WRITS AND ITS TYPES
WRITS AND ITS TYPES
Author : Taniya Tejan
INTRODUCTION
Writ means any written command and order in the name of the court or other legal authority to act or abstain from acting the Supreme Court and High court has the power to issue a writ. India borrowed this concept of writs from England. Under “The Constitution Of India” Article 32 empowers the Supreme court to issue a writ to provides a constitutional remedy against the violation of any Fundamental right ( part- III). Under Article 226 empowers the High court to issue a writ but its power was not limited like the Supreme court.
However, Article 32 of Constitution of India protect the right of the citizen for example if any person who is the citizen of India has faced any violation of his fundamental right then he has the absolute power which was guaranteed under the constitution of India to directly move to the Supreme court for remedy but there are some exception like the in the time of emergency period then is totally on the discretion of the supreme court. On the other hand Article 226 have the same power to issue writ but it has wide powers as compared to Article 226. Article 226 empowers the High court not only to issue writs but it can be operated for the other purposes. Article 226 is also a constitutional provision but it was not a fundamental right unlike article 32.
TYPES OF WRITS
- Habeas Corpus.
- Mandamus
- Certiorari
- Quo-Warranto
- Writ of Prohibition
1. Writ of Habeas Corpus
Habeas corpus means “to have a body” or to produce a body. This writ used to enforce the fundamental right of individual liberty against unlawful detention and by this writ, the court directs its official and authority who has detained another person to bring that person or prisoners to present before the court for justification of his detention and examine that whether that detention is lawful and unlawful.
When cannot be issued
- Detention is lawful.
- Contempt of court.
- Detention is outside.
- Detention by a competent court
Case -; Rudal Shah v. the State of Bihar, A.I.R 1983 SC 1086
FACTS-;
In this case, Rudal shah who was the petitioner, in this case, was arrested on a charge of his wife murder in 1953 and he was acquitted by additional session judge in 1968, who was directed to release from jail but he was released from jail on 1982, which is more than 14 years after he was acquitted then he filed a Writ of Habeas corpus for release from jail on the ground of his unlawful detention.
Judgment
It was held by the court that the petitioner detention was illegal in jail and he was not brought before the magistrate. And the court also orders to give compensation of 30 thousand rupees.
2. Writ of Mandamus
Writ of Mandamus means “we command”. This writ is used when someone does to not perform his duty and refused from doing then the supreme court and or high court command them to resume that work . for example if the government, public authority, corporation and tribunal refused from performing their statutory duty then the SC and Hc command them to resume their duty.
This writ cannot be issued in a personal capacity.
Condition
Legal Right
Legal duty
Demand and refusal
Good faith
No alternate remedy
Can be issued against
Court
Tribunal
A Board
Administrative authority
corporation
The writ doesn’t file against
- The president of India/ the governor of a state.
- The state legislature to prevent them from considering enacting a law alleged be violative of a constitutional provision.
Case -; Gujarat State Financial Corporation v. Lotus Hotel, A.I.R 1983 SC 848
In this case financial corporation had an agreement with lotus hotel that they will release the fund so that the lotus hotel complete their construction work, but later on, they refuse to release the fund and then lotus hotel approach the Gujarat high court by using the writ to direct the authority to perform the public duty which is promised to perform.
3. Writ of certiorari
Writ of certiorari means “to be certified” under this writ the Supreme Court and high court give a command to their subordinate court for review. the Supreme court and high court check whether the judgment given by the lower is illegal or not. The writ of certiorari can be issued by the Supreme Court and high court for quashing the order which was already passed by the inferior courts.
Condition not to apply
- Lack of jurisdiction
- Excess of jurisdiction
- Unconditional jurisdiction
- Violation of Natural justice
And it was found by the court that there is illegal judgment then the SC & HC quashed that judgment.
4. Writ of Prohibition
The writ of Prohibition means “to forbid” or “to stop “which is also known as stay order. Writ of prohibition issued against the judicial and quasi-judicial body. And this writ of prohibition can only be issued by the superior court to lower court. It cannot be issued against the legislative and administrative authority etc..
Case -; Calcutta discount Co. Ltd v. ITO, A.I.R 1961 SC
It was held in this case that when the lower court or tribunal is shown decisively that they have acted in their excess jurisdiction, then the court will issue a writ of prohibition regardless whether this is an alternate remedy is available or not.
5. Quo- Warranto
This type of writ means “by what authority” or Warrant. This writ can be used to restrain any person from holding any public office to which he is not entitled. This writ requires a person to explain to the court that at what authority he holds the office.
Case -; Jamalpur Arya samaj sabha v. Dr. D. Ram A.I.R 1954 Pat 297
In this case, it was held the court refused to issue a writ of quo warranto and against a working committee of Bihar because that is a private association. And this writ is only issued when any person is holding public authority or governmental privilege.
CONCLUSION
The writ protects the right of a citizen by providing a faster constitutional remedy. The supreme court and High court have the power to issue a writ under article 32 and 226. Article 32 is also a fundamental right and it empowers the supreme court to issue the writ for the protection of violation of the fundamental right and under this, any person can directly move to the supreme court if there any violation of his fundamental right. And article 226 talks about the power of high court which is not limited as the SC. The ambit of article 226 is wider than the article 32 because it deals with the violation of the fundamental right and as well as for other purposes.
