Writs under the Constitution

Writs under the Constitution of India: All you need to know

/ Legal Articles / By

This article on ‘Writs under the Indian Constitution: All you need to know‘ was written by Risha Sharma, an intern at Legal Upanishad.

Introduction

In this article, the writs as provided for under the Constitution of India have been discussed briefly. The article provides an overview of the five writs mentioned under Article 32 and Article 226 of the Constitution: the writs of certiorari, habeas corpus, mandamus, prohibition, and quo warranto. These writs pave way for the enforcement of rights and compel the authorities to fulfill their requisite duties. The purview and application of the aforementioned writs as developed and stipulated by the Courts have been briefly touched upon by placing reliance on certain case laws for an enhanced understanding of the same.

What is a Writ?

A writ is defined as “an order or mandatory process in writing issued in the name of the sovereign or of a court or judicial officer commanding the person to whom it is directed to perform or refrain from performing an act specified therein,” or “an order issued by a legal authority with administrative or judicial powers, typically a court.” It is a formal order by a legal authority possessing administrative or judicial powers. The High Courts and the Supreme Court are vested with writ jurisdiction under Articles 226 and 32 respectively. The five writs mentioned therein are certiorari, habeas corpus, mandamus, prohibition, and quo warranto.

Different types of writs under the Constitution of India:

1- Certiorari

Defined as “to be certified”, the writ of certiorari aids the rescinding of a judgment by a lower court or tribunal. It can be invoked against judicial or quasi-judicial orders. The SC in Hari Vishnu Kamath v Syed Ahmed Ishaque delineated the writ’s application. The appellant and the respondents were nominated for election to the House of People in a Madhya Pradesh Constituency. The first respondent secured 301 votes more than the appellant, who filed an election petition to nullify the election, contending that such votes were to be rejected as the ballot papers failed to have mandatory distinguishing marks.

The Election Commission dismissed the petition and so, the appellant approached the Nagpur HC under Articles 226 and 227 for the issuance of a writ of certiorari to quash the Tribunal’s order due to lack of jurisdiction. Dismissing the petition, the HC maintained that the Tribunal was within its jurisdiction while giving out the order. The appellant then approached the Supreme Court under Article 132(1). The major issue before the SC was whether the High Courts possessed jurisdiction to issue writs under A.226 against the Election Tribunal’s judgments. Relying on several authorities, the SC laid down the following principles:

  1. The writ can be employed for correction of jurisdiction when a lower court or a tribunal oversteps its jurisdiction, proceeds without jurisdiction or fails to exercise it.
  2. The writ can be issued to counter illegal proceedings of the lower court or tribunal exercising their jurisdiction, wherein the parties are not given an adequate opportunity to be heard, or when the principles of natural justice are disregarded.
  3. The Court that issues such a writ exercises its supervisory jurisdiction, not appellate.
  4. The writ can be utilized to correct an erroneous error of law.

2- Habeas Corpus

Translating to “to produce the body,” this writ helps request a court for ordering the State to bring an individual who is supposedly illegally detained or imprisoned. It empowers the court to assess the legality of an individual’s detention by another person, institution, or authority. This operates in the light of Articles 19 and 21. The writ is inapplicable to:

  1. lawful detention,
  2. contempt of court or legislature proceedings,
  3. detention by a competent court,
  4. detention beyond the court’s jurisdiction.

The SC succinctly described this writ in Kanu Sanyal v District Magistrate, Darjeeling. The petitioner was incarcerated in the District Jail, Darjeeling. Later, the petitioner was imprisoned in the Central Jail after the issuance of a warrant by the Special Magistrate. The petitioner argued that he was illegally detained at the District Jail and that the concerned Magistrate lacked the jurisdiction to try the offenses in question.

Dismissing the petition, the Court observed that habeas corpus is ineffective where“… person is committed to jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction wholly illegal…” Thus, the writ of habeas corpus is a “prerogative writ and an extraordinary remedy,” and a “writ of right and not a writ of course”.

Writs under the Constitution
Writs under the Constitution

3- Mandamus

Referring to “mandatory fulfillment of someone’s duty”, the writ of mandamus obligates an individual to perform duties entrusted to him when he fails to exercise powers. The fundamental concept is to fortify existing rights and to enforce duties established by the law. Being remedial, it serves to keep authorities in check to avoid violation of citizens’ fundamental rights. Under this writ, the judiciary cannot consider making policy decisions. Election procedures do not fall under this. Only when there is a violation of rights by the government can the judiciary act on this writ.

This writ is not applicable:

  1. against a private individual or body,
  2. to enforce departmental instruction that does not possess the statutory force,
  3. when the duty is discretionary and not mandatory,
  4. to enforce a contractual obligation,
  5. against the President of India or the State Governors; and
  6. against the Chief Justice of the High Court acting in a judicial capacity.

4- Prohibition

A writ of prohibition is issued to a lower court or body to halt the proceedings being carried out in excess or lack of jurisdiction. This writ is available for ongoing proceedings, i.e., before the final order is passed. Referred to as a “stay order”, this writ is preventive and based on “prevention is better than cure”.

The SC in the Hari Vishnu Case stated that the writs of certiorari and prohibition had the common objective of “…restraining of inferior courts from exceeding their jurisdiction, and they could be issued not merely to courts but to all authorities exercising judicial or quasi-judicial functions,” but the key difference was that “… they are issued at different stages of the proceedings. When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the Superior Court for a writ of prohibition” effectively, terminating the proceedings, meanwhile, “if the Court hears that cause or matter and decides, the party aggrieved would have to move the Superior Court for a writ of certiorari…” thereby quashing the decision.

5- Quo Warranto

Roughly translating to “by what authority or warrants”, this writ is issued when the judiciary seeks to regulate the exercise of executive power in the appointment of public officers per the applicable statutory provisions. This writ against a public officer requires them to demonstrate the statutory provision(s) from which they derive authority. It allows the court to inquire into the legality of the claim of a person to public office. As a result, it prevents the person from illegally assuming a public office. This writ can be invoked by any interested person.

Once invoked, this writ grants the judiciary “a weapon to control the executive from making appointments to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the Executive or because of its apathy.” This writ is strictly limited to a substantive public office being wrongfully occupied.

Suggestions

Integrated to realize the right to constitutional remedies, the writs as mentioned under the Constitution have been time and again called for and utilized to uphold the fundamental rights of the citizens. The Constitution itself demarcates the significance of the separation of powers between the executive, legislature, and judiciary, and as a result, the judiciary must not intervene in the functioning of other organs. This boundary is overstepped sometimes by judicial overreach by admitting certain writs, which calls for a greater need for judicial restraint to maintain an equilibrium with the other organs of the state and to preserve its independence.

Conclusion

Article 32 of the Indian Constitution grants the power to issue writs to the Supreme Court and Article 226 to High Courts. These writs are orders issued by the Courts to a public authority that must perform an act. The scope and nature of these writs permit the smooth functioning of society by preventing or correcting errors made in the law by authorities, be they judicial or quasi-judicial authorities. These writs are significant for the enforcement of the fundamental rights of the citizens and for broadening the scope of judicial review, by taking into account the principles of natural justice.

List of References:

Join Our Community

Enter your email address to register to our newsletter subscription delivered on regular basis!
Please enable JavaScript in your browser to complete this form.