Theoretical overview
A writ is a formal written order issued by anybody, executive or judicial, authorised to do so. In modern times, this body is generally judicial. Therefore, a writ can be understood as a formal written order issued by a court having authority to issue such an order. Orders, warrants, directions, summons etc are all essentially writs. A writ petition is an application filed before the competent court requesting it to issue a specific writ.
Writs of Habeas Corpus
Habeas corpus is a prerogative writ, which was granted to a subject of His Majesty, who was detained illegally in jail. It is an order of release. The writ provides remedy for a person wrongfully detained or restrained. By this a command is issued to a person or to jailor who detains another person in custody to the effect that the person imprisoned or the detenu should be produced before the Court and submit the day and cause of his imprisonment or detention. The detaining authority or person is required to justify the cause of detention. If there is no valid reason for detention, the Court will immediately order the release of the detained person.
The personal liberty will have no meaning in a constitutional set up if the writ of habeas corpus is not provided therein. It is available only in those cases where the restraint is put on the person of a man without any legal justification.
An application for habeas corpus can be made by any person on behalf of the prisoner as well as by the prisoner himself, subject to the rules and conditions framed by various High Courts.
Thus the writ can be issued for various purposes e. g.
1) Testing the validity of detention under preventive detention laws;
2) Securing the custody of a person alleged to be lunatic;
3) Securing the custody of minor;
4) Detention for a breach of privileges by house;
5) Testing the validity of detention by the executive during emergency, etc.
Grounds of Habeas Corpus
The following grounds may be stated for the grant of the writ: –
1) The applicant must be in custody;
2) The application for the grant of the writ of habeas corpus ordinarily should be by the husband or wife or father or son of the detenu. Till a few years back the writ of habeas corpus could not be entertained if a stranger file it. But now the position has completely changed with the pronouncements of the Supreme Court in a number of cases. Even a postcard written by a detenu from jail or by some other person on his behalf inspired by social objectives could be taken as a writ-petition.
3) A person has no right to present successive applications for habeas corpus to different Judges of the same court.
4) All the formalities to arrest and detention have not been complied with and the order of arrest has been made mala fide or for collateral purpose.
5) The order must be defective in substance, e.g., misdescription of detenu, failure to mention place of detention etc.
6) It must be established that the detaining authority was not satisfied that the detenu was committing prejudicial acts, etc.
Writ of Mandamus
Nature And Scope
A writ of mandamus is in the form of command directed to the inferior Court, tribunal, a board, corporation or any administrative authority, or a person requiring the performance of a specific duty fixed by law or associated with the office occupied by the person.
The writ is issued to compel an authority to do his duties or exercise his powers, in accordance with the mandate of law. The authority may also be prevented from doing an act, which he is not entitled to do. The authority, against which the writ is issued, may be governmental or semi-governmental, or judicial bodies. An order in the nature of mandamus is not made against a private individual. The rule is now well established that a writ of mandamus cannot be issued to a private individual, unless he acts under some public authority. A writ can be issued to enforce a public duty whether it is imposed on private individual or on a public body.
The Court laid down that public law remedy mandamus can be availed of against a person when he is acting in a public capacity as a holder of public office and in the performance of a public duty. Mandamus can be issued against a natural person if he is exercising a public or a statutory power of doing a public or a statutory duty.
Grounds of The Writ of Mandamus
The writ of mandamus can be issued on the following grounds:
I. That the petitioner has a legal right.
II. That there has been an infringement of the legal right of the petitioner;
III. That the infringement has been owing to non-performance of the corresponding duty by the public authority;
IV. That the petitioner has demanded the performance of the legal duty by the public authority and the authority has refused to act;
V. That there has been no effective alternative legal remedy.
The writ of mandamus is available against all kinds of administrative action, if it is affected with illegality. When the action is mandatory the authority has a legal duty to perform it.
Where the duty is not mandatory but it is only discretionary, the writ of mandamus will not be issued. A writ of mandamus will not be issued unless an accusation of non- compliance with a legal duty or a public duty is levelled. It must be shown by concrete evidence that there was a distinct and specific demand for performance of any legal or public duty cast upon the said party declined to comply with the demand.
Against Whom A Writ Of Mandamus Cannot Be Issued?
Writ of mandamus is issued generally for the enforcement of a right of the petitioner. Where the applicant has no right the writ cannot be issued. It cannot lie to regulate or control the discretion of the public authorities.
The writ of mandamus will not be issued if there is mere omission or irregularity committed by the authority. It will not lie for the interference in the internal administration of the authority. In the matters of official judgment, the High Court cannot interfere with the writ of mandamus.
Writ of Certiorari
Definition And Nature of Writ of Certiorari
Certiorari is a command or order to an inferior Court or tribunal to transmit the records of a cause or matter pending before them to the superior Court to be dealt with there and if the order of inferior Court is found to be without jurisdiction or against the principles of natural justice, it is quashed:
“Certiorari is historically an extraordinary legal remedy and is corrective in nature. It is issued in the form of an order by a superior Court to an inferior civil tribunal which deals with the civil rights of persons and which is public authority to certify the records of any proceeding of the latter to review the same for defects of jurisdiction, fundamental irregularities of procedure and for errors of law apparent on the proceedings.”
The jurisdiction to issue a writ of certiorari is a supervisory one and in exercising it, the Court is not entitled to act as a Court of appeal. That necessarily means that the findings of fact arrived at by the inferior Court or tribunal are binding. An error of law apparent on the face of the record could be corrected by a writ of certiorari, but not an error of fact; however grave it may appear to be.
Certiorari is thus said to be corrective remedy. This is, of course, its distinctive feature. The very end of this writ is to correct the error apparent on the face of proceedings and to correct the jurisdictional excesses. It also corrects the procedural omissions made by inferior courts or tribunal. If any inferior court or tribunal has passed an order in violation of rules of natural justice, or in want of jurisdiction, or there is an error apparent on the face of proceeding, the proper remedy so through the writ of certiorari.
Certiorari Is A Proceeding In Personam
Unlike the writ of habeas corpus, the petition for certiorari should be by the person aggrieved, not by any other person. The effect of the rule of personam is that if the person against whom the writ of certiorari is issued does not obey it, he would be committed forthwith for contempt of court.
Certiorari is an original proceeding in the superior Court. It has its origin in the court of issue and therefore the petition in India is to be filed in the High Court under Article 226 or before the Supreme Court under Article 32 of the Constitution.
Grounds Of Writ Of Certiorari
The writ of certiorari can be issued on the following grounds: –
1) Want of jurisdiction, which includes the following:
(a) Excess of jurisdiction.
(b) Abuse of jurisdiction
(c) Absence of jurisdiction.
2) Violation of Natural justice.
3) Fraud.
4) Error on the face of records.
Writ Of Quo Warranto
Definition And Nature
The term quo warranto means “by what authority.” Whenever any private person wrongfully usurps an office, he is prevented by the writ of quo warranto from continuing in that office.
The basic conditions for the issue of the writ are that the office must be public, it must have been created by statute or Constitution itself, it must be of a substantive character and the holder of the office must not be legally qualified to hold the office or to remain in the office or he has been appointed in accordance with law.
As to the question that can apply for writ to quo warranto, it can be stated that any private person can file a petition for this writ, although he is not personally aggrieved in or interested in the matter. Ordinarily, delay and lashes would be no ground for a writ of quo warranto unless the delay in question is inordinate.
The remedy under this petition will go only to public office, the nature of quo warranto will lie in respect of any particular office when the office satisfies the following conditions:
1) The office must have been created by statute, or by the Constitution itself;
2) The duties of the office must be of public nature.
3) The office must be one of the tenure of which is permanent in the sense of not being terminable at pleasure; and
4) The person proceeded against has been in actual possession and in the user of particular office in question.
WRIT OF PROHIBITION
The writ of prohibition is an extraordinary prerogative writ of a preventive nature. It is issued before the disposal of a matter to prevent the court from exercising excess jurisdiction. It is different from writ of certiorari as it is issued after the disposal of matter. Prohibition is a discretionary writ.
Writ of prohibition prevents exercising of judicial or quasi-judicial powers of –
- Courts
- Tribunals
- Quasi-judicial authorities
- Officers or person
Scope of writ of prohibition –
- It is a judicial writ
- It can be issued against a judicial or quasi-judicial authority
- The principle underlying is prevention is better than cure.
Its grounds –
- Absence or access of jurisdiction. Bu in exercise of that jurisdiction, if court commits a mistake of fact or law, appeal cannot be made for writ of prohibition.
- Violation of natural justice
- Unconstitutionality of statute
- Infringement of fundamental right where proceeding are arbitrary and unreasonable.
An application of writ of prohibition can also be filed by stranger and not only by the aggrieved party itself. It does not apply to administrative authority discharging any person.
Relevant articles
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
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 32
Important case laws
Gopalan v. State – it was held that if a fresh and valid order justifying the detention is made by the time to the return to the writ, the court couldn’t release the detenu whatever might have been the defect of the order in pursuance of which he was arrested or initially detained.
Sunil Batra v. Delhi Administration – the court initiated the proceedings on a letter by a co- convict, alleging inhuman torture to his fellow convict. Krishna Iyer, J., treated the letter as a petition for habeas corpus. He dwelt upon American cases where the writ of habeas corpus has been issued for the neglect of state penal facilities like over-crowding, in sanitary facilities, brutalities, constant fear of violence, lack of adequate medical facilities, censorship of mails, inhuman isolation, segregation, inadequate rehabilitative or educational opportunities.
Vijaya Mehta v. State – There a petition was moved in the high Court for directing the state Government to appoint a Commission to inquire into change in climate cycle, flood in the State etc. Refusing to issue the writ, the Court pointed out that under Section 3 of the Commission of Inquiry Act, the Government is obligated to appoint a commission if the Legislature passes a resolution to that effect.
The Supreme Court has held in Daya v. Joint Chief Collector, that where the act against which mandamus is sought has been completed, the writ if issued, will be in fructuous. On the same principle, the Court would refuse a writ of mandamus where it would be meaningless, owing to lapse or otherwise.
In Niranjan Kumar Goenka v. The University of Bihar, Muzaffarpur – the Patna High Court held that writ in the nature of quo warranto cannot be issued against a person not holding a public office.
Points to remember
- Habeas corpus is a prerogative writ, which was granted to a subject of His Majesty, who was detained illegally in jail. It is an order of release. The writ provides remedy for a person wrongfully detained or restrained.
- The personal liberty will have no meaning in a constitutional set up if the writ of habeas corpus is not provided therein.
- A writ of mandamus is in the form of command directed to the inferior Court, tribunal, a board, corporation or any administrative authority, or a person requiring the performance of a specific duty fixed by law or associated with the office occupied by the person.
- Certiorari is a command or order to an inferior Court or tribunal to transmit the records of a cause or matter pending before them to the superior Court to be dealt with there and if the order of inferior Court is found to be without jurisdiction or against the principles of natural justice, it is quashed.
- The term quo warranto means “by what authority.” Whenever any private person wrongfully usurps an office, he is prevented by the writ of quo warranto from continuing in that office.
- The writ of prohibition is an extraordinary prerogative writ of a preventive nature. It is issued before the disposal of a matter to prevent the court from exercising excess jurisdiction. It is different from writ of certiorari as it is issued after the disposal of matter. Prohibition is a discretionary writ.
