Writs In the Indian Constitution: Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo-Warranto
- The concept of writs has been borrowed from English Law, where these laws were known as ‘Prerogative writs.
- In England, these ‘Prerogative writs’ were issued on the prerogative of the king who was, and is still known as ‘fountain of justice’.
- Later these writs were being also issued by the High Courts for upholding the rights and liberties of the British People.
- The Supreme Court of India is the defender of the basic fundamental rights of the Indian citizens, and for this, it has been given original and wide powers by the constitution of India.
- The constitution of India under Article 32 empowers the Supreme Court of India to issue writs.
- The constitution of India under Article 226 empowers the High Court to issue writs.
- The Supreme Court and the High Court can issue writs of five types for enforcement of fundamental rights of citizens of India.
- The five types of writs are - Habeas Corpus, Certiorari, Mandamus, Prohibition and Quo Warranto.
- The Parliament of India also has the authority under Article 32 to empower any other court to issue above-mentioned writs.
- Till date, there has not been any instance in which the Parliament has given the power of issuing writs to any other court. Hence, no other court than the Supreme Court or the High Court in India can issue writs.
- Before 1950 only the High Courts of Bombay, Calcutta and Madras had the writs issuing powers.
- However, after 1950 all the High Courts were empowered to issue writs under Article 226.
Types of Writs in India
The five types of writs are as appended below:-
- Writs of Habeas Corpus
- Writs of Prohibition
- Writs of Mandamus
- Writs of Certiorari
- Writs of Quo-Warranto
- The literal meaning of ‘Habeas Corpus’ is actually ‘To have the body of.’
- This is issued by the Supreme Court or the High Courts against unlawful detention and for enforcement of fundamental rights guaranteed under the constitution.
- Under the writs of Habeas Corpus, the Supreme Court or High Courts can issue orders for one person who has been detained, to bring the individual in physical before the court.
- Both the Supreme Court and the High Courts can issue writs of Habeas Corpus against both public and private authorities.
- The writs of Habeas Corpus can not be issued by the Supreme Court or the High Courts in cases when the detention is lawful or during the proceeding for contempt of a legislature, or court or detention is by the orders of a competent court or detention is outside the writ jurisdiction of the court.
- The literal meaning of writ of Mandamus is ‘We command.’
- It is issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly.
- Apart from a public official, the writ of mandamus can be issued against any other public body, corporation, tribunal, an inferior court, or government.
- The writ of mandamus cannot be used against private individuals.
- The writs of mandamus can not be issued by the Supreme Court or the High Courts to enforce departmental instructions or to order someone to do some discretionary work which is not mandatory under her/his duties or for a contractual obligation or against the President, State Governors and chief justice of a high court.
- The literal meaning of writ of Prohibition is ‘To forbid.’ It is issued by a higher court against a lower court to prevent the latter from usurping a jurisdiction or exceeding its jurisdiction that is not possessed by the lower court.
- It directs the lower courts to be inactive for exceeding its jurisdiction.
- The writs of Prohibition can be issued by the Supreme Court or the High Courts only against quasi-judicial or judicial authorities.
- The writs of Prohibition can not be issued by the Supreme Court or the High Courts against legislative bodies, administrative authorities and private bodies or individuals.
- The literal meaning of ‘Certiorari’ is ‘To be informed’ or ‘To be certified’.
- It is issued by a higher court against a lower court or tribunal instructing them either to squash their order in a case or to transfer a case pending with them to itself.
- It is issued on the basis of an excess of jurisdiction or error of law or lack of jurisdiction.
- Before 1991 the writ of certiorari was used only against quasi-judicial and judicial authorities and not against any administrative authorities.
- However, after 1991, the writ of certiorari can be issued against any administrative authorities also, which is affecting the rights of individuals after the orders of the Supreme Court ruling issued in this regard.
- The literal meaning of ‘Quo-Warranto’ is ‘By what warrant or authority’.
- The writ of Quo-Warranto is issued to prevent illegal usurpation of a public office by a person.
- With this writ, the court can inquire into the legality of the claim of a person to a public office.
- The writ of Quo-Warranto can be issued only when the substantive public office created by a statute or by the constitution of a permanent character is involved.
- The writ of Quo-Warranto can’t be issued against ministerial office or a private person.
Difference in the Writ jurisdiction of the Supreme Court from the High Courts
- The High Courts can issue writs not only for the preservation of Fundamental Rights but also for any other purpose. However, the Supreme Court can issue writs only for the preservation of Fundamental Rights. Hence, the writ jurisdiction of the Supreme Court is narrow than that of the High Courts in this regard.
- The territorial jurisdiction of the Supreme Court is much wider as it can issue writs throughout the territory of India. However, the High Courts can issue writs within the territorial jurisdiction of the respective state.
- The Supreme Court can not refuse to exercise its writ jurisdiction as under Article 32 it is in itself a Fundamental Right. However, it is not mandatory for the High Courts to issue these writs as a remedy under Article 226 is discretionary.
Importance of writs in the Indian constitution
- It is important for the protection of the fundamental rights of the citizen of the country.
- It helps in checking the discretionary power of the executive.
- It helps in checking and correction of any error in the judiciary through writs of certiorari.
- It helps in as a balancing wheel while exercising power or authority by the state.
- It helps in the judicial review of administrative action taken by the state or any public authority.