TYPES OF WRITS
Types of Writs:
There are five types of writs “Habeas corpus, Quo warranto, Mandamus, Certiorari and Prohibition
1. Habeas Corpus:
The Latin term habeas corpus means ˜you must have the body˜ and a writ for securing the liberty was called habeas corpus ad subjiciendum. The court hereby requires the person or authority that has detained a person to bring the prisoner’s body before the court so it can determine if the detention is legitimate, competent or justified. The main purpose of the document is to ensure that the possible illegal imprisonment of a prisoner or prisoner’s freedom or freedom is checked rapidly. The great benefit of the text is that it allows a person’s right to freedom to be decided immediately. According to Article 22, an arrested person is required, within 24 hours of his arrest, to be brought before the magistrate and the arrested person will have an opportunity to release himself. Habeas corpus could be issued if an individual under custody under the competent court order appears prima facie to be not without competence or wholly unlawful. Writing of habeas corpus can not only be invoked against the state, but also against any person who is detained or detained unlawfully. It is also the police’s obligation to make necessary attempts to ensure the release of detention, but if a person is not identified in these situations, then it cannot be exercised arbitrarily by the police to prevent him.
The Supreme Court ruled that the earliest date when the validity of detention is tested was the date when the petition for detention is made to the Court in Gopalan v. Government of India.
2. Quo Warranto:
The word quo warranto defines “what authority do you have?”. The quo warranto letter is used to monitor the executive action judicially when appointing to public offices in accordance with applicable statutory provisions. The document is also used to protect a citizen from the public office holder to whom he is not entitled. The letter calls on the public office holder to show the court under which authority the office is held. The Court may prevent him from acting in the office if he has no right to the office and may declare the post vacant. The written proceedings not only allow the executive to be controlled by the means of law enforcement, but also tend to protect the public against being denied the right to a public post.
Quo Warranto prohibits the individual from illegally usurping public office. The ingredients necessary to be satisfied by the court before issuance of the letter are that the bureau concerned shall be public, established by constitution or by law and that the holder of that office shall not be entitled to hold that office in clear violation of provisions of the constitution or law. It is the person who is directed against quo warranto who must show by what authority that the person is entitled to serve. The High Court merely issues a public statement of the illegal nature of the appointment during the issue of this letter and does not consider other factors that are relevant to certiorari’s issuance.
Mandamus is an authority order issued by a court to perform a public task which is imposed by law on it. For example, if an organisation fails to determine a matter that it must decide, it may be instructed to determine the same.
Mandamus may be issued if the government refuses to exercise its competence under the law or if a powerful authority unsurely refuses to exercise it. Mandamus has the function of keeping public authorities within their competence while carrying out public functions. In any type of capacity such as administrative, quasi-judicial, judicial Mandamus may be granted to any authority. Mandamus shall be used to enforce public functions of all types of functions by public bodies Mandamus shall not be issued if the government is not under any obligation under law. If a body fails to execute a court order, a mandamus may be issued to direct that body to execute it.
Thus, when the appellants’ tribunal approved the petitioners’ applications for permits, the corresponding authority was granted mandamus to issue permits to the applicant, in compliance with the tribunal’s order. Mandamus shall be issued to carry out an obligatory obligation not necessarily a legal obligation.
In the Bombay municipality v. Advance Builders, the Court has directed the town to implement an arrangement for planning it prepared and approved, but not for long, by the government under the respective Statutes.
4. Prohibition and Certiorari
The aim of these documents is to prevent public officials from exceeding authority. In the past, such records were only given to court and quasi-judicial authorities. In both quasi-judicial and administrative judgments concerning the privileges, Certiorari and Prohibition are considered general remedies of judicial regulation.
The Latin term Certiorari is the passive way of reminding the word certiorari. A writ of certiorari or writ in the form of certiorari may only be given to advise, inferior courts, courts or authorities by Supreme Court under Article 32 and by a High court under Article 226, to apply to the Court for review or where appropriate, to the record of procedures disposed of or waiting therein. But certiorari written for the records, documents, and proceedings of an Act or order can never be released, and a law or order can never be quashed.
Certiorari under Art. 226 is provided to rectify gross errors in jurisdiction, i.e. where the subordinate court has behaved without competence (1) or to presume competence where none exists, or (2) beyond the competence of the subordinate tribunal by stepping in or crossing the boundaries of jurisdiction, or (3) behaving in gross disregard or in breach of the standards of natural justice where no proceedings are set out and thereby triggering the failure of justice.
A ban is usually given when the lower court or tribunal (a) acts without authority or exceeds the competence (b) acts in violation of the natural justice rules or (c) acts under a statute itself ultra vires or unconstitutional or (d) acts in breach of basic rights.
The distinction between prohibition and certiorari’s writings is fundamental. It is released at various points of the proceedings. If the lower court holds a hearing in an area over which it does not have jurisdiction, it will transfer the higher court against which the order is issued stopping the lower tribunal from proceeding. The court, however, will have to appeal to a higher tribunal to quash the decision/order on the grounds of lack of jurisdiction if the court listened to the argument and made the decision.
These writings are given for the following reasons: when an Official has behaved or been acting in compliance with invalid law; legal mistakes; obvious mistakes on the record; evidence findings which have not been substantiated by proof; a lack of natural justice.
Author: Sampark Sampad,
National Law University, Odisha 2nd year/ Student