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.
Prudential Capital Markets Ltd. v. State of A.P. (2000)
Facts: This case involved the initiation of criminal proceedings by a lower court without proper jurisdiction. Reasoning: The High Court issued a writ of prohibition to prevent the lower court from proceeding further, as it had acted beyond its jurisdiction. Prohibition and certiorari-
- Certiorari
A writ of certiorari is issued by a Superior Court (Supreme Court and High Courts) to an inferior court or body exercising judicial or quasi-judicial functions to remove a suit from such inferior court or body and adjudicate upon the validity of the proceedings or body exercising judicial or quasi-judicial functions.
Conditions for issuing
- This writ can be issued against a court, tribunal, or any authority that has the legal right to act judicially. Where there is:
- Lack of Jurisdiction
- Excess of Jurisdiction:
- Violation of Natural Justice
- Error Apparent on the Face of the Record.
Case Laws
Syed Yakoob v. K.S. Radhakrishnan (1964):
Facts: This case involved the cancellation of a motor vehicle permit by the Regional Transport Authority. Reasoning: The Supreme Court issued a writ of certiorari to quash the cancellation order, finding that the authority had acted in excess of its jurisdiction.
Surya Dev Rai v. Ram Chander Rai (2003):
Facts: This case involved a challenge to the orders of a civil court on the grounds of jurisdictional errors. Reasoning: The Supreme Court issued a writ of certiorari to quash the orders, holding that the civil court had acted beyond its jurisdiction. Conclusion: The Court clarified that certiorari can be used to correct jurisdictional errors and ensure that lower courts act within their legal limits.
Distinguished.-Prohibition has much in common with certiorari. Both the writs are issued with the object of restraining the inferior courts from exceeding their jurisdiction. The difference between the two writs was explained by the Supreme Court in the following words : “When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the Supreme Court for a writ of prohibition and on that an order will issue forbidding the inferior court from continuing the proceedings. On the other hand, if the court hears the cause or matter and gives a decision, the party aggrieved would have to move the Supreme Court for a writ of certiorari on that an order will be made quashing the decision on the ground of jurisdiction.” When the case is pending before the Court but it has not finally been disposed of. the Supreme Court has to apply both prohibition and certiorari-prohibition to prevent the Court to proceed further with the case and certiorari for quashing what had already been decided.
Prohibition, like certiorari, lies only against judicial and quasi-judicial bodies. It does not lie against a public authority which acts purely in an executive or administrative capacity, nor to a legislative body.
- Quo warranto
The words “quo warranto’ means what is your authority by this writ a holder of an office is called upon to show to the court under what authority he holds the office. The object of the writ of quo warranto is to prevent a person to hold an office which he is not legally entitled to hold. If the inquiry leads to the finding that the holder of the office has no valid title to it, the Court may pass an order preventing the holder to continue in office and may also declare the office vacant.
Who can apply.—A writ of quo warranto can be claimed by a person if he satisfies the Court that :— 1) the office in question is a public office; and
(2) it is held by a person without legal authority. The writ of quo warranto is not issued in respect of an office of a private character. A citizen can claim a writ of quo-warranto and he stands in the position of a relater. He need not have any special interest or personal interest The real test is to see whether the person holding the office is authorised to hold the same as per law.
Case Laws
- Mahesh Chandra Gupta v. Dr. Rajeshwar Dayal and Others (2003)
Facts: This case involved the appointment of a Vice-Chancellor of a university. The petitioner challenged the appointment on the grounds that it was not made in accordance with the statutory provisions.
Reasoning: The Supreme Court issued a writ of quo warranto, asking the appointee to justify his appointment. Conclusion: The Court held that the writ of quo warranto can be issued to challenge appointments made in violation of statutory provisions
- S. Chandramohan Nair v. George Joseph (2010)
Facts: This case involved the appointment of a member of the Kerala Public Service Commission.
Reasoning: The Kerala High Court issued a writ of quo warranto, asking the appointee to justify his appointment.
Full video on 5 Writs
