Writs play an important role in the protection of fundamental rights
in Indian constitution.
Writs guarantee the right to move to Supreme Court in case of infringed right.
The award of compensation as part of the relief that can be awarded to the
aggrieved individual is an essential aspect of these remedies. This stems from
the notion that the state not only has a legal obligation to defend the rights
guaranteed, but also a social need to compensate those who are harmed when these
rights are violated.
The administrative procedure, on the other hand, has
expanded dramatically. This is understandable in a welfare state, which is
essentially an administrative state. So, in my paper, I discuss the concept of
Writs, their history, and their role in administrative action.
Meaning Of Writ:
A Writ is formal written order issued by an administrative or judicial authority
as a constitutional remedy against the violation of fundamental rights of an
individual. Generally, writ is a command by the Supreme Court or the High Court
to act or abstain from doing an act in a certain way.
Generally, writ is a constitutional remedy provided to citizens of India in case
of violation of fundamental rights.
Origin Of Writs:
The idea of writs began in English common law system. In England,
writ was issued by the king and the fee of writ was prescribed it was termed as
the "purchase of writs".
In India writs were introduced by the act with which the establishment of
Supreme Court at Calcutta. As a successor to the Supreme Court, the High court
was also established and was given the power to issue writs by the same
Writs were known as prerogative remedies in historic period. Originally, six
writs were introduced as prerogative writs. Writs are guaranteed to every
citizen of India by the Indian constitution. The Supreme Court of India has
power to issue writ under Article 32 of the Indian constitution. Whereas, the
High Court of India has the power to issue the order of writ under Article 226
of the Indian constitution.
"There can be no question that the Fundamental Rights, granted to people, are a
key aspect of our Constitution, and the High Court under Article 226 are
obligated to preserve these Fundamental Rights," it was said in Devilal v.
STO. The right to obtain a writ must also be a basic right when a petitioner
submits the case, according to Daryao v. State of U.P.
 As a result, it is not
only an individual's right to petition the Supreme Court, but it is also the
Supreme Court's obligation and responsibility to preserve basic rights.
Scope Of Article 32 And Article 226:
Article 32 of the Indian constitution
comes under part III. Dr. Bhim Rao Ambedkar called Article 32 as the heart and
soul of the Indian constitution. Article 32(1) of the Indian constitution
states that every citizen of India has a right to move to the Supreme Court with
appropriate proceedings for the enforcement of one's right. Article 32 (2) of
the Indian constitution states that the Supreme Court has the power to issue
orders or writs including the writs of nature of Habeas Corpus, mandamus, writ
of prohibition, quo warranto, writ of certiorari for the enforcement of any
right conferred. Article 32 (3) of the Indian constitution states that the
parliament may by law empower other court to exercise within local limits of its
jurisdiction. Article 32 (4) of the Indian constitution states that the right
guaranteed by Article 32 shall not be suspended unless and until provided by the
Article 226 of the Indian constitution states that the High
Court has the power to issue certain writs or orders including the writs in the
nature of Habeas Corpus, mandamus, writ of prohibition, quo warranto, writ of
certiorari. Article 226 talks about the interim order under sub clause 3.
Difference between Article 32 and Article 226:
|Article 32 gives power to the Supreme Court
||Article 226 gives power to the High Court.
|Article 32 is invoked only for the enforcement of
||Article 226 is invoked for the enforcement of both
fundamental rights as well as legal rights.
|Article 32 is a fundamental right.
||Article 226 is not the fundamental right.
Types Of Writs:
Courts can issue five types of writs according to the
constitution of India. They are:
Habeas Corpus: Habeas Corpus is a Latin term which means
"to have the body".
The writ of Habeas Corpus is the most effective remedy against an illegal
detention. This writ plays an important role in protecting the personal liberty
of an individual. The writ of Habeas corpus protects a person who has been
illegally detained without lawful justification by the person who has arrested.
The writ does not apply where a person is lawfully detained as an accused.
A person named Sumit is arrested by a police officer. Sumit then
writes to High court that he had been illegally detained. The concerned High
court sends summons to the police officer to state the valid grounds of Sumit's
arrest. If the police officer fails to do so, Sumit shall set to be free. Habeas
Corpus safeguards Article 21 of the Indian constitution which is regarding
the right to life and personal liberty.
- The applicant must be in custody
- The relatives of detained person can also file this writ. Also, any
third person can file as public interest litigation.
- It can be either formal or informal
- It can be in the form of letter by co-convict. In the case of Sunil Batra V. Delhi administration, the writ of habeas corpus was issued on
the grounds of letter by his co convict where it was mentioned about the inhuman
treatment by the prisoners.
- This writ will apply when the formalities of arrest which are to be
followed not followed by the police officer. Example: under section 56 of
the CrPc the arrested person is to be produced before the magistrate within
24 hours. If the police officer, fail to do so the writ of habeas corpus can be
filed and issued.
In the case of Rajakannu Vs. State of Tamil Nadu and Ors, The Habeas Corpus
petition was submitted by R. Parvathy, Rajakannu's wife. They were farm
labourers on a daily pay with four children. The 4th Respondent Police
reportedly beat R. Parvathy, her two kids, and her brother-in-law at the police
station on March 20, 1993.
On March 21, 1993, Rajakannu was arrested and the
others were freed. On March 22, 1993, the Petitioner's wife witnessed her
husband being severely assaulted while chained to the window bars. She was also
banged up after questioning the same. A homoeopathic doctor was summoned to
treat them after they incurred wounds and their health deteriorated as a result.
They were beaten up again after the doctor departed. The Petitioner's wife was
later forced to leave from the police station. Later, she was told that her
husband absconded from the station.
Mandamus:Mandamus means "We command". The writ of mandamus can be issued to inferior
courts to act or abstain from doing an act.
The writ of mandamus can be issued to corporation, tribunal board or any
It is important to note that the writ of mandamus cannot be issued to a private
person. It is specified that the writ of mandamus shall be issued only to the
Illustration: 'A' is a public servant. He omits his duties with which
suffers. 'B' can file an application for the writ of mandamus against the public
office in which 'A' works.
- The right of the petitioner must be infringed.
- There must be no effective remedy.
In the case of Vijaya Mehta V. State of Rajasthan, the petition was filed to
appoint the commission to look after the climate change. The court held that as
this duty was discretionary but not mandatory the writ of mandamus cannot be
- The public servant must have failed to omit the duty which he is
supposed to do so or mandatory duty.
The courts can refuse to issue the writ of mandamus when:
- The right of the petitioner has been lapsed
- The duty has been already fulfilled by the concerned authority.
The writ of certiorari is a different kind of writ as compared to
other writs. The writ of certiorari is corrective in nature.
The writ of certiorari can be issued by superior courts to inferior courts when
there is violation of natural principles of justice or fundamental rights. This
writ can be issued to correct errors in apparent records of inferior courts.
- The body or person has legal authority
- The authority is related to determining those questions which affect the
rights of the people.
- Such a body or person has a duty to act judicially in doing its
- Such a person or body has acted in excess of their jurisdiction or legal
Prohibition: The last Writ which can be issued under the Constitution is
the Writ of Prohibition. This Writ is not issued often and is an extraordinary
remedy which a Superior Court issues to an inferior court or tribunal for
stopping them from deciding a case because these courts do not have the
jurisdiction. If the court or tribunals does not have jurisdiction and it still
decides the case, it will be an invalid judgment because for an act to be legal
it should have the sanction of law. For e.g., if a District Court is hearing an
appeal against the judgement of the High Court, such an act is bound to be
prohibited because the District Court does not have the power to hear such an
appeal. So, a Writ of Prohibition will be issued against such an act of District
Difference between Prohibition and Certiorari-
Both the Writs Certiorari and Prohibition
appear to be the same but there is one major difference between the two. In
the Writ of Prohibition, the superior court issues the writ before the final
order is passed by the inferior court and therefore this is a preventive
remedy, while in Writ of Certiorari the superior court issues the Writ after
the inferior court has made the final order. Thus the Writ of Certiorari is
a corrective remedy by which the order of the inferior court is quashed.
The Writ of Quo Warranto is issued by the courts against a
private person when he assumes an office on which he has no right. Quo Warranto
literally means 'by what authority' and it is an effective measure to prevent
people from taking over public offices.
Illustration: A who is a private citizen and has no qualifications for the post
of sub-inspector assumes such office. Here a Writ of Quo Warranto can be issued
against A to call into question his authority on which he has taken the control
of the office of sub-inspector. The power to issue this Writ is discretionary on
the courts and therefore nobody can demand that the court is bound to issue this
Conditions for issuing Quo Warranto:
The Writ can be issued only when these conditions are fulfilled:
- The office which has been wrongfully assumed by the private person is a
- The office was created by the Constitution or by any other statute.
- The nature of the duties which arises from this office is public.
This Writ can also be issued in those cases where a person was entitled to hold
the office earlier but after getting disqualified he is still in possession of
the office. Thus in cases where the office is of private nature, this Writ
cannot be issued by the Court. This view was held by the court in the case of
Niranjan Kumar Goenka v. the University of Bihar, Muzzfarpur
, in which the
court observed that the Writ of Quo Warranto cannot be issued against a person
who is not holding a public office. In the case of Jamalpur Arya Samaj Sabha v.
Dr. D Rama
, an application for the Writ of Quo Warranto was made by the
petitioner in the Patna High Court against the Working Committee of Bihar Raj
Arya Samaj Pratinidhi Sabha which was a private body. The court refused to issue
the Writ because it was not a public office.
Role Of Writs In Administrative Law:
Administrative law is the field of law that maintains government activities
within the confines of the law, or, to put it another way, it keeps the
enforcement of obviously wrong instructions from becoming disparaging.
Administrative law has clearly established the checks, balances, and allowable
area of an exercise of power, authority, and jurisdiction over administrative
acts carried out by any State, Government agencies, and instrumentalities as
described in Article 12 of the Indian Constitution. And, while conducting
judicial review of administrative action, the judiciary is sketching out the
principles and exceptions in real time.
The courts have traditionally sought to
defend people's liberty by assuming powers granted by the Constitution for
judicial review of administrative decisions. It is the nature of justice to
limit discretionary powers if they are exploited or abused. The socio-political
instrument does not need to scream if the courts do their job and play a
significant role. That is what justice is all about. The welfare state must
carry out its responsibilities fairly, with no arbitrary or discriminating
treatment of citizens. If such powers are brought to the courts' attention, the
courts have raised their arms in accordance with the Rule of Law.
The role of writs is also sensibly laid down in a famous Padfield's Case
England in earlier days the Courts usually refused to interfere where the
Government or the concerned officer passed what was called a non-speaking order,
that is, an order which on the face of it did not specify the reasons for the
Where a speaking order was passed the Courts proceeded to consider
whether the reasons given for the order or decision were relevant reasons. Where
there was a non-speaking order they used to say that it was like the face of the
Sphinx in the sense that it was incurable and therefore hold that they could not
consider the question of the validity of the order. Even in England the Courts
have travelled very far since those days. They no longer find the face of the
The prerogative powers of writ jurisdiction conferred by the
constitution for judicial review of administrative action is undoubtedly
discretionary and yet unbounded in its limits. The discretion however should be
exercised on sound legal principles. In this respect it is important to emphasis
that the absence of arbitrary power is the first essential of the rule of law
upon which the whole constitution system is based. In a system governed by rule
of law when discretion is conferred upon the executive authorities it must be
based on clearly defied limits.
- Principles of administrative law by M P JAIN & S N JAIN
- The constitution of India
- The regulating act, 1773
- Regulating act, 1773
- Charter of 1773
- An exclusive right or an official order by the government.
- AIR 1965 SC 1150.
- 1961 AIR 1457, 1962 SCR (1) 574.
- Article 32 sub-clause 1 of the Indian constitution
- Article 32 sub-clause 2 of the Indian constitution.
- Article 32 sub-clause 3 of the Indian constitution.
- Article 32 sub-clause 4 of the Indian constitution.
- Right to life and liberty.
- Habeas Corpus.
- (1978) 4 SCC 409.
- AIR 1980 Raj 207
- AIR 1973 Pat 85
- AIR 1954 Pat. 297.
- Definition of state.
- 1968 1 All ER 694 (supra).