WRITS IN INDIAN CONSTITUTION

A writ is a court’s order or demand to any person or authority to perform or refrain from doing anything.

We have been provided two kinds of rights:

(i) Constitutional Rights

(ii) Statutory Rights

Some constitutional remedies are provided under Articles 32 and 226 of the Indian Constitution to protect our Fundamental Rights.

Fundamental Rights are discussed in Part III of the Constitution. It ranges the Constitution from Article 12 to Article 35. Article 32 might be seen as a Fundamental Right in itself.

ARTICLE 32 OF INDIAN CONSTITUTION

Article 32 of the Indian Constitution specifically addresses two rights and powers:

First, a person can immediately petition the Supreme Court for the enforcement of their Fundamental Rights if they are being infringed upon.

Second, Article 32 of the Indian Constitution gives the Supreme Court the authority to issue writs to protect Fundamental Rights.

This is why the Supreme Court is designated as the “Protector and Guarantor of Fundamental Rights” under Article 32 of the Constitution. Article 32 is sometimes recognised as the Constitution’s heart and soul. The rights inherent in Article 32 are also conferred in Article 226, which allows a person to approach the High Court.

DIFFERENCE BETWEEN ARTICLE 32 AND ARTICLE 226

Articles 32 and 226 of the Constitution differ significantly in the following ways:

1. Under Article 32 of the Indian Constitution, the powers to issue the writ are confined to the protection of Fundamental Rights. In contrast, the writ might be issued under Article 226 of the Indian Constitution for the protection of Fundamental Rights as well as any other reason.
2. Article 32 of the Indian Constitution is a Fundamental Right since it belongs under Part III, but Article 226 of the Indian Constitution is not.

TYPES OF WRITS

Articles 32 and 226 of the Indian Constitution define five types of writs. They are as follows:

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

WRIT OF HABEAS CORPUS

Habeas Corpus literally means as “to have the body.” It is a prerogative writ. It is a release order. It gives a person who has been unfairly held or confined a remedy. (Prerogative means a right or privilege exclusive to a particular individual or class.)
The objective of Habeas Corpus is not to penalise the official who is responsible for illegal incarceration or harm, but rather to free the individual. The writ cannot be issued to liberate someone who is in court or police custody.

The court ruled in Smt. Jayamma vs. State of Karnataka that the Writ of Habeas Corpus could be utilised against both the state and the individual (who is detaining a person unlawfully).

Even during an emergency, the Writ of Habeas Corpus can be used to enforce the Fundamental Rights provided by Articles 20 and 21.

Writ of Habeas Corpus cannot be used in the following four conditions:

• when detention is lawful.
• when there is contempt of court.
• when detention is outside the jurisdiction of the court.
• when detention is by a contempt court.

WRIT OF MANDAMUS

Mandamus is Latin word for “command.” It is issued in the following ways:

(i) in favour of the person who establishes a legal right in itself, and

(ii) against a person who has a legal responsibility to fulfil but has failed to do so.

The Writ of Mandamus applies to courts, tribunals, boards, administrative authorities, corporations, or individuals who are required by law to fulfil a task related to the office they hold.

Because the Writ of Mandamus is largely discretionary, the remedy cannot be claimed as a right.

The court can use the Writ of Mandamus to force an authority to perform his obligations, exercise his power, or refrain from performing an act. The term “authority” in this context refers to governmental, semi-governmental, and judicial bodies.

Conditions for Writ of Mandamus

• There should be a legal violation of right.
• There should be a legal duty to perform.
• The petition is to be filed in good faith.
• There should be no alternate remedy available in other laws.

WRIT OF CERTIORARI

Certiorari is Latin word for “to certify.” It is based on common law. The Writ of Certiorari is a remedial action. It is a mandate or order given by the High Court or Supreme Court to a lower court or tribunal, board, authority, or personnel to submit the documents for review.

If the order of such a lower court is without jurisdiction or violates the concept of Natural Justice, it will be overturned.

Grounds for issuing the Writ of Certiorari

• If the court issues an order without jurisdiction.
• If the court exercises excess jurisdiction.
• If an order is a violation of Natural Justice or is unconstitutional.

Writ of Certiorari cannot lie against-

• Individual.
• Company.
• Private authority.
• Association.

And who can apply-

• Generally, the party whose rights are affected may apply.
• If a question affects the public at large, any person may apply.

WRIT OF PROHIBITION

The word “prohibition” implies “to forbid.” The purpose of the Writ of Prohibition is to prevent. It forbids the subordinate court from exceeding its authority or usurping jurisdiction that it does not possesses. Only judicial and quasi-judicial authorities are subject to the Writ of Prohibition.

Writ of Prohibition cannot be exercised against the following:

• Administrative authorities.
• Legislative bodies.
• Private individuals.

WRIT OF QUO WARRANTO

Quo warranto means by what authority. The Writ of Quo Warranto is used to determine the legitimacy of a person’s claim to a public office. It can only be provided to verify a claim to public office. If the individual is found to be ineligible for the position, he may be removed from it.

The Writ of Quo warranto cannot lie against the following:

• Private office.
• Ministerial office.

Conditions to issue the writ of Quo Warranty:

• It can be issued only in respect of the public office.
• Such public office should be of permanent character.
• Such public office should be created by a statute or by the Constitution.

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