Writs – Constitutional Remedies
Article 32 For Supreme Court
Article 226 For High Court
Dr Bhim Rao Ambedkar has called this Article 32 of the Indian Constitution as “the HEART and SOUL of the Constitution”.
Article 32 is itself a Fundamental Right, mainly talks about two types of Rights and Powers.
- firstly, it says that if an individual Fundamental Right is being violated, then he can directly use Art.32 and approach the Supreme Court
- secondly, Art.32 empower the Supreme Court to issue 5 Kinds Of Writs for the Protection Of Fundamental Rights.
Because of this feature of Art.32, the Supreme Court is Known as “Protector and Guarantor” Of Fundamental Rights”.
There are five types of Writs as provided under Article 32 of the Constitution
1. Habeas Corpus
2. Quo Warranto
1. Habeas Corpus
‘Habeas Corpus’ is most of the important and Powerful Writ for Personal Liberty which says ‘To Produce A Body’
This Writ is used to enforce the Fundamental Rights of individual liberty against unlawful detention. It is an order issued by the court to a person who has detained another person, to produce the body of the arrested person before it.
Facts- The Supreme Court or High Court can issue this Writ.
This Writ can be issued against Public authority and also against Individual.
The Writ Of Habeas Corpus is not used in the following four conditions.
- a. Detention is lawful.
- b. Contempt of Cout.
- c. Detention is outside the Jurisdiction of the court.
- d. Detention is by a competent court.
In the case of RUDAL SHA VS STATE OF BIHAR (1983), a person who had already completed his period of detention was still kept in prison for an extra 14 years. In this case, The Writ Of Habeas Corpus was used which lead to his immediate release, additionally he was given exemplary damages.
So Writ Of Habeas Corpus is used to demand protection or release of person who is illegally detained.
2. Quo Warranto
The literally meaning of The Writ Of ‘Quo-Warranto’ is ‘By What Authority’ or ‘By What Warrant’.
It is a Writ issued with a view to restraining a person from acting in a public office to which he is not entitled, The Writ Of Quo-Warranto is used to prevent illegal assumption of any public office or usurpation of any public office by anybody.
By using this Writ, Court can question any public officer that by what authority have you assumed this public office ?
If the officers Title is defective then he has to vacate the office!
Facts- It can’t be issued against private or ministerial office.
Writ can be issued only when the public office is wrongfully assumed by the private person.
The term of the public office must be of permanent nature.
The Writ Of Quo-Warranto can be filed by anyone, Even a stranger can file this Writ.
The literally meaning of The Writ Of Mandamus is ‘We command’. Mandamus is an order from a superior court to a lower court, tribunal or public authority to perform an act which fails within its duty, it is issued to a public official to do a thing which is a part of his official duty, but, which, he has failed to do, so far this writ cannot be claimed as a matter of right, it is discretionary power of a court to issue such writs
Facts- Unlike Habeas Corpus, Mandamus cannot be issued against a private individual.
The Writ Of Mandamus can not be issued in the following cases.
- a. Mandamus can’t be issued against the Indian President or State Governors
- b. Against the Chief Justice of a High Court acting in a judicial capacity
In the case of GUJARAT STATE FINANCIAL CORPORATION VS LOTUS HOTELS (1983), the financial co-op had an agreement with the Lotus Hotels that we will release the funds. So that you can complete your construction work. Later, the defuse the funds. So, Lotus Hotels approach the Gujarat High Court. GHC by using the writ of mandamus, directs the authority to perform the public duty which it promised to perform!
There is one condition pre-requisite for the application of Writ Of Mandamus- There should be a Public Duty
Writ Of Prohibition means ‘To Forbid’ or ‘To Stop’ and it is popularly known as ‘Stay Order’ This Writ is issued when a lower court or a body tries to transgress the limits or powers vested in it.
It is a writ issued by a superior court to lower court or a tribunal forbidding it to perform an act outside it’s jurisdiction. After the issue of this writ, proceedings in the lower court etc. come to a stop
Facts- Writ of Prohibition can only be issued against judicial and quasi-judicial authorities.
It can’t be issued against administrative authorities, legislative bodies and private individuals or bodies.
The literally meaning of The Writ Of Certiorari ‘to be certified’ or ‘to be informed’. Through this writ, Supreme Court and Hight Court can command the Lower Court to submit its record for their review. In the review it is checked that whether the Lower Court Judgements are illegal or not.
When can Lower Courts Judgements be Illegal.
- a. Excess of jurisdiction.
- b. Lack of Jurisdiction.
- c. Jurisdiction is un-constitutional.
- d. Violation of Principles Of Natural Justice.
If the LCs Judgements are found to be illegal, then they are Quasted (which means that their judgement has no value now and is not to be followed)
Facts- Pre-1991: The writ of Certiorari used to be issued only against judicial and quasi-judicial authorities and not against administrative authorities
Post-1991: The Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting the rights of individuals
It cannot be issued against legislative bodies and private individuals or bodies.
GULLAPALLI NAGESWARA RAO VS APSRTC (1959)
AK KRIPAK VS UNION OF INDIA (1970)
Both cases related to the Writ Of Certiorari, In both of these cases, their LCs judgement were held to be illegal and therefore Quashed.
Author: Unnati Rathi,
BBA-LLB 3rd Year, INVERTIS INSTITUTE OF LAW