Writ has been defined in the black’s Law Dictionary as “a court’s written order, in the name of a state or other competent legal authority, commanding the addressee to do or refrain from doing some specified act”. Writ has been a tool of aid for the downtrodden who aim to seek judicial remedy for violation of their rights. Writs in simplest of words can be said to be “a written order having a legal backing”. Historically, writs came into existence in the courts of English monarchs wherein a writ was simply a written order made by the English monarch to a specified person to undertake a specified action. However, with time the concept of writ has evolved to a great extent and is a prominent tool for the individuals whose rights have been violated to get justice in the present time. This piece would deal with the types of writs, writ jurisdiction of the High Court and the Supreme Court & other important concepts related to writs.
Types of Writs
There are five kinds of writs namely- Habeas Corpus, Mandamus, Certiorari, Prohibition, & Quo Warranto.
(I) Habeas Corpus: "Habeas Corpus" is a Latin term which literally means "you may have the body." The writ is issued to produce a person who has been detained, whether in prison or in private custody, before a court and to release him if such detention is found illegal.
(II) Mandamus: Mandamus is a Latin word, which means "We Command". Mandamus is an order from the Supreme Court or High Court to a lower court or tribunal or public authority to perform a public or statutory duty. This writ of command is issued by the Supreme Court or High court when any government, court, corporation or any public authority has to do a public duty but fails to do so.
(III) Certiorari: Literally, Certiorari means to be certified. The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court, tribunal or quasi judicial authority.
There are several conditions necessary for the issue of writ of certiorari.
- a) There should be court, tribunal or an officer having legal authority to determine the question with a duty to act judicially.
- b) Such a court, tribunal or officer must have passed order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or officer.
- c) c. The order could also be against the principles of natural justice or the order could contain an error of judgment in appreciating the facts of the case.
(IV) Prohibition: The Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, or quasi judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to try. After the issue of this writ, proceedings in the lower court etc. come to a stop.
Difference between Prohibition and Certiorari:
- 1. While the writ of prohibition is available during the pendency of proceedings, the writ of certiorari can be resorted to only after the order or decision has been announced.
- 2. Both the writs are issued against legal bodies.
(V) Quo Warranto: The word Quo-Warranto literally means "by what warrants?" or "what is your authority"? It is a writ issued with a view to restrain a person from holding a public office to which he is not entitled. The writ requires the concerned person to explain to the Court by what authority he holds the office. If a person has usurped a public office, the Court may direct him not to carry out any activities in the office or may announce the office to be vacant. Thus High Court may issue a writ of quo-warranto if a person holds an office beyond his retirement age.
Conditions for issue of Quo-Warranto
- 1. The office must be public and it must be created by a statue or by the constitution itself.
- 2. The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.
- 3. There must have been a contravention of the constitution or a statute or statutory instrument, in appointing such person to that office.
Writ jurisdiction of the High Court
Article 226 & 227 of the Indian constitution vests the high court with writ jurisdiction. Article 226 of the Indian constitution empowers the High Court to issue, to any person or authority, including the government (in appropriate cases), directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them. The scope of article 226 is very wide courtesy the term used “for any other purpose” in article 226. Remedy under writ jurisdiction of the high court is a discretional remedy subject to the satisfaction of the court.
Article 226 is supplementary to article 32. However, the scope of article 226 is wider than article 32 by virtue of the term used “for any other purpose” in article 226. The word “for any other purpose” involves enforcement of any rights other than fundamental rights. The proceedings under article 226 are of a summary nature.
This topic has been evolving with time as initially writ jurisdiction being a discretionary power of the court, the court could refuse to exercise its jurisdiction in case of an alternative remedy present. However, The Supreme Court in Mohd. Yasin v Town Area Committee held that an alternative remedy is not a bar to move a writ petition in the High Court to enforce a fundamental right. An exception to this is that in cases where the issue does not relate to enforcement of fundamental rights and there exists an alternative remedy, the parties must first exhaust the alternative remedy available. The Supreme Court in State of Uttar Pradesh v Md. Nooh held that the rule of exhaustion of remedy before invoking writ jurisdiction of the high court under article 226 is a rule of policy, convenience and discretion rather than a rule of law.
The Supreme Court in U P Jal Nigam v Nareshwar Sahai Mathur ; Titaghur Paper Mills Co. Ltd. v State of Orissa and HB Gandhi v Gopi Nath and Sons is that where statutory remedies are available or a statutory Tribunal has been set up, a petition under Article 226 should not be entertained, unless the statutory remedies are ill-suited to meet the demands of any extraordinary situation.
Writ Jurisdiction of the Supreme Court
Article 32 of the Indian constitution provides individuals with the right to approach the apex court in case they feel any of their fundamental rights have been violated. The apex court subsequently may issue writs or take necessary actions in order to restore the rights of the aggrieved. The individuals whose fundamental rights are violated now have the liberty to approach directly to the apex court of the country under article 32 rather than following a lengthier process of first moving to the lower courts for enforcement of their fundamental rights.
The constitutional remedies provided to the citizens are the powerful orders with immediate effect. And the writs are mostly invoked against the state and are issued when PILs are filed. The Writ Jurisdictions which are conferred by the Constitution though have prerogative powers and are discretionary in nature and yet they are unbounded in its limits. The discretion, however, is exercised on legal principles. Therefore, the powers under article 32 and article 226 are the main tools of the individuals for enforcement of their fundamental rights and help us do away with any arbitrariness or judgments based on whims and fancies, hence rightly called the heart and soul of the constitution.