Introduction
In the Indian legal system, writs are considered to be an essential tool for safeguarding the fundamental rights of citizens. These writs serve as a legal remedy for individuals to seek justice against any violation of their fundamental rights by the state or any other authority.
The term ‘writ’ is derived from the Old English word ‘writan’, which means to ‘write’. In simple terms, a writ is a written order issued by a court directing a person or an authority to perform a specific action or refrain from doing something.
According to Lord Halsbury,
Writs can be called those extra ordinary remedies which are issued upon cause shown in cases where the ordinary legal remedy are inapplicable or inadequate.
Who can issue five writs under the Indian Constitution?
Under Article 32 and 226 the Constitution of India confers power upon the Supreme Court and the High Court’s respectively for issuing writs.
There are following kinds of writs under the Indian Constitution.
- Habeas Corpus
- This writ lies when a person has been detained unlawfully.
- It may be used to secure release of a person from confinement without legal justification.
In the case of Kanu Sanal v. District Magistrate (1983) the Supreme Court has held that while dealing with the writ of habeas corpus, production of the body of the person allegedly to be unlawfully detained was not essential.
Who can apply for this writ?
The general rule is that an application has to be filed by the person who is illegally detained. But in certain cases, an application for habeas corpus can be made by any person on behalf of the petitioner, i.e., his friend or a relation.
It is to be noted that the writ of habeas corpus cannot only be used for releasing a person illegally detained but it will also be used for protecting him inhuman treatment inside the jail.
- Mandamus
Mandamus is a judicial remedy which is in the form of an order from a superior court to any
- Court
- Corporation
- Government
- Public authority
To do or not to do some specific act which that body is obliged under the law to do or refrain from doing, as the case may be
It is in the nature of a public duty and in certain cases of a statutory duty.
The duty sought to be enforced should have three qualities:
- It should be a duty of public nature.
- It is created by the provisions of Constitution.
- It is a rule of common law.
- Quo warranto
By issuing the writ of quo warranto the Court seeks information from the person to whom it is issued as to the warrant or authority by which the said person supports his right to-
- An office
- Franchise or
- Liberty
In the case of R v. Green it was held that the writ of quo warranto can’t be issued unless the defendant is in actual possession of office and exercises the office.
- The holding of liberty as a matter of fact is a condition precedent to the determination of a right to the same and calling up of information with regard to it.
- A motion for a writ of quo warranto can be made at the instance of private person although he is not personally aggrieved or interested in the matter.
- The motion does not requirement of the Government or any public authority.
- Certiorari
It is a command or the order by the superior court to an inferior court or tribunal.
The object is to transmit a record or cause or matter pending before them to the superior court and not to proceed with the case which is not within its jurisdiction and also to quash any order passed by the court in such a case.
Essential conditions before the writ of certiorari
- Order of inferior court-
- Authority acted without jurisdiction
- Violation of natural justice
- Error
In the case of Gujarat Steel Tubes v. Mazdoor Sabha (1980) it was clarified that every error can’t be corrected because it is wrong. It can be quashed only if it is vitiated by the fundamental flow of gross miscarriage of justice, absence of legal evidence, perverse misreading of facts, serious errors of law on the face of order, jurisdictional failure.
- Prohibition
It is issued by a higher court to a lower court or tribunal, prohibiting it from exceeding its jurisdiction or acting in excess of its powers. This writ is used to prevent an inferior court or tribunal from continuing with a case that is outside its jurisdiction.
Some key features of the writ of prohibition are:
- It is a preventive measure and is issued before any action is taken by the lower court or tribunal.
- It is a discretionary remedy and is not available as a matter of right.
- It can only be issued against judicial or quasi-judicial authorities and not against administrative authorities.
In the case of State of West Bengal v. Committee for Protection of Democratic Rights (2010):
In this case, the Supreme Court held that the writ of prohibition can be issued against an administrative authority if it is exercising judicial or quasi-judicial functions.
In the case of State of Bihar v. Ramjee Prasad (1995) the Supreme Court held that the writ of prohibition can be issued against a court or tribunal even if it has not yet passed any final order, but has taken steps that are beyond its jurisdiction.
In A.K. Roy v. Union of India (1982) the Supreme Court held that the writ of prohibition can be issued against a court or tribunal if it has acted in violation of the principles of natural justice.
Significance of Writs under the Constitution
Writs under the Constitution play a crucial role in safeguarding the fundamental rights of citizens in India. They provide a speedy and effective remedy against any violation of these rights by the state or any other authority. Writs are also essential for maintaining the rule of law and ensuring that public officials perform their duties in a fair and just manner.
Moreover, writs are an important tool for judicial review, which is necessary for upholding the principles of separation of powers and checks and balances in a democracy. They act as a check on the powers of the executive and prevent any abuse of power.
Conclusion
In conclusion, five writs under the Constitution serve as a powerful tool for protecting the fundamental rights of citizens. They provide an effective remedy against any violation of these rights and ensure that justice is served. The availability of writs in India is a testament to the country’s commitment to upholding the rule of law and protecting the rights of its citizens.
