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WRIT & Its Kinds

The document discusses the meaning and types of writs under the Indian Constitution. It defines a writ as a formal written order issued by a judicial body. The Indian Constitution under Articles 32 and 226 allows Supreme Court and High Courts to issue five types of writs - habeas corpus, mandamus, quo warranto, certiorari, and prohibition - to protect fundamental rights. Habeas corpus deals with unlawful detention, mandamus commands public authorities to perform duties, and the other writs deal with challenging public offices, correcting errors of lower courts, and prohibiting actions beyond authority.

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Sarang Ali
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16 views

WRIT & Its Kinds

The document discusses the meaning and types of writs under the Indian Constitution. It defines a writ as a formal written order issued by a judicial body. The Indian Constitution under Articles 32 and 226 allows Supreme Court and High Courts to issue five types of writs - habeas corpus, mandamus, quo warranto, certiorari, and prohibition - to protect fundamental rights. Habeas corpus deals with unlawful detention, mandamus commands public authorities to perform duties, and the other writs deal with challenging public offices, correcting errors of lower courts, and prohibiting actions beyond authority.

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Sarang Ali
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© © All Rights Reserved
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Download as DOCX, PDF, TXT or read online on Scribd
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[19/08, 1:43 am] Muhammad Aadil: Meaning of Writ

Fundamentally, a writ is a formal written order issued by anybody, executive or judicial, authorised 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.

Writs under Indian Constitution

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.

Kinds of writs

Articles 32 and 226 specifically provide for five kinds of writs. These writs are issued in different
circumstances and have different implications. They are:

Habeas Corpus

‘Habeas Corpus’ literally means “to have a body of”. This writ is used to release a person who has been
unlawfully detained or imprisoned. By virtue of this writ, the Court directs the person so detained to be
brought before it to examine the legality of his detention. If the Court concludes that the detention was
unlawful, then it directs the person to be released immediately. Circumstances of unlawful detention
are:

The detention was not done in accordance with the procedure laid down. For instance, the person was
not produced before a Magistrate within 24 hours of his arrest.

The person was arrested when he did not violate any law.

An arrest was made under a law that is unconstitutional.

This writ ensures swift judicial review of the alleged unlawful detention of the prisoner and immediate
determination of his right to freedom. However, Habeas corpus cannot be granted where a person has
been arrested under an order from a competent court and when prima facie the order does not appear
to be wholly illegal or without jurisdiction.
This writ can be filed by the detained person himself or his relatives or friends on his behalf. It can be
issued against both public authorities and individualsMandamus

‘Mandamus’ means ‘we command’. It is issued by the Court to direct a public authority to perform the
legal duties which it has not or refused to perform. It can be issued by the Court against a public official,
public corporation, tribunal, inferior court or the government. It cannot be issued against a private
individual or body, the President or Governors of States or against a working Chief Justices. Further, it
cannot be issued in the following circumstances:

The duty in question is discretionary and not mandatory.

For the performance of a non-statutory function.

Performance of the duty involves rights of purely private nature.

Where such direction involves violation of any law.

Where there is any other remedy available under the law.

Quo Warranto

‘Quo Warranto’ means ‘by what warrant’. Through this writ, the Court calls upon a person holding a
public office to show under what authority he holds that office. If it is found that the person is not
entitled to hold that office, he may be ousted from it. 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.

The writ can be issued only when the following conditions are fulfilled:

The public office is wrongfully assumed by the private person.

The office was created by the constitution or law and the person holding the office is not qualified to
hold the office under the constitution or law.

The term of the public office must be of a permanent nature.

The nature of duties arising from the office must be public.

Certiorari

‘Certiorari’ means to ‘certify’. Certiorari is a curative writ. 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. A writ of certiorari is issued by the Supreme Court or High Court to the subordinate
courts or tribunal in the following circumstances:
When a subordinate court acts without jurisdiction or by assuming jurisdiction where it does not exist,
or

When the subordinate court acts in excess of its jurisdiction by way of overstepping or crossing the
limits of jurisdiction, or

When a subordinate court acts in flagrant disregard of law or rules of procedure, or

When a subordinate court acts in violation of principles of natural justice where there is no procedure
specified.

Prohibition

A writ of prohibition is issued by a Court to prohibit the lower courts, tribunals and other quasi-judicial
authorities from doing something beyond their authority. It is issued to direct inactivity and thus differs
from mandamus which directs activity.

It is issued when the lower court or tribunal acts without or in excess of jurisdiction or in violation of
rules of natural justice or in contravention of fundamental rights. It can also be issued when a lower
court or tribunal acts under a law that is itself ultra vires.

The difference between the writ of certiorari and prohibition is that they are issued at different stages of
proceedings of the case. The writ of certiorari is issued after the case is heard and decided. It is issued to
quash the decision or order of the lower court when the lower court passed an order without or in
excess of jurisdiction. Whereas, the writ of prohibition is issued prohibiting the proceedings in the lower
court which acts without or in excess of jurisdiction while the case is pending before it.

Who can file a writ petition?

A writ petition can be filed by any person whose Fundamental Rights have been infringed by the State.
Under a Public Interest Litigation, any public-spirited person may file a writ petition in the interest of the
general public even if his own Fundamental Right has not been infringed.

Where can a writ petition be filed?

Under Article 32, a writ petition can be filed in the Supreme Court. The Supreme Court can issue a writ
only if the petitioner can prove that his Fundamental Right has been infringed. It is important to note
that the right to approach the Supreme Court in case of a violation of a Fundamental Right is in itself a
Fundamental Right since it is contained in Part III of the Constitution.

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