The supreme court, and High courts have power to issue writs in the nature of habeas corpus , quo warranto , mandamus , certiorari ,prohibition etc.,
under Arts. 32 and 226 respectively. These writs have been borrowed in India
from England where they had a long chequered history of development and
consequently have gathered a number of technicalities. Power to issue writs is
primarily a provision made to make available the Right to Constitutional Remedies to
every citizen . The right to constitutional remedies as we know is a guarantor
of all other fundamental rights available to the people of India. In addition to
the above , the constitution also provides for the parliament to confer on the
supreme court power to issue writs , for the purpose other than those mentioned
above. Similarly High courts in India are also empowered to issue writs for the
enforcement of any of the rights conferred by Part III and for any other purpose
Types of Writs:
There are five types of writs –Habeas corpus , Quo warraranto , Mandamus ,
Certiorari and Prohibition
1. Habeas Corpus:
The latin term habeas corpus means ‘you must have the body ‘ and a writ for
securing the liberty was called habeas corpus ad subjiciendum. By this writ the
court directs the person or authority who has detained another person to bring
the body of the prisoner before the court so as to enable the court to decide
the validity , jurisdiction or justification for such detention. The principal
aim of the writ is to ensure swift judicial review of alleged unlawful detention
on liberty or freedom of the prisoner or detention . The great value of the writ
is that it enables immediate determination of the right of a person as to his
freedom. Under Art. 22 , a person arrested is required to be produced before a
magistrate within 24 hours of his arrest , and failure to do so would entitle
the arrested person to be released .Habeas corpus cannot be granted where a
person has been committed to custody under an order from a competent court when prima facie the order does not appear to be without
jurisidiction or wholly
illegal . 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 such circumstances it is the duty of the police to make necessary
efforts to see tht the detention is got released but , if despite such efforts ,
if a person is not found , the police cannot be put under undue pressure to do
In Gopalan v.Government of India, the Supreme court ruled that the
earliest date with reference to which the legality of detention may be examined
is the date on which the application for the same is made to the court.
2. Quo Warranto:
The term quowarrantomeans what is your authority . The writ of quo warranto is
used to judicially control executive action in the matter of making appointments
to public offices under relevant statutory provisions . The writ is also used to
protect a citizen from the holder of a public office to which he has no right .
The writ calls upon the holder of a public office to show to the court under
what authority he is holding the office in question . If he is not entitled to
the office , the court may restrain him from acting in the office and may also
declare the office to be vacant . The 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 it
has a right.
Quo warranto prevents illegal usurpation of public office by an individual . the
necessary ingredients to be satisfied by the court before issuing a writ is that
the office in question must be public , created by the constitution or a law
and the person holding the office is not legally qualified to hold the office in
clear infringements of provisions of the constitution or the law . It is the
person against whom writ of quo warranto is directed , who is required to show
by what authority the person is entitled to hold the office . While issuing such
a writ , the High court merely makes a public declaration of the illegality of
the appointment and will not consider other factors , which may be relevant for
issuance of a writ of certiorari.
Mandamusis a command issued by a 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.
Mandamus can be issued when the Government denies to itself a jurisdiction which
it undoubtedly has under the law , or where an authority vested with a power
improperly refuses to exercise it . The function of mandamus is to keep the
public authorities within the limits of their jurisdiction while exercising
public functions .Mandamus can be issued to any kind of authority in respect of
any type of function – administrative , legislative , quasi-judicial , judicial Mandamus is used to enforce the performance
of public duties by public
authorities .Mandamus is not issued when Government is under no duty under the
law . When an authority fails in its legal duty to implement an order of a
tribunal, mandamus can be issued directing the authority to do so . Thus , when
the appellate transport tribunal accepted the applications of the petitioner for
grant of permits, mandamus was issued to the concerned authority to issue the
permits to the petitioner in terms or the tribunal order .Mandamus is issued to
enforce a mandatory duty which may not necessarily be a statutory duty.
In Bombay municipality v. Advance Builders, the court directed the
municipality to implement a planning scheme which was prepared by it and
approved by the Government under the relevant statute but on which no action was
taken for a considerable time.
4. Certiorari and Prohibition
These writs are designed to prevent the excess of power by public authorities .
Formerly these writs were issued only to judicial and quasi-judicial bodies. Certiorari and
Prohibition are regarded as general remedies for the judicial control of both
quasi judicial and administrative decisions affecting rights.
‘Certiorari’is a latin word being passive form of word “certiorari” meaning
inform . A writ of certiorari or a writ in the nature of certiorari can only be
issued by the Supreme court under Art. 32 and a High court under Art. 226 to
direct , inferior courts , tribunals or authorities to transmit to the court the
record of proceedings disposed of or pending therein for scrutiny , and , if
necessary , for quashing the same . But a writ of certiorari can never be issued
to call for the record or papers and proceedings of an Act or Ordinance and for
quashing such an Act or Ordinance.
Certiorari under Art. 226 is issued for correcting gross error of jurisdiction i.e. when a subordinate court is found to have acted (1) without
jurisdiction or by assuming jurisdiction where there exists none , or (2) in
excess of its jurisdiction by over stepping or crossing the limits of
jurisdiction or (3) acting in flagrant disregard of law or rules of procedure or
acting in violation of principles of natural justice where there is no
procedure specified and thereby occasioning failure of justice.
A writ of prohibition is normally issued when inferior court or tribunal (a)
proceeds to act without jurisdiction or in excess of jurisdiction (b) proceeds
to act in violation of rules of natural justice or (c) proceeds to act under a
law which is itself ultra vires or unconstitutional or (d) proceeds to act in
contravention of fundamental rights.
There is a fundamental distinction between writs of prohibition and certiorari.
They are issued at different stages of proceedings . When an inferior court
takes up a hearing for a matter over which it has no jurisdiction , the person
against whom hearing is taken can move the superior court for writ of
prohibition on which order would be issued forbidding the inferior court from
continuing the proceedings . on the other hand if the court hears the matter and
gives the decision , the party would need to move to superior court to quash the
decision / order on the ground of want of jurisdiction.
These writs are issued on the following grounds : when the authority is acting
or has acted under an invalid law; jurisdictional error; error apparent on the
face of record ; findings of fact not supported by the evidence ; failure of
These are the five types of writs which were issued by the Supreme court and
High court under Arts. 32 and 226 of the constitution .Habeas corpus and Quo
warranto being confined to specific situations, Certiorari and Mandamus are the
two most commonly sought writs to control the actions of administrative bodies.
To File Writ in Supreme Court of India
Call at ph no: 9650499965 / or