TYPES OF WRITS
The main motive of Indian Constitution is to provide Economic and Social justice. The Constitution of India, provides Fundamental Rights and ordinarily cannot be taken away and to ensure the safeguard of these rights it also provides some writs which were enforced by the Supreme Court and High Court. The evolution of these writs is from England and it also has a long rich history of its evolution. The Supreme Court and High Court can take suo moto action and issue the writ and the citizens can also file a writ petition for the protection of their rights.
WHAT IS WRIT AND WHO CAN ISSUE IT?
A writ can be interpreted as an order or action taken by the superior authority, who is authorized by the Constitution to do so. A writ can also be known as an order, warrant, action, direction, etc. the writ can be issued suo moto by the Supreme Court or High Court and the general principle of “Locus Standi” (the right or capacity to bring an action or to appear in a court) given right to all the citizens to approach to the court for the protection of their rights. Under Article 32 a person approaches the Supreme Court and under Article 226 a person can approach the High Court for the protection of their Fundamental Rights and Constitutional Rights.
TYPES OF WRITS ENSHRINED IN THE CONSTITUTION
There are five types of writs, namely:
• Habeas corpus
• Quo warranto
The term Habeas Corpus was derived from the Latin term which means “to have the body of”. By this writ, the court decides the soundness, justification, and jurisdiction of a person who confined another person and also does not have the authority to do so or does not produce that person before the court within a reasonable time.
A person’s right to life and personal liberty cannot be taken away except according to the procedure established by law And an arrested person is required to produce before the magistrate within 24 hours and if the confiner in failed to so, without the reasonable justification, then the arrested person is entitled to be released.
In A.D.M. Jabalpur v. Shivakant Shukla (1976) 2 SCC 521,it was observed that the “writ of habeas corpus is a mechanism to provide relief to the person who was unlawfully and unjustifiably confined, then the person is said to be released”.
WHO CAN FILE A WRIT OF HABEAS CORPUS?
A writ of Habeas Corpus can be filled by:
- The person himself,
- His legal representative.
The term mandamus means “we command”. In this writ the superior authority i.e., (Supreme Court or High court) gives an order or command to an inferior court, public authority or government to perform certain “public duty” which was not denied of perform by them.
Any individual, private body or a legal representative of a person can file a writ petition of mandamus, in the matter in which, that public authority is bound to perform his duty according to law.
This writ can be issued against the following person:
- Government entity;
- Private person,
- Chief justice, or
- Any other person or body who was bound by law to perform certain duties.
In Bombay Municipality v. Advance Builders (1971) 73 BOMLR 657, the court directs the municipality authority to implement a planning scheme in a specified time period approved or prepared by the government and respective authorities under the relevant statute.
In Bhopal Sugar Industries Ltd. v. Income Tax Officer 1961 AIR 182, 1961 SCR (1) 474, in this case, the Income Tax Appellate Tribunal had given direct directions to the Income Tax Officers (respondent), but the Income Tax Officer still refused to fulfill his duty and the directions of the Tribunal. So, it was held by the Supreme Court that it is the mandatory duty of the Income Tax Officer to fulfill his obligations and directions.
The term quo warranto means “by what warrant”? The writ of quo warranto was issued against the person or public authority, who has wrongfully and unlawfully taken the possession of an office, which he is not entitled to hold. The person is asked to show by what authority or order he occupies the position or office.
In the case of Jamalpur Arya Samaj v. Dr. D. Ram, the writ of quo warranto was dismissed on a ground that this writ does not exist in the case of private authority/office.
The basic ingredient for validation of this writ is that the office hold by the person must be of government office or comes under the government sector.
The meaning of term certiorari is to “to certify or to be reviewed”. The main purpose of this writ is to correct the error which was evident on record. This writ has a corrective nature, that’s why it is also known as curative writ. The writ of certiorari was issued by the Supreme Court or High court to any inferior court or any other authority that exercise judicial, quasi-judicial or any administrative functions.
This writ can be issued in certain condition, which are:
- When a superior authority wants to take a suo moto action in a certain matter, Or
- There is an error in the judgement, Or
- The inferior court or any other authority does not have a jurisdiction to decide the matter (excess of jurisdiction), or
- When there is violation of Fundamental Rights or Principle of Natural Justice.
In case of A.K. Kripak V. Union of India AIR 1970 SC 150, the writ of certiorari was issued to disallow the selection list of the Indian Forest Service on the ground that one of the nominated candidates was the ex-officio member of the selection committee.
The meaning of prohibition writ is “to forbid or to stop”. This writ was issued to prohibit the lower courts, tribunals, and other quasi-judicial authorities from doing something beyond their authority by the Supreme Court or High Court. It is a way to protect the rights of the citizens.
The writ of certiorari will be furnished when a case has been already adjudicated upon, i.e. when the decision has been announced. (
). Prohibition is furnished during the pendency of the proceedings. (Res sub judice).
The Fundamental Rights guarantee by the Constitution is known as the heart of the Constitution, but for the protection and enforceability of these rights, judicial authority plays a crucial role. The Constitution allocates this power to the higher judicial authorities i.e. Supreme Court and High Court Article 32 & 226 was also known as the protector of the Fundamental Rights guarantee by the Indian Constitution.
The Fundamental Rights are the golden words of the Constitution. The provision for the protection and enforcement of Fundamental Rights is one of the novel features in the Indian Constitution. All these writs have played an important role in the implementation of the rights of the people and it also widens the scope of the power judicial review of courts.
Author: Shaijal Shekhar,
Faculty of Law, A.M.U (2nd Year)