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Writs 2

The document discusses writs in the Indian Constitution under Articles 32 and 226. It defines five types of writs - habeas corpus, mandamus, certiorari, prohibition, and quo warranto. Habeas corpus prevents unlawful detention, mandamus commands public authorities to perform duties, certiorari transfers cases or quashes illegal orders, prohibition prohibits lower courts exceeding jurisdiction, and quo warranto questions authority to hold public office. The Supreme Court and High Courts are authorized to issue writs to protect fundamental rights, with some differences in their jurisdictions.

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56 views5 pages

Writs 2

The document discusses writs in the Indian Constitution under Articles 32 and 226. It defines five types of writs - habeas corpus, mandamus, certiorari, prohibition, and quo warranto. Habeas corpus prevents unlawful detention, mandamus commands public authorities to perform duties, certiorari transfers cases or quashes illegal orders, prohibition prohibits lower courts exceeding jurisdiction, and quo warranto questions authority to hold public office. The Supreme Court and High Courts are authorized to issue writs to protect fundamental rights, with some differences in their jurisdictions.

Uploaded by

Sarvika
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Writs in Indian Constitution

[UPSC Notes]

What is a Writ?
The supreme court and high court of India are authorized to issue five types of writs,
under Articles 32 and 226 respectively. In fact, under Article 32, the supreme court can
empower any other Court to issue the writs. But there has been no provision made so
far by the court of law therefore to date only the supreme court and the high court of
India can issue the writs. Earlier the high courts of Bombay Madras and Calcutta had
the power of issuing these writs, but after 1950 under Article 226 all the high courts
were eligible to issue the writs.
The concept of writs has been taken from England where it is known as prerogative
writs. In England, the writs were issued in the exercise of the prerogative of the king
who is still considered the Fountain of Justice. Later on, the high courts started to issue
the writs as an extraordinary remedy to uphold the liberties of the Britishers.

Writs in Indian Constitution - Article 32 and Article 226

Before we proceed towards the details of writ, and their types, it is important to learn
about Article 32 and 226 in detail.
Writ Article 32
• Article 32 is drafted to protect the fundamental rights of people effectively,
expeditiously, inexpensively, and in a guaranteed manner.
• Under Article 32, the only included rights are the fundamental rights.
• Apart from that, no other rights like customary rights, non-fundamental rights, or
statutory rights are included in it.
• If a fundamental right is violated, then it comes under the category of sine qua
non, and Article 32 can be exercised on it.
Writ Article 226
• Article 226 works the same as the supreme court does. The supreme court of
India is not the only authorized body to facilitate the enforcement of fundamental
rights.
• The high courts are also vested with an equal level of powers by the supreme
court. The high courts are authorized to issue the directions, orders, and writs of
all types of enforcements for fundamental rights.
• This simply means that if the fundamental rights of any citizen are violated, then
the victim can freely move to the high court for help and high courts are bound to
provide help to them.

Types of Writs
The supreme court and high court of India are extremely powerful and obliged to protect
the fundamental rights of citizens of India. For this, they can issue five types of writs to
enforce the fundamental rights of the people of India. These five writs are explained
below-
1. Habeas Corpus
2. Certiorari
3. Mandamus
4. Prohibition and
5. Quo-warranto.

Writ of Habeas Corpus


The term Habeas Corpus is a Latin word that means 'to have a body of'. Writ of Habeas
Corpus is used to prevent the unlawful detention of the people. Using Habeas Corpus,
the person can save the fundamental right of individual liberty. If one person has
unlawfully arrested another person, and if a complaint is filed against the former for the
detention of the latter, then the court can ask the person who has detailed the body
before the court of law.
• The pre-condition for issuance of Habeas Corpus by courts is that the person
should have been confined and such confinement should be illegal.
• Habeas Corpus is used for safeguarding individual freedom against arbitrary
state action which violates Fundamental Rights guaranteed under the
Constitution.
• It is well settled that even if fundamental rights are suspended during
Emergency, the right to move the High Court under Article 226 and the Supreme
Court under Article 32 is not suspended and therefore the High Court and the
Supreme Court could be moved in such a situation.
• Both the Supreme Court and the High Courts can issue writs of Habeas Corpus
against both public and private authorities.

Writ of Mandamus
Mandamus means ‘we command’. Mandamus is an order from the superior court
(Supreme Court or High Court) to a lower court or tribunal or public authority to perform
a public or statutory duty. Writ of Mandamus is issued against public officials if he fails
to perform their duties. It can be issued for public corporations, public bodies, tribunals,
inferior courts, etc.

Mandamus Writ cannot be issued against-


• A private individual or private body.
• Department instruction that is not statutory.
• Cannot be issued if the job is discretionary.
• President and Governor.
• Chief justice in a judicial capacity.
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.

Writ of Certiorari
Certiorari means to be certified. Writ of Certiorari is issued by a Higher Court to the
Lower court to order the transfer of its cases to it or the Higher Court can overrule the
order of the lower court in the particular case. Certiorari is used to quash directions/
orders of a tribunal or inferior courts, which has assumed jurisdiction, it does not
possess or where the order contains an error of law apparent on the face of the record.

• Also, Certiorari writ is to provide justice when a lower court exercises power over
its jurisdiction or lack of jurisdiction.
• Prohibition promotes prevention while Certiorari is curative.
• Writ of Certiorari also allows the court to transfer a case from the lower court.

The Supreme Court in 1991 ruled that this Writ of Certiorari can be issued against
public authority and also public authorities if they violate the rights of common people(in
certain cases). Certiorari cannot be issued against a legislative body, individual, etc.

Writ of Prohibition
The literal meaning of prohibition is to forbid. It is a Writ that is issued from a higher
Court to a lower court to prohibit itself from exercising its jurisdiction beyond limits. It
directs the lower courts to be inactive for exceeding its jurisdiction.
It can only be issued against a judicial or quasi-judicial body. Writ of Prohibition cannot
be issued against an administrative, legislative or private body.

The difference between Writ of Prohibition and Writ of Certiorari is that writ of
prohibition is available during the pendency of proceedings, whereas the writ of
certiorari can be resorted to only after the order or decision has been announced.

Writ of Quo Warranto


Quo-Warranto literally means ‘by what warrants?’ or ‘what is your authority’? Writ of
Quo Warranto can be issued against the public authorities, the legality of holding public
office. It is issued to restrain or refrain a person from holding a public office to which he
is not entitled to under the law.
• The writ of Quo-Warranto is issued to prevent illegal usurpation of a public office
by a person.
• It includes both the statutory and constitutional offices but it cannot be issued
against the ministerial office.
• The Quo-Warranto is issued by the court to check if the legal claims made by the
person in a public office are right or not. By this, the court protects a public office
from illegal claims made by people.
• It should be noted that Writ of Quo Warranto can be issued in the case of non-
ministerial or private offices like any substantive public office which is created by
statute or by law.

Writ Jurisdiction of Supreme Court vs High Court


Following are the differences in writ jurisdiction between the Supreme Court and the
High court.

Supreme Court High Court


The Supreme Court may issue writs A high court may issue writs only against a
against a person or government person residing within its territorial
throughout India's territory. jurisdiction or against a government or
authority located outside its territorial
jurisdiction.

For the enforcement of only The high court can issue writs not only for
fundamental rights, the Supreme the enforcement of fundamental rights but
Court can issue the writs. also can issue Writs for any purpose.

The Supreme Court may not refuse A high court may refuse to exercise its writ
to exercise its writ jurisdiction jurisdiction because a remedy according to
because a according to Article 32 is Article 226 is discretionary.
a fundamental tight in and of itself.

Important Judgements Related to Writs


1. ADM Jabalpur V/s Shivakant Shukla case- This case is also known as the
Habeas Corpus case in which the Supreme Court ruled that the Habeas Corpus
writ cannot be suspended even at the time of emergency.

2. Barada Kanta V/s State of West Bengal case- In the Barada Kanta V/s
State of West Bengal case the Supreme Court ruled that the Mandamus Writ cannot be
issued against private individuals or officials.

3. Surya Dev Rai V/s Ram Chander Rai and Others case- In this case, it
was held that only against an inferior court and not against any higher court or court of
the same hierarchy, a Writ of Certiorari can be issued.

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