WRITS IN INDIAN CONSTITUTION

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INTRODUCTION

Fundamental Rights are contained in Part III of the Indian Constitution including the right to equality, right to life and liberty, etc. Merely providing for Fundamental Rights is not sufficient. It is essential that these Fundamental Rights are protected and enforced as well.

To protect Fundamental Rights the Indian Constitution, under Articles 32 and 226, provides the right to approach the Supreme Court or High Court, respectively, to any person whose Fundamental Right has been violated. At the same time, the two articles give the right to the highest courts of the country to issue writs in order to enforce Fundamental Rights.

Social and Economic Justice is the signature tune of the Indian Constitution. It guarantees fundamental rights which cannot be ordinarily derogated from, in protecting these rights, the Constitution has provided for writ remedies enforceable by the High Court and the Supreme Court. An important dimension of these remedies is the award of compensation as part of the relief that can be granted to the affected person.

WHAT IS WRIT?

A writ is a formal written order issued by anybody, executive or judicial, authorized to do so. In modern times, this body is generally judicial. Therefore, a writ can be understood as a formal written order issued by a Court having authority to issue such an order. Orders, warrants, directions, summons, etc. are all essentially writs.

A writ petition is an application filed before the competent Court requesting it to issue a specific writ.

The judicial review of administrative actions in the form of writ jurisdiction is to ensure that the decisions taken by the authorities are legal, rational, proper, just, fair, and reasonable. Safeguard of fundamental rights and assurance of natural justice are the most important components of writ jurisdictions.

ORIGINATION OF WRITS

The origin of writs can be drawn from the English Judicial System and were created with the development of English folk courts to the common law courts. The law of writs has its origin from the orders passed by the King’s Bench in England. Writs were issued on a petition presented to the king in council and were considered as a royal order. Writs were a written order issued in the name of the king. However, with different segments writs took various forms and names. The writs were issued by the crown and initially only for the interest of the crown later on it became available for ordinary citizens also. A prescribed fee was charged for it and the filling of these writs was known as Purchase of a Writ.

 

ORIGINATION OF WRITS IN INDIA

The origin of writs in India goes back to the Regulating Act, 1773 under which the Supreme Court was established at Calcutta. The charter also established other High Courts and also gave them the power to issue writs as a successor to Supreme Court. The writ jurisdiction of these courts was limited to their original civil jurisdiction which they enjoyed under Section 45 of the Specific Relief Act, 1877

CONSTITUTIONAL PROVISIONS

Article 32 and 226 of the constitution of India has designed for the enforcement of fundamental rights and for a judicial review of administrative actions, in the form of writs. It is a constitutional remedy available to a person to bring his complaint or grievance against any administrative action to the notice of the court. Safeguard of fundamental rights and assurance of natural justice are the most important components of writ jurisdictions.

Writ jurisdiction is exercised by the Supreme Court and the High court's only. This power is conferred to the Supreme Court by article 32 and to high courts by article 226.

•Article 32(1) guarantees a person the right to move the Supreme Court for the enforcement of fundamental rights guaranteed by part III of the constitution.

•Article 32(2) empowers the Supreme Court to issue direction or orders or writs in the nature of Habeas Corpus, Certiorari, Prohibition, Mandamus, and Quo-warranto for the enforcement of fundamental rights.

•Article 226 empowers the state high courts to issue directions, orders or writs as mentioned above for the enforcement of fundamental rights and for 'any other purpose'. i.e., High courts can exercise the power of writs not only for the enforcement of fundamental rights but also for a 'non-fundamental right'

Thus, the constitution provides the discretionary remedies on the High Court and the Supreme Court. In the absence of the provisions of such remedies, no one can enforce its rights given. Thus, wherever there is a right there must be a remedy for it. Thus, it should satisfy the maxim, ‘ubi jus ibi remedium.’

One of the principle makers of the constitution, Dr. Ambedkar has given the prime importance to Article 32 among all other articles from the Indian Constitution. He has referred that, “It is the very soul of the Constitution and the very heart of it, “It is the very soul of the Constitution and the very heart of it.”

 

 

 

TYPES OF WRITS

 

1) WRIT OF HABEAS CORPUS

It is the most valuable writ for personal liberty. Habeas Corpus means, "Let us have the body." A person, when arrested, can move the Court for the issue of Habeas Corpus. It is an order by a Court to the detaining authority to produce the arrested person before it so that it may examine whether the person has been detained lawfully or otherwise. If the Court is convinced that the person is illegally detained, it can issue orders for his release. A writ of habeas corpus derived from the Latin word means "you may have the body" is a writ (court order) that requires a person under arrest to be brought before a judge or into court. The principle of habeas corpus ensures that a prisoner can be released from unlawful detention—that is, detention lacking sufficient cause or evidence. The remedy can be sought by the prisoner or by another person coming to the prisoner's aid.

This right originated in the English legal system and is now available in many nations. It has historically been an important legal instrument safeguarding individual freedom against arbitrary state action.

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 Relatives. A writ of habeas corpus, also known as the "great writ", is a summons with the force of a court order; it is addressed to the custodian (a prison official for example) and demands that a prisoner be taken before the court and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner.

Habeas corpus has certain limitations. It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial

When it will lie?

The writ of habeas corpus will lie if the power of detention vested in authority was exercised mala fide and is made in collateral or ulterior purposes. but if the detention is justified the high court will not grant the writ of habeas corpus.

CASES

  • Additional district magistrate of Jabalpur v. Shiv Kant Shukla 1976 SC

This case is also known as the habeas corpus case and it was based upon the grounds of issuance and the viability aspect of this writ. This whole case spins around the situation when the emergency was proclaimed and the question was raised whether the writ of habeas corpus is maintainable in this situation or not. It was held that as in the case of Liversidge v. Anderson during emergency all the rights were held suspended, the same was held in the instant case where a state has the power to restrain the rights especially right to life enshrined under Article 21 of the Indian constitution in an emergency situation. This decision was considered to be the darkest day of Indian history.

  • Rudal Shah V. State of Bihar AIR 1983 SC

In this case, the petitioner was acquitted from Muzaffarpur Bihar on 3rd June 1968 but he was released on October 16, 1982, that is to say, more than 14 years after he was acquitted. The petitioner, by a habeas corpus petition, asked for his release on the ground that his detention in the jail is unlawful. He also asked for certain ancillary reliefs like rehabilitation, reimbursements of expenses which he may incur for medical treatment, and compensation for the illegal incarceration. It was held that the detention was illegal as he was not brought before the magistrate court. Thus, the court ordered to give compensation of 30 thousand rupees.

  • Sunil Bhatra V/S Delhi Administration 1979 SC

It has been held that the writ of habeas corpus can be issued not only for releasing a person from illegal detention but also for protecting prisoners from the inhuman and barbarous treatment. The dynamic role of judicial remedies imports to the habeas corpus writ a versatile vitality and operational utility as a bastion of liberty even within jails.

 

2)  WRIT OF MANDAMUS

Mandamus is a Latin word, which means "We Command". Mandamus is an order from a superior court to a lower court or tribunal or public authority to perform an act, which falls within its duty. It is issued to secure the performance of public duties and to enforce private rights withheld by the public authorities. Simply, it is a writ issued to a public official to do a thing which is a part of his official duty, but, which, he has failed to do, so far. This writ cannot be claimed as a matter of right. It is the discretionary power of a court to issue such writs. The primary purpose of this writ is to make the Government machinery work properly.

Mandamus may also be issued to a tribunal to compel it to exercise the jurisdiction vested in it, which it has refused to exercise. Mandamus may also be issued where there is a specific legal right, without specific remedy for enforcement of such right and unreasonableness has no place. The Supreme Court in various decisions has held that the doctrine of legitimate expectation is akin to natural justice, reasonableness, and promissory estoppel.

The writ of mandamus was first used by English courts in the early seventeenth century. It migrated to the courts in the American colonies, and the law on it has remained largely the same ever since. The remedy of mandamus is made available through court opinions, statutes, and court rules on both the federal and state levels.

When it will lie?

Thus, the writ or order in the nature of mandamus would be issued when there is a failure to perform a mandatory duty. But even in the cases of alleged breaches of mandatory duty, the party must show that he has made a distinct demand to enforce that duty and demand was met with refusal.

  • The writ of mandamus can only be granted when there is in the applicant a right to compel the performance of some duty cast upon the authority. The duty sought to be enforced must be a public duty and not a private duty.
  • Thus, a writ of mandamus can be issued to the public authority to restrain it from acting under a law that has been declared unconstitutional.
  • The writ of mandamus can be granted only in cases where there is a statutory duty imposed upon the officer concerned, and there is a failure on the part of that officer to discharge the statutory obligation.

CASES

  • Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V. R. R Udani and Ors.

The court held that it is not necessary that the duty is imposed by statute, mandamus may apply even in cases where the duty is imposed by common law or custom. The ambit of mandamus is very wide, and it must be available when an injustice has occurred. It should not be bogged down with too many technicalities.

  • State of West Bengal v. Nuruddin(1998) 8 SCC 143

Supreme Court held the writ of mandamus is a personal action where the respondent has not done the duty they were prescribed to do by law. The performance of the duty is the right of the applicant.

  • Kerr v. United States District Court (1976) SC

The Court upheld the denial of a writ of mandamus sought by prison officials to prevent the district court from compelling them to turn over personnel and inmate files to seven prisoners who had sued the prison over alleged constitutional violations. The officials argued that turning over the records would compromise prison communications and confidentiality.

 

3) THE WRIT OF CERTIORARI

Literally, Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme Court to some inferior court or tribunal to transfer the matter to it or to some other superior authority for proper consideration. The Writ of Certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court. In other words, while the prohibition is available at the earlier stage, Certiorari is available on similar grounds at a later stage. It can also be said that the Writ of prohibition is available during the pendency of proceedings before a subordinate court, Certiorari can be resorted to only after the order or decision has been announced.

When the Court is of the opinion that a lower court or a tribunal has passed an order, which is beyond its powers or committed an error of law then, through the writ of certiorari, it may transfer the case to itself or quash the order passed by the lower court or tribunal.

When it will lie?

Writ lies on Judicial bodies one of the fundamental principles in regard to the issuing of a writ of certiorari is that the writ can be availed of only to remove or to adjudicate upon the validity of judicial acts. the expression judicial acts include the exercise of quasi-judicial functions by administrative bodies or authorities or persons obliged to exercise such functions and is used in contrast which is purely ministerial acts.

CASES

  • Hari Vishnu Kamath v. Ahmad Ishaque AIR 1955 SC 233

This case lays down the scope and grounds of filing the writ.

  1. When there is an error of jurisdiction.
  2. When the court has not given the proper time for both parties to be heard or has violated principles of natural justice.
  3. This writ is supervisory in nature, and thus the High court cannot review the findings of the lower courts.
  4. If the error is evident.

 

  • Province of Bombay v/s Khushaldas 1950 SC

In this case, it was held that whenever anybody of a person having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially acts in excess of their legal authority, a writ of certiorari will lie. It does not lie to remove merely ministerial acts or to remove or cancel executive administrative acts.

 

4) THE WRIT OF PROHIBITION

Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. It is a writ issued by a superior court to lower court or a tribunal forbidding it to perform an act outside its jurisdiction. After the issue of this writ proceedings in the lower court etc. come to a stop. The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, prohibiting the latter to continue proceedings in a particular case, where it has no legal jurisdiction of trial. While the writ of mandamus commands doing of a particular thing, the writ of prohibition is essentially addressed to a subordinate court commanding inactivity

A writ of prohibition is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction in cases pending before it or acting contrary to the rules of natural justice. It is issued by a superior court to 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.

The underlying principle is that ‘prevention is better than cure'.

CASES

  • In East India Commercial Co. Ltd v. Collector of Customs

It was held that a writ of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise.

  • S. Govind Menon Vs. Union Of India

Prohibition is not a continuation of the proceedings to be prohibited. Its object is on the contrary to arrest the inferior tribunal's proceedings. It is a collateral matter progress essentially between the two tribunals, an inferior one and another superior one by which the latter, by virtue its power of superintendence over the former, restrains it within its rightful competence. Its nature is held to depend upon the nature of proceeding to be prohibited.

  • Calcutta Discount Co. Ltd. v. ITO AIR 1961 SC

Supreme Court held that when a subordinate court or tribunal is shown decisively that they have acted in excess of their jurisdiction, the court will issue a writ of prohibition regardless of whether there exists an alternative remedy or not.

 

5) THE WRIT OF QUO WARRANTO

The word Quo-Warranto literally means "by what warrants". It is a writ issued with a view to restraining a person from acting in a public office to which he is not entitled. The writ of quo warranto is used to prevent the illegal assumption of any public office or usurpation of any public office by anybody.

The writ of Quo warranto is to confirm the right of citizens to hold public offices. In this writ, the court or the judiciary reviews the action of the executive with regard to appointments made against statutory provisions, to public offices. It also aims to protect those persons who are deprived of their right to hold a public office.

Its objective is to prevent a person from holding an office he is not entitled to therefore preventing usurpation of any public office.  It cannot be issued with respect to a private office.

 

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. 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.

CASES

  • Jamalpur Arya Samaj Sabha v/s Dr. D. Ram

In this case, it was held that the high court refused to issue a writ Quo Warranto against the members of the working committee on the Bihar Arya Samaj Sabha, a private association. The meaning of the term Quo Warranto is ‘by what authority’. The writ of quo warranto may be issued against a person holding a public office or governmental privilege.

  • University of Mysore v. Govinda Rao

The Supreme Court observed that the procedure of quo Warranto confers the jurisdiction and authority on the judiciary to control executive action in making the appointments to public offices against the relevant statutory provisions; it also protects a citizen being deprived of public office to which he may have a right.

CONCLUSION

The power to grant writs is one of the most important powers granted to the High Courts and the Supreme court under Section 226 and Section 32 respectively. Writs protect the rights of the citizens by providing a faster remedy, thereby upholding the principles of democracy by providing quick justice. The importance of writs cannot be underestimated, and the courts must necessarily use this power judiciously as they have been given a very wide ambit to practice this power.