Article 32(2) give for the writ jurisdiction of the Supreme Court in India. Similarly, writ jurisdiction for High Courts is provided as to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of Habeas Corpus, Mandamus, prohibition, Quo-Warranto and Certiorari, or any of them, for the enforcement of any of the rights conferred by Part III in Constitution and for any other purpose.Article 32(2) give for the writ jurisdiction of the Supreme Court in India. Similarly, writ jurisdiction for High Courts is provided as to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of Habeas Corpus, Mandamus, prohibition, Quo-Warranto and Certiorari, or any of them, for the enforcement of any of the rights conferred by Part III in Constitution and for any other purpose.
Difference between Article 226 and 227 of Indian Constitution
- High Court has power to issue directions, orders & writs to any person or authority.
- It is an original proceeding concerning the civil rights of a person.
- High Court has power to superintendence over all Courts & Tribunals throughout in their jurisdiction.
- This is not an original proceeding.
Types of writs
Habeas Corpus is originated from a Latin term which means “you must have the body”. By this writ the Hon’ble Court directs the person or authority who has detained any person to present him before the Court by which the justice delivering body decides the validity justification for such detention. The principal aim of this writ is to ensure that no person should be detained illegally by which his right of liberty and freedom is get hampered. This writ makes an immediate action for the freedom of any person if he is detained illegally.
Under Art. 22 of Indian constitution every person who is arrested need to be presented before magistrate within 24 hours of his arrest, according to a fair procedure but in failure of do so the said arrested person should be released immediately.
Writ of habeas corpus can be invoked not only against the state but also against any individual who is holding any person in unlawful custody or detention.
In the case of Gopalan v.Government of India, the Supreme Court has stated that the earliest date by which the legality of detention is examined is to be considered the date on which the application for the same is made to the court.
The term quo warranto to means “what is your authority”. It is an instrument or order by which the Supreme Court or High Court directs an official or an authority from doing or abstain from an act.
Writ of quo warranto is used to judicially control executive action in making the appointments to public offices under relevant statutory provisions. The writ states that the person who is holding a public office. If in the proceeding it is found that the person is not entitled to hold the public office, the court will stop him from doing any and will declare the office to be vacant.
Writ proceedings not only give a weapon to control the executive from making appointments to public office against law but also tend to protect the public from being deprived of public office to which they has a right.
Quo warranto stops the illegal usage of a public office by an individual there are some necessary ingredients which should be satisfied to the court before issuing the writ is that, whether that office should be public or must be created under the constitution and the person holding it is not legally qualified to hold it by which it is a clear violation of the provision constructed in the constitution.
It means “We Command” and this writ is issued by a Hon’ble court to an authority directing it to perform a public duty imposed upon it by law. For example, when a body omits to decide a matter which it is bound to decide, it can be commanded to decide the same. Function of this writ of mandamus is to make the public officers in order to complete their work properly now without any delay. Mandamus can be issued in respect of any of the authority or any kind of function as administrative, legislative, quasi-judicial, judicial Mandamus is used to enforce the performance of public duties by public authorities .Writ of Mandamus is issued when a public authority is failed to perform it’s work with full efficiency, then the courts has to issue this writ to make that work competed which is not constitutionally corrected or hindering the life’s of normal people.
Writ of mandamus can’t apply on-
- President or Sate Governors
- Chief justice of High Court
Writ of prohibition is also called as preventive writ. It prevents the court, tribunal or quassi judicial bodies from exercising their power beyond their jurisdiction or exercise of those power which are not vested by them.
It is issued before the proceeding of the case is complete as it states to restrict the lower court to decide the order of case which is unconstitutional as they lack of power in that.
Grounds on which this Writ is issued
- Absence of jurisdiction.
- Violation of natural justice as if the opposite party is not been served or heard.
- Infringement of Fundamental Rights.
Certiorari is derived from a Latin word which means to “certify”. Generally it is used by the courts to correct the illegality of the decisions if by made by any Court. It is used by a superior Court on lower Courts or Tribunals commanding them to send up the record of a particular case, for investigation of the order given or if it is passed unconstitutionally it will be quashed. It is generally done because superior court believes that either the inferior court should not commit an error of law. Thus, certiorari is a kind of curative writ.
When it can be issued:
- Error in jurisdiction.
- Lack of jurisdiction.
- Excess of jurisdiction.
- Abuse of jurisdiction.
- Violation of principles of natural justice.
Types of Writ’s and their meaning
|1||Habeas corpus||Latin||You may have the body|
|4||Quo warranto||Latin||By what authority|
|5||Certiorari||Latin||To be certified|
Author: Pushkar Khanna,
Delhi Metropolitan Education affiliated to GGSIPU /2nd Year/ Law Student