue writs of habeas corpus, quo warranto, mandamus, certiorari, prohibition, etc. These writs were brought to India from England, where their development had a long and rocky history, and as a result, they have accumulated a number of technicalities. The primary purpose of the power to issue writs is to guarantee each citizen’s access to constitutional remedies. As far as we know, the Indian people’s access to all other fundamental rights is guaranteed by their right to constitutional remedies. The constitution also stipulates that in addition to the aforementioned, the parliament may grant the supreme court the authority to issue writs for purposes other than those mentioned above. In a similar vein, High courts in India have the authority to issue writs for any purpose, including the enforcement of any of the rights granted by Part III.
Five different types of writs are available:
- Habeas corpus
- Quo warraranto
1. Habeas Corpus:
The Latin phrase “habeas corpus” means “you must have the body,” and the habeas corpus ad subjiciendum writ was used to secure freedom. By issuing this writ, the court orders whoever or whatever detained the other person to bring the prisoner’s body before it so that it can determine whether or not the detention was lawful, within its purview, and justified. The main goal of the writ is to ensure prompt judicial review of any alleged unlawful detention that may have an impact on a prisoner’s freedom or liberty while in custody. The writ’s great value lies in its ability to quickly ascertain a person’s right to freedom. According to Article 22, a person who has been arrested must appear before a magistrate within 24 hours of being detained; if they fail to do so, they are entitled to release. When someone has been taken into custody as a result of a court order, even if the order initially seems to be entirely or partially illegal, habeas corpus cannot be granted. The right to habeas corpus may be exercised not only against the government but also against any private party who is imprisoning a person without a court order. In these situations, it is the responsibility of the police to take the necessary steps to ensure that the detainee is released; however, if a person is missing despite their best efforts, the police cannot be put under undue pressure to find them.
The Supreme Court ruled in Gopalan v. Government of India that the date on which the application for the detention is made to the court is the earliest date with reference to which the legality of the detention may be examined.
2. Quo Warranto:
This phrase refers to your legal standing. According to the applicable statutory provisions, the writ of quo warranto is used to judicially control executive action in the matter of making appointments to public offices. The writ may also be used to defend a citizen against a person holding a position of public trust that they are not entitled to. The writ requires the holder of a public office to demonstrate to the court how and why he obtained the position in question. The court may stop him from acting in the position if he is not entitled to it and may also declare the position vacant. The writ proceedings not only provide a tool to prevent the executive from appointing people to public office in violation of the law, but they also have a tendency to protect the public from losing access to public office to which it is entitled.
Quo warranto guards against a person taking over a public office without authorization. Before issuing a writ, the court must determine that the office in question is public, created by law or the constitution, and that the person holding the office is clearly ineligible to hold it due to a violation of one or more of these requirements. The person against whom the writ of quo warranto is directed must demonstrate how they have the right to hold the position in question. The High Court will not take into account any additional factors that might be important for the issuance of a writ of certiorari when issuing such a writ, instead choosing to publicly declare the appointment’s illegality. Join CLAT coaching in Ranchi.
A court’s order to carry out a legal obligation to perform a public duty is known as a mandamus. For instance, a body can be ordered to decide a matter if it fails to do so when it is required to.
If the government refuses to exercise a power that it is clearly entitled to under the law, or if a powerholder improperly refuses to use their authority, a mandamus may be issued. Mandamus has the purpose of keeping public authorities within the confines of their authority while they carry out their duties. Any type of authority, including legislative, quasi-judicial, administrative, and judicial bodies, may be issued a mandate. Mandamus is a legal tool used to make public authorities perform their duties. When the government is not required to do something by the law, a mandate is not issued. Mandamus can be issued to direct an authority to comply with an order of a tribunal when it fails to fulfil its legal obligation to do so. Thus, mandamus was issued to the relevant authority to issue the permits to the petitioner in accordance with the tribunal order after the appellate transport tribunal accepted the petitioner’s applications for the grant of permits. A mandate is issued to enforce a mandatory obligation, which may or may not be a statutory obligation.
In the case of Bombay municipality v. Advance Builders, the court ordered the municipality to put into effect a planning scheme that had been created by it, approved by the government in accordance with the applicable statute, but on which no action had been taken for a sizable period of time.
4. Prohibition and Certiorari
These writs are intended to stop public authorities from abusing their authority. In the past, only judicial and quasi-judicial bodies could receive these writs. The general remedies for judicial control of administrative and quasi-judicial decisions affecting rights are prohibition and certiorari.
The Latin word “Certiorari” is the passive form of the verb “certiorari,” which means to inform. Only the Supreme Court under Article 32 and a High court under Article 226 may issue a writ of certiorari or a writ in the nature of certiorari to order inferior courts, tribunals, or authorities to transmit the record of proceedings concluded or pending therein for review and, if necessary, for quashing the same. However, a writ of certiorari cannot be issued to request the records, papers, and proceedings of a law or ordinance, let alone to have it overturned.
When a subordinate court is found to have acted (1) without jurisdiction or by assuming jurisdiction where none exists, (2) in excess of its jurisdiction by overstepping or crossing the limits of jurisdiction, or (3) acting in flagrant disregard of the law or rules of procedure or acting in violation of principles of natural justice where there is no procedure specified, certiorari pursuant to Art. 226 is issued to correct the gross error of jurisdiction.
When an inferior court or tribunal (a) acts beyond its authority or without authority, a writ of prohibition is typically issued. (b) continues to act against the principles of natural justice; (c) continues to act in accordance with a law that is inherently unconstitutional or ultra vires; or (d) continues to act against fundamental rights.
The difference between writs of prohibition and certiorari is fundamental. They are given out at various stages of the process. The party being heard can ask the superior court for a writ of prohibition, which would result in an order prohibiting the inferior court from continuing the proceedings, when an inferior court begins hearing a matter over which it lacks jurisdiction. On the other hand, if the court decides after hearing the case, the party would need to file a motion in superior court to overturn the ruling on the grounds that the lower court lacked jurisdiction.
These writs are issued for the following reasons: failure of natural justice; jurisdictional error; error apparent on the face of the record; findings of fact not supported by the evidence; authority acting or having acted in violation of an invalid law.
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