This Article is written by Hitakshi Maggo, student of Fairfield institute of Management and Technology, New Delhi.
Writ is a written document and its petition is an order by a higher judiciary to a lower Court for instructing them about doing something or stopping them from doing anything wrong. Basically this written document is a type of obligation or rule or command in the name of Court. In our Indian constitution there are several powers given to the High Court and Supreme Court. According to Article 32 of Indian Constitution, the Supreme Court has power to issue writ. In case you know that your fundamental rights are getting violated by someone you can directly approach the Supreme Court under Article 32 of constitution. This is a right of every citizen whose fundamental rights are violated to Approach Supreme Court and for enforcing this right or fulfillment of this right the Supreme Court can issue appropriate writ for the same. Not only the Supreme Court, High Court has the right to issue writ as per Article 226 of Indian Constitution.
Now you may wonder what is the difference between Article 32 and Article 226 of Indian Constitution. When you have issues like your fundamental rights are violated you can approach both the Courts as per these articles, but on one hand where Supreme Court under Article 32 can only exercise this power when someone’s fundamental rights are in issue, on the other hand under Article 226 High Court can exercise this power as in any matter it means, you can approach High Court for any matter rather than Supreme Court who deals with issues related to fundamental rights as per this power.
Now as per our law system we have 5 writs, as follows-
This writ is issued where a Court comes to know that a person is illegally detained. This writ means, “To have the body” and this is a kind of writ which also indicates the right of personal liberty. When a person moves to the Court while enforcing this writ, the Court orders the officials to produce the person/ arrested person before them for further examination whether the detention of that person is illegal or legal. For instance if the Court got confirmation and convinced by the examination that the detention of the person is illegal then Court can issue his acquittal or release, that’s why this writ is known as you may have the body. This writ is enforceable when a person is brought before the magistrate in other words a judge. This writ is useful for detecting wrongful detention of any prisoner in other words as per our law system a detention or conviction of a person without considering sufficient cause of action or evidence is unlawful detention. This can be enforceable in such cases by the same person or its representative.
In this writ, Court orders the authority who detain such a person to provide appropriate grounds and evidence on the basis of which they detained him and if the authorities failed to provide such information or grounds then Court considered it as unlawful detention and against the right of personal liberty, and held a release of such person. For enforcing the rights there are some rules regarding the same, firstly the person should be detained in custody by someone, secondly as in above readings we found that a person who detained and their representatives/ relatives can file the petition but also any stranger can file the same if it is in best interest of public, thirdly Both Formal and informal form of writ petition can be filed, fourth suppose if the petition is rejected by one judge then a person can not file the petition in the same Court again and if he do so then the application of res judicata enforced and the petition will rejected, fifth this writ can be filed when a person got arrested without any due procedures prescribed in the formation.
VeenaSethi v. State Of Bihar AIR 1983 SC 339
Under this case, the Court got a letter from someone informing that some of the prisoners are illegally detained because at the time of trial they are insane but after some time subsequent they were represented as sane and are detained for 20-30 years in a prison. After examination, the Court directed them to be released forthwith.
As we notice that sometimes the government officials, tribunals, public officers, or in other words government machineries do not work properly in the way they are obliged to do their work, and for this purpose writ of Mandamus is there. Mandamus is derived from a Latin word which is called as “we Command” hence, as per this writ superior Courts ordered a lower Court or tribunal or public officials to properly perform such act in issue which is in the duty boundaries of the official body. It is a writ because it was issued for a protection of private rights while ordering to perform a public duty to authorities. But this writ is totally based on discretionary power of the Courts no one can execute this as their right it is solely based on the discretion of Court. As per this writ, it clearly shows that public officials and authorities are a backbone of a society or State and hence for the same they are responsible for lawful performance of their public duty. If the official forgot to fulfill his duty then as per law Mandamus guided them to do such act.
There are some grounds on the base of which this writ can be issued,
- The purpose of the writ is to secure and ensure the rights of citizens and if at the time of filing a petition if a person has no right recognised by law then this writ can’t be enforced.
- Only on the basis of having rights this writ can’t be enforced. For the fulfillment of the purpose of writ the right which is recognised by law has to be violated or infringed.
- The purpose of this writ is to order the authority to do a particular task or work and for the same it is important that a person who’s right violated asked the authority to do their work but due to non performance of the same the person suffers.
- Then there is a point which States that petitioner who files the petition has no further alternative ground left to ask the authority for their performance then this writ can be enforced.
- If the authorities have discretionary power to perform that act then the writ of Mandamus can not be issued but yes if the duty is mandatory to be performed by the authorities then a. Writ of Mandamus can be issued by a Court.
Vijaya Mehta v. State of Rajasthan AIR 1980 RAJ 207
Under this case the petition was filed against the State that they failed to appoint a commission for looking after the change in climate and the flood in the State. But the High Court States that after the passing of resolution by legislature, the State government has to appoint a commission and also this is a discretionary power not mandatory that’s why the petition can not be entertained and writ of Mandamus not been issued by the Court.
Certiorari is a writ which is issued to correct the records. It is a writ issued by superior Court to its subordinate Court, in case where a superior Court concludes that there is an excess of jurisdiction by inferior Court. Whenever there is a lack of natural Justice or fundamental rights are violated in any procedure taken by an inferior Court then superior Court can quash the same in the interest of justice. But there are some conditions to be fulfilled for the same, firstly the person has authority legally, secondly such authority who have powers are in relation to determine the questions which directly affects the rights of others, thirdly such Authority has Judicial power to act judicially while performing its functions, fourthly such person acted beyond or excess its jurisdiction.
Certiorari can be issued on a grounds like when there is an excess use or abuse of jurisdiction powers of inferior Court then superior authority can quash the same to correct the subordinate authority, when there is a violation of natural justice audialterumpartem which is a best and important right given by our constitution then the superior Court can issue this writ, or if there is an error in records.
Province of Bombay v. Khushaldas AIR 1950 SC 22
Under this case it was held that, whenever a person have authority or a legal authority to determine the questions or issues affecting the rights of another person and also have obligation or duty to act in judicial manner but acts in excess of their powers or jurisdiction then this writ of certiorari lies. This writ lies a fundamental principle to adjudicate or to correct the validity of such judicial acts of inferior Courts by superior Court.
Quo Warranto means by what authority. In common words this writ issued where the question lies on a private person by what authority he resides on his post. When a person possesses an office in which he has no right by law or by any means then this writ is issued by the Court but it is a discretionary power of the Court that whether they want to issue this writ or not, no one can bound the Court to do so.
There are some conditions to be fulfilled while issuing such writ, firstly the office assumed by person is a public office, secondly office be created constitutionally or by any statute, thirdly there should be public natured duty lies on office, forth office should be of permanent nature and which can’t be terminated on basis of pleasuring any authority or person, fifthly the person must uses such office and have possession of the same too, sixthly this writ also lies in case where a person previously had all the authorities of the office but after getting disqualified from the office person still possess the same.
Niranjan Kumar Goenka v. The University of Bihar, Muzaffarpur AIR 1973 PAT 85
Under this case it was held by the Court that, in case where a person is not holding powers or where a person who is not possessing a public office, no writ of Quo Warranto lies against him and also the Court can not issue Quo Warranto in case of person not holding public office.
Writ of prohibition is also known as a stay order which means to forbid. This writ is generally issued in such cases where superior Court wants to stop the proceedings of lower Court or say it is a writ issued by superior Court to inferior Court for stopping them from deciding a case because they are exceeding their power of jurisdiction. If a Court has no power or jurisdiction to hear a case and still that Court gives their decision then it is in violation of law. In this writ the superior Court issues the writ when the proceedings are pending hence it is a preventive measure.
- Govind Menon v.. Union Of India AIR 1967 SC 1274
As per this case, prohibition is not a continuance of the banned conduct. Its goal, on the other hand, is to halt the lesser tribunal’s operations.
- INDIAN CONSTITUTION (SINGHAL’S PUBLICATION)
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- Pushkraj, Articles 226 and 227 of the Constitution of India, 12 April 2018, mondaq, https://www.mondaq.com/india/Court-procedure/691090/articles-226-and-227-of-the-constitution-of-india-their-scope-powers-and-differences
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