Fundamental rights are the pillars of the constitutional law. Any violation of the fundamental rights guaranteed by the constitution may be questioned in the highest courts of the country, High Courts and Supreme Court. Such rights are called writ petitions.
A Writ means a command of the Court to another person or authority by which such person/authority has to act or abstain from acting in a certain way. This is a very important part of the judiciary and its powers.
The constitution of India provides the Supreme Court of India with the power to issue writs under Article 32 of the constitution. The article says, when the fundamental rights of the citizen is violated, he have the right to approach the Supreme Court directly for remedy. The remedy which can be given by the court will be a writ for enforcing such right.
High Courts also have the right to issue writs under Article 226. Here we need to understand a basic difference, in the matter of issuing writs, High Courts have more power than Supreme Court. The intervention of Supreme Court can be sought only when the fundamental rights are violated, but the High court can be approached even when other rights are violated.
In the case of Smt Imtiaz Bano Vs Masood Ahmad Jafri and Ors, the mother approached High Court under Article 226 to get the custody of her two children. The writ was filed was habeas corpus. The High Court allowed the petition and decided in her favour.
To make the position more clear when a fundamental right is violated a citizen can approach either Supreme Court or High Court, but if the violation is only a right and fundamental right, then he only can approach High Court. It is to be noted that on the infringement of fundamental rights, the citizen can approach either Supreme court or High court but if once the case is dismissed by one court, the case can not be filed with another court. But if the court is not deciding in the favour of the person he can file the case with the other court as appeal.
Types of writs
Habeas Corpus means ‘to have the body’ and it is one of the most effective remedies available to a person detained. The Writ of Habeas Corpus is issued by the Courts in those cases where a person is illegally detained.
By this Writ, the Court commands the person or authority who has detained or restrained another person to present such person before the Court. The Court requires the detaining person to provide the grounds on which the person has been detained and if he fails to provide a valid ground, the person who has been detained will be released by the Court immediately.
Illustration: Amal is wrongfully detained by a police officer. Amal writes to the High Court regarding the same. The High Court summons Police with Amal and asks the grounds for detaining Amal. If the police officer fails to provide a valid ground or justification for Amal’s detention, he will be freed.
This writ can be used only on wrongful detention, so no favourable decision can be expected when the detention is favourable. Also, if the Court orders the detention of a person then it does not amount to unlawful detention and this Writ cannot be issued. Writ application can be filed by either the person in. detainment or a
Rules regarding the Writ of Habeas Corpus
The following are the rules related to the writ of Habeas Corpus:
The person should be in custody of another
Ordinarily the detained person or his relative will fill file the writ petition but in the case of public interest even a stranger can file the petition.
Both formal and informal applications in respect of the writ is accepted by the Courts. For e.g. a writ application can also be made by postcard. In the case of Sunil Batra v. Delhi Administration, the Supreme Court had accepted the application made through a letter by a co-convict (a stranger) due to the inhuman treatment of prisoners. In this case, the letter was accepted as an application and the writ of Habeas Corpus was issued.
Multiple applications cannot be filed, if one court dismiss the application then he can not move to other court.
This Writ will also apply if an arrest is made by the police without following proper formalities and procedures.
A writ of mandamus or mandamus (which means "we command" in Latin), or sometimes mandate, is issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly
In India, the Supreme Court is the apex court, therefore it has the power to issue the Writ of Mandamus even against the High Court even though the High Courts have also been provided with the power to issue such Writs under Article 226. So, a High Court can issue this Writ under Article 226 only to the Inferior Courts such as the trial court of a district.
The writ cannot be issued against a private person, and can only be issued against the state or the people who hold any office which falls in the category of public office can be compelled to do or not to do any act.
One of the most important points about the Writ of Mandamus is that it cannot be issued against a private person and therefore only the State or the people who hold any office which falls in the category of a public office can be compelled to do or to abstain from doing an act.
Grounds for Mandamus
This Writ can be issued by the Courts on the following grounds:
The petitioner has a right recognized by law.
The right of the petitioner has been infringed.
The petitioner has demanded the authority to perform their duty but there has been non-performance of such duty.
The last essential ground for Mandamus is the absence of an effective alternative remedy which can be resorted to by the petitioner to enforce the duty of the authority.
The petitioner has to show to the Court that a duty is owed to him by the authority and such authority has not performed their duty.
The authority has many duties, some of which are mandatory and while some are left at their discretion to be performed. Thus, if an authority does not perform their mandatory duty, the Writ of Mandamus will be issued by the Court. But in cases of discretionary duties, the writ cannot be issued but the authority still has to act in good faith while deciding whether the discretionary duty should be performed or not.
he person whose right is infringed is allowed to apply for the Writs of Mandamus but after the Supreme Court adopted a liberal view and the advent of Public Interest Litigation in India, a public-spirited citizen can also apply for the issuing of the Writ of Mandamus on other people’s behalf. an application for Mandamus can be made not only by the affected people but also by those who want to enforce these Writs on behalf of others in the public interest.
Certiorari is a Writ which is issued by a superior court to an inferior court. This can be issued when the superior court wants to decide a matter in the case itself or if there is an excess of jurisdiction by the inferior court. This Writ can also be issued when there is a fundamental error in the procedure followed by the inferior court or if there is a violation of the principles of natural justice.
If the superior court finds out that there has been a violation of natural justice or a fundamental error on the procedure adopted, it can quash the order of that inferior court.
For the Writ of Certiorari the following conditions should be fulfilled:
The body or person has legal authority.
Such authority is related to determining those questions which affect the rights of the people.
Such a body or person has a duty to act judicially in doing its functions.
Such a person or body has acted in excess of their jurisdiction or legal authority.
When all these conditions are fulfilled, only then a Writ of Certiorari can be issued against the body or person who has acted in excess of their jurisdiction.
The Writ of Quo Warranto is issued by the courts against a private person when he assumes an office on which he has no right. Quo Warranto literally means ‘by what authority’ and it is an effective measure to prevent people from taking over public offices.
The Writ can be issued only when these conditions are fulfilled:
The office which has been wrongfully assumed by the private person is a public office.
The office was created by the Constitution or by any other statute.
The nature of the duties which arises from this office is public.
The term of the office must be of a permanent nature and it should not be terminable at any person or authority’s pleasure.
The person against whom the Writ is sought to be issued is in actual possession of the office and is using such office.
This Writ can also be issued in those cases where a person was entitled to hold the office earlier but after getting disqualified he is still in possession of the office.
Thus in cases where the office is of private nature, this Writ cannot be issued by the Court.
The last Writ which can be issued under the Constitution is the Writ of Prohibition. This Writ is not issued often and is an extraordinary remedy which a Superior Court issues to an inferior court or tribunal for stopping them from deciding a case because these courts do not have the jurisdiction.
If the court or tribunals does not have jurisdiction and it still decides the case, it will be an invalid judgement because for an act to be legal it should have the sanction of law. For e.g., if a District Court is hearing an appeal against the judgement of the High Court, such an act is bound to be prohibited because the District Court does not have the power to hear such an appeal. So, a Writ of Prohibition will be issued against such an act of District Court.
While considering Writ of Prohibition the following rules will be considered:
The Writ can be issued only when:
The inferior court or tribunal has overstepped its jurisdiction
The court or tribunal is acting against the provisions of law
In cases where the court is partly acting within its jurisdiction and partly outside it, the Writ will be issued against the act which is partly outside its jurisdiction.
The fact that the applicant has a right to appeal against the order of the inferior court will not be a bar to issue this Writ.
This Writ can be issued only when the proceedings are pending in the inferior court and not when an order has already been passed by that court. Thus, this Writ is a preemptive remedy which is exercised by the superior court to prevent the inferior court from acting outside its jurisdiction.
The Writ of Prohibition can be issued only against a judicial or a quasi-judicial body and it cannot be issued against any administrative body.
Both the Writs Certiorari and Prohibition appear to be the same but there is one major difference between the two. In the Writ of Prohibition, the superior court issues the writ before the final order is passed by the inferior court and therefore this is a preventive remedy, while in Writ of Certiorari the superior court issues the Writ after the inferior court has made the final order. Thus the Writ of Certiorari is a corrective remedy by which the order of the inferior court is quashed.