Month: September 2024

WRITS The state and its instrumentalities, such as the police, universities, and other government bodies, exist to serve the nation and fulfil public duties. However, there are times when these very entities violate our rights, leaving us with no other option. In such instances, we can seek help and assistance from the court by applying for special orders known as writs. Thus, writs are special orders issued by superior courts to protect people’s rights and ensure that justice is done. These writs are five in number. These writs serve as an effective mechanism through which the judiciary can uphold the rights of individuals when those rights are violated, particularly by the state or public authorities, and in some cases even by private individuals.  In India, two courts have the authority to issue writs: Supreme Court (Article 32): Writs only for fundamental rights. High Courts (Article 226):  Writs for fundamental rights and other legal rights.   Habeas Corpus Habeas Corpus is a Latin term which literally means “you may have the body”.  The writ is issued in the form of an order calling upon a person by whom another person is detained to bring that person before the Court and to let the Court know by what authority he has detained that person. Who can apply for the writ: The general rule is that an application can be made by a person who is illegally detained, But in certain cases, an application of habeas corpus can be made by any person on behalf of the prisoner, i.e., a friend or a relation. Burden of proof The burden of proof to justify detention has always been placed on the detaining authority. Writ against private individual The Supreme Court of India clarified this in the case of Kanu Sanyal v. District Magistrate, Darjeeling (1973). In this landmark judgment, the Court emphasized that the writ of habeas corpus can be issued not only against public authorities but also against private individuals if it is proven that they are unlawfully detaining someone. Case Law and Example: Mohd. Ikram Hussain v. State of U.P. (1964) All  Facts: Mohd. Ikram Hussain was arrested and detained by the police under the suspicion of having committed a crime. His family believed that the detention was illegal, as he was not produced before a magistrate within the stipulated time, and there was no legal basis for his continued detention. The family filed a petition in the Allahabad High Court, seeking a writ of habeas corpus to challenge the illegal detention and secure his release.  Judgement: The Allahabad High Court issued the writ of habeas corpus and ordered the police to bring Mohd. Ikram Hussain before the court to justify his detention. Upon reviewing the facts, the court found that: The detention was illegal, as the police had not followed due process, including presenting him before a magistrate within the required time. The court directed his immediate release, as there was no valid reason for his continued detention. Similarly, the detention becomes unlawful if a person who is arrested is not produced before the Magistrate within 24 hours of his arrest and he will be entitled to be released on the writ of habeas corpus.  It can also be issued in case of child’s custody cases by one parent against the other.   Mandamus The word “mandamus” means “the order” or “we command”. When it is used: If a government officer or body is not performing its duty, you can approach the court for a mandamus writ to compel them to act. For instance, a licensing officer is under a duty to issue a licence to an applicant who fulfils all the conditions laid down for the issue of such Licence. But despite the fulfilment of such conditions if the officer or the authority concerned refuses or fails to issue the licence the aggrieved person has a right to seek the remedy through a writ of mandamus. Allahabad High Court issued a writ of mandamus to direct the Regional Passport Officer to issue a passport to the petitioner. (Basoo Yadav v. Union of India, 2022 All) When it will not lie. —A writ of mandamus will not be granted in the following circumstances: (1) When the duty is merely discretionary in nature the writ of mandamus will not lie. State of M. P. v. Mandawara,’ the M. P. Government made a rule making it discretionary to grant dearness allowance to its employees at a particular rate. The Supreme Court held that the writ of mandamus could not be issued to compel the Government to exercise its power. (2) A writ of mandamus does not lie against a private individual or any private organisation because they are not entrusted with a public duty.’ (3) A writ of mandamus cannot be granted to enforce an obligation arising out of contract.’   Prohibition A writ of prohibition literally means “to forbid”. It is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction or acting contrary to the rules of natural justice. It is issued by a superior Court to inferior courts for the purpose of preventing inferior Courts from usurping a jurisdiction with which it was not legally vested, or in other words to compel inferior courts to keep within the limits of their jurisdiction. Thus the writ is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction. Hari Vishnu Kamath v. Syed Ahmad Ishaque (1955) Facts: This case involved an election dispute where the Election Tribunal’s decision was challenged. Reasoning: The Supreme Court issued a writ of prohibition to prevent the Tribunal from proceeding further, as it had acted beyond its jurisdiction. East India Commercial Co. Ltd. v. Collector of Customs (1962) Facts: This case involved the seizure of goods by customs authorities without proper jurisdiction. Reasoning: The Supreme Court issued a writ of prohibition to prevent the customs authorities from proceeding further, as they had acted beyond their jurisdiction….

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