Injustice anywhere is a threat to  Justice everywhere

                          -Martin Luther  King Jr

We might have a thought of how our Fundamental Rights are protected and what the safe guarding measures are granted by our Constitution for the proper enforcement of Fundamental Rights. Here comes the importance of Writs, more precisely Prerogative writs. The origin of writs can be traced back to the judicial system of medieval England. Writs were first introduced in India in 1774 by a Royal Charter of Britain.In 1950, the Constitution of India came into effect.Indian Constitution has adopted 5 Prerogative writs. Article 13 clearly states that Laws inconsistent with or in derogation of the fundamental rights are void. The Supreme Court (Under Article 32) and the High Courts (Under Article 226) are empowered to issue writs for the enforcement of fundamental rights against any authority of the State.

Article 226 in the Constitution of India

Article 226 Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, 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, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose

(2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without

(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme Court by clause (2) of Article

Article 32 in the Constitution of India

Article 32 Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution

What is the difference between Article 32 and Article 226 of the Indian Constitution?

Article 32 can be invoked only for the enforcement of Fundamental Rights whereas Article 226 can be invoked not only for the enforcement of Fundamental Rights but for ‘any other purpose’ as well. This means that the Supreme Court’s power under Article 32 is restricted as compared with the power of a High Court under Article 226, for, if an administrative action does not affect a Fundamental Right, then it can be challenged only in the High Court under Article 226, and not in the Supreme Court under Article 32. The words “for any other purpose” found in Article 226 (but not in Article 32), enable a High Court to take cognizance of any matter even if no Fundamental Rights in involved.

Writ and Writ Petition

A writ is a formal written order issued by a Court. Any warrant, orders, directions, and so on, issued by the Supreme Court or the High court are called writs.

A writ petition can be filed in the High Court (Article 226) or the Supreme Court (Article 32) of India when any of your fundamental rights are violated. The jurisdiction with the High Courts (Article 226) with regards to a writ petition is wider and extends to constitutional rights too.

In this article, we will discuss the different types of writs and a sample format for submitting a writ petition.

There are five types of writs: namely,

  • Quo Warranto
  • Habeas Corpus
  • Mandamus
  • Prohibition
  • Certiorari.

Types of Writs

Habeas Corpus

A writ of Habeas Corpus is used by the courts to find out if a person has been illegally detained. If the answer is yes, the court can order for his release. If a person has been illegally detained, he himself, a friend or even a relative can file a writ of Habeas Corpus. Habeas Corpus is Latin for ‘Let us have the body’ (or, let us see the person who has been illegally detained). Through Habeas Corpus, the court can thus also summon the person detained or imprisoned to the court.

To file a Habeas Corpus petition

Generally a petition is to be filed by the person being detained or arrested, as per Habeas Corpus; any other person can do it on behalf of the detained individual. This writ (written petition) can be issued against a public authority or any particular individual.

Case
One of the most famous Habeas corpus case filed in India was at the time of Emergency, in Kerala High Court (The first Habeas corpus case in the history of Kerala). P. Rajan, a student of the erstwhile Regional Engineering College, was arrested by Kerala police and died due to torturing. Hisfather, Mr T. V. Eachara Warrier filed a Habeas corpus in Kerala High Court in which the police finally confirmed that he died in custody. Check the 44th amendment of Constitution – enforcement of the writ of habeas corpus cannot be suspended during Emergency – under Article 352.

Mandamus

A writ of Mandamus is issued by a higher court to a lower court, tribunal or a public authority to perform an act which such a lower court is bound to perform. If a public official is not performing his duty, the court can order it or him/her to do that. Mandamus means we command.

To file a Mandamus petition

Mandamus or the ‘we command’ writ can be issued against anyone, including the president or governor of the state, a private person or chief justice. Any individual or a private body can file a writ petition of mandamus, subject to the person/persons having legal rights to do so, in the matter concerned.

Case

The case of Kanchi Shankaracharya, who got entangled in a criminal case, is a good example of a judgement in response to a writ mandamus. As per judgement,” It appears to us that, though the Code of Criminal Procedure gives to the police unfettered power to investigate all cases where they suspect that a cognizable offence has been committed, in appropriate cases an aggrieved person can always seek a remedy by invoking the power of the High Court under Article 226 of the Constitution under which, if the High Court could be convinced that the power of investigation has been exercised by a police officer mala fide, the High Court can always issue a writ of mandamus restraining the police officer from misusing his legal power”

Prohibition

A writ of prohibition, also known as a ‘stay order’, is issued to a lower court or a body to stop acting beyond its powers.

A writ of prohibition is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction in cases pending before it or acting contrary to the rules of natural justice. It is issued by a superior court to inferior courts from usurping a jurisdiction with which it was not legally vested, or in other words to compel inferior courts to keep within the limits of their jurisdiction. Thus the writ is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction. The writ can be issued only when the proceedings are pending in a court if the proceeding has matured into decision, writ will not lie. When the court, before whom the matter is pending, has ceased to exist, in that condition too, the writ of prohibition will not lie because there can be no proceedings upon which it can operate but on the other hand, if the court is functioning, the writ can be issued at any stage of the proceeding before the inferior court or tribunal. It can be issued only against a judicial and quasi-judicial body and not against a legislative or administrative body.

Writ of Certiorari

The writ of certiorari issued to quash a decision after the decision is taken by a lower tribunal while prohibition is issuable before the proceedings are completed. The law has always been, that a writ of certiorari is issued against the acts or proceedings of a judicial or quasi-judicial body conferred with power to determine question affecting the rights of subjects and obliged to act judicially. Since the Writ of certiorari is directed against the act, order or proceedings of the subordinate Court, it can issue even if the lies is between two private parties. The grounds for the issue of certiorari have been succinctly stated by the Supreme Court in Syed Yakoo v. K.S. Radhakrishnan. The writ of certiorari or prohibition is issued, inter alia on the following grounds: When the body concerned proceeds to act without, or in excess of, jurisdiction, or fails to exercise its jurisdiction; or there is an error of law apparent on the face of the record in the impugned decision of the body; or the findings of fact reached by the inferior tribunal are based on no evidence; or it proceeds to act in violation of the principles of natural justice; or it proceeds to act under a law which is itself invalid, ultra vires or unconstitutional, or it proceeds to act in contravention of the Fundamental Rights

Case

State of UP V. Mohammed Noor, (AIR 1958 SC 86) , Supreme courtsaid that certiorari is mainly issued to reform the mistakes related to jurisdiction of subordinate courts or quasi-judicial bodies.

Quo Warranto

The writ of Quo Warranto (by what warrant) is issued to inquire about the legality of a claim by a person or authority to act in a public office, which he or she is not entitled to. The writ is only for the public offices and does not include private institutions/offices

A writ can be filed only if your fundamental rights are being violated. Generally, you can file a writ petition against state and government agencies. However, a writ Petition can also be issued against private authorities when they are discharging public function.

Case
The vaults of Sree Padmanabhaswamy Temple; Kerala was opened in accordance with the quo warranto petition filed by the former IPS officer and Supreme Court lawyer, T.P. Sundara Rajan.

 

A Quick Overview

 

Conclusion

The power to file writs against the state is a constitutional remedy and it is a fundamental rights. A writ to the Supreme Court is filed under Article 32 of the Constitution of India where as a writ to the High Court is filed under Article 226 of the Constitution of India.

 

The writ remedy is one of the most powerful remedy given to the people of India by the Constitution. To end the article I must quote the words of Dr. Ambedkar “If I was asked to name the particular Article in this Constitution as the most important without which this Constitution would be a nullity, I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it …….. This in my judgment is one of the greatest safeguards that can be provided for the safety and security of the individual.” No discussion of the Fundamental Rights and Constitution can end without the discussion of the Kesavananda Bharti v Union of India [8] where the massive 13 judge’s bench held the power of Supreme Court under Article 32 to be the basic structure of the Constitution and that it is beyond the amending powers of the Legislature. The Court also held this Power to be one of the most important rights enshrined to the People of India and the protector of all other Rights.

 

 

 

References:

  1. https://www.gktoday.in/gk/what-is-the-difference-between-article-32-and-article-226-of-the-indian-constitution/
  2. https://vakilsearch.com/advice/writ-petition-india-filing-drafting/
  3. https://indiankanoon.org/doc/981147/
  4. http://www.currentaffairsindia.info/2011/07/writs-in-indian-constitution.html
  5. https://ipc498a.wordpress.com/2007/08/15/an-example-of-a-writ-mandamus/
  6. http://www.lawji.in/2017/07/rights-to-constitutional-remedies-writs.html
  7. http://lawyersindia.net/articles/writ-remedy/
  8. https://en.wikipedia.org/wiki/Writ_of_prohibition
  9. https://www.gktoday.in/gk/certiorari/
  10. Image Source: b1law.com
  11. Table: https://www.google.co.in/search?q=cases+n+images+related+to+prohibition+writ&tbm=isch&tbo=u&source=univ&sa=X&ved=0ahUKEwjmpPLR89raAhWKuY8KHdq3CpsQsAQINQ#imgrc=_