Writs under Constitution of India

Writs under Constitution of India

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Writs under Constitution of India

The Supreme court and the High Court are provided with many strong powers which they can exercise to give justice to the people. Out of all the powers assigned to them by the Constitution, is the power of issuing writs.  With this article, we will understand the concept of writs and how it is issued by the court. In general way, writs are a command given by the court to the person or the authority by which such person or the authority have to act or abstain from doing such act in a certain way. Hence as a part of giving the rights and justice to the people, it plays an essential role of the judicial power of the courts.

What are writs under the Constitution of India?

As we all know, Constitution has given the power to be controlled or abstain or giving fundamental rights to the citizen of India. Likewise, it has also given the rights to the Supreme court with the power to issue the Writ under ‘Article 32 of the Constitution of India’.

What does Article 32 of the Constitution of India speak about?

Article 32 under the Constitution of India have given the power to the Supreme Court to issue the Writ. Under Article 32, when any fundamental right of the individual is violated or misused, the person has the right to directly approach Supreme Court to enforce justice and accordingly the Court can issue an appropriate Writ so that right can be enforced.

The power to issue the Writ is also given to the High Courts under the Article 226 of the Constitution. While people can approach the Supreme Court only when his fundamental right has been infringed, and citizen can approach the High Court for the issue Writs in other matters as well where his/her fundamental rights are not violated.

Types of Writs in India

The Supreme Court of India plays a role of defending fundamental rights of the citizens from getting violated. For the reason why, it has been assigned with wide powers. The Constitution issues five kinds of writs for enforcing the fundamental rights of the citizens. They are as follow:

  • Habeas Corpus
  • Mandamus
  • Prohibition
  • Certiorari
  • Quo – Warranto

1. Habeas Corpus

‘Habeas Corpus’ is a Latin word which means ‘To have the body of’. This writ is issued to enforce the fundamental right of the individual liberty against unlawful detention. Through Habeas Corpus, Courts orders the person who has arrest another person to present the body of the latter before the court.

How does Habeas Corpus work in India:

  • The Supreme or High court can issue a writ against both private and public authorities
  • This writ can only be issued under following circumstances:
  • – When detention is lawful
  • When the proceeding is for contempt of a legislature or a court
  • Detention is by a competent court
  • Detention is carried outside the jurisdiction of the court

2. Mandamus

The literal meaning of this writ is ‘We command’. This Writ is used by the court to order the public official who has failed to perform his duty or neglected to do, while resume his work. The writ of mandamus can also be issued against any public body i.e, a corporation, an inferior court, a tribunal, or government for same purpose.

How does Writ of Mandamus work in India:

It is issued to private individual

It can be only issued when:

  • To enforce departmental instruction that does not possess statutory force
  • To give orders to the public official to work when such kind of work is discretionary and not mandatory
  • To enforce a contractual obligation

Writ of Mandamus can’t be issued against the Indian President or State Governors

3. Prohibition

The writ of prohibition means to ‘forbid’. This writ is not often in process as it is an exemptional remedy which Supreme Court issues to the inferior court or tribunal court to stop them from deciding a case because these courts do not have the jurisdiction. It is directly inactive.

How does Writ of Prohibition work in India:

  • Writ of prohibition can be only issued against the judicial & quasi-judicial authorities.
  • It can’t be issued against administrative authorities, legislative bodies and private individuals.

4. Certiorari

The literal meaning of the Writ of Certiorari is ‘to be certified’ or ‘to be informed’. This Writ is issued by a court to lower court or tribunal ordering them either to transfer the case pending to them or quash their order in a case.  The writ is issued on the grounds of an excess of jurisdiction or lack of jurisdiction or because of the error of law. It is not only preventing but rectify the mistakes in the judiciary.

5. Quo-warranto

The literal meaning of the Writ of ‘Quo- Warranto’ is by ‘what authority or warrant’. The Supreme Court or High court issue this writ to prevent illegal possession or exercising the authority wrongfully. Through this Writ, the court enquires into the legality of a claim of a person to the public office.

How does Writ of Quo- Warranto work in India:

  • Quo- Warranto can be issued only when the substantive public office who is permanent created by a statute by the involvement of the constitution
  • Writ of Quo- Warranto can’t be issued against private or ministerial office.

How does Writ jurisdiction of the Supreme Court differ from the High Court?

Article 32 of the Indian Constitution empowers the Supreme Court to issue writs, where as Article 226 of the Indian Constitution empowers the High Court to issue the writs. However, there’s a difference between both the courts to issue Writs

1. Purpose of the Writ in both the courts

The purpose of the Supreme Court to issue writ is to enforce fundamental rights, which under High Court, it is done to enforce fundamental rights as well as for the other purposes. The expression here for other purposes refers to the enforcement of an ordinary legal right

2. Territorial jurisdiction

It is issued by the Supreme Court against a person or the government throughout the territory of India. The High Court can issue the writs against a person residing, governing, or authority located within its territorial jurisdiction only.

The Constitution of India has given the power to issue writs. These are the command which is provided by the court to perform certain responsibility of an act to the public authority which has a duty to offer.

Such Writs plays a key role in enforcing the rights of the people and have also improved the scope of the power judicial review of the courts.

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