“TYPES OF WRITS AND THEIR IMPORTANCE”

Auhtor: Aditi Bansal,

Law College Dehradun, Uttarakhand



INTRODUCTION

A ‘writ’ is a formal order, judgement or direction issued by the Court to order a particular set of actions to be performed or to put a stop on their performance. In India, the Supreme Court and High Courts are empowered by the Constitution to issue writs for the enforcement of Fundamental Rights that have been laid down in Part III of the Indian Constitution. Writs sometimes act as remedies which are issued by the courts in case any person’s Fundamental Right is being violated, or is not being enforced due to any obstacles. The Supreme Court has the jurisdiction under Article 32, whereas the High Court has the jurisdiction under Article 226 of the Constitution of India. The Supreme Court also has writ jurisdiction under Article 139 of the Indian Constitution of India, according to which, it can issue these writs for purposes other than the enforcement of Fundamental Rights, listed under Part III.


TYPES OF WRITS

In discharging the duties assigned to protect fundamental rights, the Supreme Court plays a very significant role, and takes it zealously and vigilantly, as per the case of Daryao v. State of U.P.[1] There are five types of writs which can be issued by either the Supreme Court or the High Courts as per the need of the situation. These writs are discussed in detail below:


Habeas Corpus: The literal meaning of the Latin term “Habeas Corpus” is ‘you may have the body.’ This writ acts as a remedy for a person who has been falsely imprisoned or detained and has not been made to appear in front of the Magistrate within 24 hours of being in custody. The writ’s main focus is on getting the unlawfully detained person released. This is a very valuable writ which safeguards the personal liberty of an individual. The Supreme Court can issue the writ of habeas corpus against the State for violation of fundamental rights. The High Courts can issue this writ against private individuals as well who illegally or arbitrarily has been detained by another individual. This writ petition can be filed by the detained person or by another person on his behalf. Some landmark cases are State of Bihar v. K.P. Verma[2] and G. Sadanandan v. State of Kerela[3], concluding that, “the freedom of Indian citizens cannot be taken away without the existence of the justifying necessity specified by the Rules themselves.”


Mandamus: The Latin maxim Mandamus means ‘to command’. This writ acts as a remedy by ordering to legally abstain from doing an unlawful act. If a person’s legal right casts a certain legal obligation on another person, then that person is bound by law to fulfil that obligation. In this case, the person with the right can also get the writ of mandamus issued against the person with the obligation to perform his legal duty. The writ can be issued by the Supreme Court to enforce someone’s fundamental right when being violated by some order or act of the government. The High Courts can issue it to order the government not to enforce any unconstitutional law, to compel any person to discharge duties cast on him by the Constitution or the statute or to direct an officer to exercise his constitutional and legal powers or to compel a judicial authority to exercise its jurisdiction. Some landmark cases are Guruswami[4] v. Mysore and Samir Kumar v. State of Bihar[5], in which it was held that applications for admission cannot be rejected on the ground of futility.


Quo Warranto: The literal meaning of this Latin term is ‘by what authority.’ It is issued against a person who claims or usurps a public office. Through this writ, the court inquires 'by what authority' the person supports his or her claim. It can be issued against offices created by the Constitution like the Advocate-General, the legislative assembly speaker, local government board members, etc. but it will not be issued against the managing committee of a private school which has not been appointed under the authority of a statue. Some landmark decisions are of Ram Singh Saini v. H. N. Bhargava[6] and Arun Kumar v. Union of India[7].


Certiorari: ‘To inform’ is the meaning that the Latin term Certiorari conveys. It is a judicial order that may be issued against constitutional bodies, statutory bodies like a corporation, non-statutory bodies like companies, cooperative societies, etc. It is a curative writ that can be issued by the Supreme Court to a Lower Court or any other body to not transfer but quash the decision of the High Court. It is issued to lower courts or tribunals by the High Courts. Also, the High Courts can issue it when there is an error of jurisdiction or law.


Prohibition: As the name suggests, the literal meaning inferred from this writ is ‘to put a stop or to forbid.’ This writ is mainly issued to protect an individual from arbitrary administrative action. It lies against an authority discharging judicial functions. It is issued to Lower Court like a ‘stay order’, to stop acting beyond its powers. The Supreme Court and High Courts issues it when a quasi-judicial authority or a lower court violates the powers vested in it and continues its proceedings in a case.


IMPORTANCE OF WRITS

The power to issue writs is one of the greatest aspects of the Indian Constitution and is vested upon the Supreme Court and High Courts. In the present era where government actions prevail, the procedure to obtain speedy remedy for the violation of legal rights of citizens has become a necessity. The writ system is one of the ways to access speedy and effective redressal against ultra vires actions of the executive. The writ system in the Indian Constitution is considered as an act of wisdom of the framers of the Constitution. It falls under the ambit of public law. The due process for such writ petitions is not simply criminal or civil. The reason is that, it incorporates the presumption of non-authority. This is done, so that the respondent, i.e., the official has the burden to prove his authority to do or not do something. Here, they differ from a motion in a civil process in which the burden of proof is on the movant. The writs also provide expeditious and inexpensive redressal to illegal actions.


CONCLUSION

Writs are crucial to protect fundamental rights as, without them, Part III would be meaningless. It can be said that writs give teeth to the rights. Writs are powerful checks against the State or its instrumentalities as defined under Article 12, as it keeps a track of excesses committed by it. Using them, judiciary has interpreted many other rights as inseparable adjuncts to other fundamental rights. Their significance lies in creating a permissible area of exercise of power, authority and jurisdiction over administrative actions enforced by any State. They act as a very strong backup that can always be relied on in case of violation of a person’s rights that have been given under Part III of the Constitution of India. They act as a catalyst to ensure speedy enforcement of fundamental rights.

“Ethics is knowing the difference between what you have a right to do and what is right to do.”

By: Potter Stewart




[1] AIR 1961 SC 1457 [2] AIR 1965 SC 575 [3] AIR 1966 SC 1925 [4] AIR 1954 SC 592 [5] AIR 1982 Pat. 66 [6] AIR 1975 SC 1852 [7] AIR 1982 Raj. 67

43 views
jw.jfif
  • Facebook
  • Instagram
  • Twitter
  • LinkedIn

© All Rights Reserved