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Law of Writs In Indian Constitution

Origin of Writ

In common law, Writ is a formal written order issued by a body with administrative or judicial jurisdiction. In modern times, this body is generally a Court. In olden days the writ was simply a written order made by the English Monarch to a specified person to undertake a specified action. Eg: King order the military chief to arrange the soldiers for battle at a certain place and time. In Early times UK, Canada and Australia had a practice of  Writ of Election. Writ of Election means a written order issued by Governor General for House of Representatives, State Governors for State Elections (on behalf of King) to local officials to hold general elections.

Five Type of Writs:

There are five types of writs in the Indian Constitution stated in Article 32 for Supreme Court and Article 226for High Court. They are:
  • Habeas Corpus
  • Quo Warranto
  • Mandamus
  • Prohibition
  • Certiorari

1. Habeas Corpus Great And Effective Writ:

Habeas Corpus was 1storiginated in 1215, in 39th clause of Magna Carta, signed by King John. Habeas Corpus derived from Latin term which means ú that you have the bodyĚ. It is used to secure a person who has been detained unlawfully or illegally.

The detention is unlawful if:
  1. It is not according to law.
  2. Not strictly following the procedure established by law.
  3. The invalid law is followed (Because the law infringes Fundamental Law).
  4. It exceeds the law enacted by legislature.

Article 20 says Protection in respect of conviction for offences
Article 21 says Protection of Life and Personal Liberty

Article 22 says Protection against arrest and detention in certain cases Court will check the detention with help of these articles, if the detention violates then it is unlawful or illegal detention. Any one can file this petition on behalf of the detainee.

In Sheela Barse vs State of MaharashtraĚcase:
the writ petition was filed by the Sheela Barse a journalist. She interviewed 15 women prisoners in police lockup in the city of Bombay in May.11.1982. She finds 2 women were assaulted there, so she filed the petition. The court ordered and directed Dr (Miss) A.R.Desai, Director of college of Social Work - to investigate it. Finally it was proved and the officials were punished and certain safety measures were taken to the safeguard of the women prisoners.

Limitation for Habeas Corpus:

Though a writ of right, it is not a writ of course means it provides only procedural remedy (Guarantees against any detention that is forbidden by law), But it does not provide any other remedy (does not protect any other rights such as fair trial etc.)

2. Quo Warranto Authoritative Writ:

Quo Warranto is originated in the Latin in the medieval period, which means by what authority. It is issued to the person who holds the public office and on what authority it is entitled to him. The concerned person is responsible to the court to explain his authority on which he holds the authority. The person who files this writ is need not to be personally suffered. This writ is filed to test the validity of a election of a person in a university syndicate, Mayor in municipal corporation, Nomination of members to a Legislative Council by Governor, appointment of Chief Minister, Chief Justice, Advocate and Attorney General, University Teachers etc.

In the case Purushottam Lal vs State of Rajasthan quo warranto was filed against the CM of Rajasthan stating that CM was not elected validly to the house. The court rejects the petition stating that if the CM holds office without authority, then it is breach of constitutional provision. The office of Chief Minister is created by constitution, so member of assembly is not a purpose of office. Raising the questions on the Election of Chief Minister in this writ is not a proper form it must be raised through an election petition.

If a person who had no qualification was appointed as CM by the Governor under the Article 164 of the Constitution which is unconstitutional, the governor cannot be challenged. Because he had the discretionary power under Article 361 and the appointment will be deserted by the High Court.

In the case Y.S.Raja Sekar Reddy vs Nara Chandra Babu Naidu a quo warranto cannot be issued for dismissing the Chief Minister of a state on the reason of non-performance of his constitutional duty.

Conditions For Issue of Quo Warranto:

  1. The office must be a public one and it must be created by the constitution.
  2. It must be a substantive one.
  3. There must be a contravention in constitution in appointing the person for that office.

3. Mandamus Writ of Command:

Mandamus is developed from Latin word which means We command. It is an order from the Supreme or High Court to:
  1. Lower or Subordinate courts.
  2. Tribunal.
  3. Public Authority.
To perform the public or statutory duty. Mostly this writ of command will be issued to any government, court, corporation or public authority fails to do their work.

Limitations for Mandamus:

Supreme Court cannot issue writs to:
  1. President or State Governors
  2. Chief Justice of High Courts
  3. Against any private individual
  4. Duties on voluntary interest

Mandamus cannot be issued against

  • state government to appoint a commission for any enquiry in the state
  • delegated legislative to make further rules in statutory provisions
  • directing the government to make reservations (Article 16[4])
  • the complete right of a private person
  • to enforce the payment of money of a person in a civil liability.
In Tata Cellular vs UOI case, the Supreme Court said that the court cannot interfere in the governments freedom of contract, invitation of tenders and refusal of tenders. The court can interfere if the governments decision was unfair, illegal and unreasonableness.

4. Certiorari To Be Certified:

Certiorari is issued by a Superior Court to the inferior or subordinate courts, tribunal and other public authorities to submit the record of a proceeding for review. Generally the writ of certiorari was issued by the Supreme or High Court for quashing the order passed by inferior courts or subordinate courts, tribunals or other quasi judicial authorities.

Conditions For Issue of Writ of Certiorari:

  • There must be a court, tribunal or an authorised person having a legal right to act judicially.
  • Such court, tribunal or officer must acted or passed an order without jurisdiction or in excess of judicial authority.
  • If the order was against the principle of Natural Justice.
  • If the order contains an error of judgement.
  • If it is against the constitution or contravention to the fundamental rights.


5. Prohibition Stay Order:

The writ of prohibition is issued by Supreme or High Court to an inferior court to forbid or to stop the order passed by them. The writ of certiorari and prohibition are issued mostly on similar grounds. The main difference between these two writs are:
  • Certiorari issued to quash a decision after completion of proceedings.
  • Prohibition issued before the completion of proceedings.

Suggestion:
The writs are initiated to maintain the proper functioning of the persons in the public authority and also for the proper functioning of the government. It must be followed strictly and to ensure that there is a proper function is maintained without any malfunctions in the respective fields. Judiciary must play a major and strict role in this.

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