Writs under Indian Constitution (Article 32) | Constitution Law | Legal Reasoning | CLAT Exam

In this Blog, Mr. Krishnaraj Choudhary will be teaching about Writs under Indian Constitution (Article 32) from Constitution Law for CLAT Exam.

Writs under Indian Constitution (Article 32)

What is Writ?
Fundamentally, 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. 

DIFFERENCE BETWEEN ARTICLE 32 AND 226

• Article 32 is a fundamental right. Article 226 is a constitutional right. 
• Article 32 can be suspended if an emergency has been declared by the President. Article 226 cannot be suspended even at the time of emergency. 
• Article 32 has a narrow scope as it is applicable only in case of violation of a fundamental right. Article 226 has a broade scope as it is applicable not only in the case of violation of a fundamental right but also of a legal right.
  

Article 32 empowers the Supreme Court to issue writ all over India. Therefore, the Supreme Court has broader territorial jurisdiction. Article 226 empowers the High Court to issue a writ in its own local jurisdiction only. Therefore, High Courts have narrower territorial jurisdiction as compared to the Supreme Court.

Since, Article 32 is a fundamental right, the same cannot be refused by the Supreme Court. Article 226 confers Discretionary power to the High Court which means it is at discretion of the High Court to issue a writ or not.

SUPREME COURT
1. ARTICL 32
2. LIMITED POWER- ONLY FUNDAMENTAL RIGHTS (PART III)
3. JURISDICTION OF SUPREME COURT 

HIGH COURT
1. ARTICLE 226
2. POWER WIDER-FUNDAMENTAL RIGHTS AND ORDINARY LAWS
Ex. State Legislature- Sales tax In Contravention of Article 226 Outside Part III of the Constitution
3. JURISDICTION OF HIGH COURT

Supreme Court vs High court
While citizens can approach the Supreme Court only when his Fundamental Right is infringed, the citizens also have the right to approach the High Court for the issue of Writs in other matters in which the fundamental rights are not violated. For e.g. in the case of Smt. Imtiaz Bano vs Masood Ahmad Jafri And Ors. a mother had filed a writ petition for habeas corpus under Article 226 to get custody of her 2 children. The High Court allowed the petition and the writ was issued in her favour. Thus, the scope of the power to issue Writs is wider in the case of High Courts as compared to the Supreme Court.

Illustration: A is an Indian citizen whose Fundamental Right has been violated. Here A has the Right to either approach the Supreme Court or the High Court for enforcing his right. But if there is a violation of A's right which is not a Fundamental Right then, he only has the right to approach the High Court under Article 226.

Therefore, a citizen has the right to approach either the Supreme Court or the High Court for issue of writs but if he chooses to approach any of the Court and his suit is dismissed by the court, the citizen cannot file the same suit in the other Court because in India, the principle of res judicata is being followed which means that a second case cannot be filed for the same cause of action.

But if a person files the case in the High Court and the High Court does not decide in his favour, he has the right to appeal against the decision in the Supreme Court.

Illustration: A files a suit under Article 226 in the High Court and the Court accepts his suit. After the proceedings of the case are concluded, the High Court ruled in favour of the defendant. Here A has the Right to appeal in the Supreme Court against the decision of the High Court. But if the High Court had rejected the suit filed by A, then he does not have the right to appeal in the Supreme Court.

Type Of Writs

1. बंदी प्रत्यक्षीकरण (Habeas Corpus)
2. परमादेश (Mandamus)
3. प्रतिषेध (Prohibition)
4. उत्प्रेषण लेख (Certiorari)
5. अधिकार पृच्छा (Quo Warranto)
   
   

Habeas corpus

• Means "Let us have the body" 
• This writ can be issued against public authority and also against individual.
• This writ cannot be issued in the cases where
  (a) Detention is lawful
  (b) Detained for contempt of court or legislature
  (c) Detained by a competent court,
  (d) If outside the territorial jurisdiction of court
• A writ of habeas corpus is used to bring a prisoner or other detainee before the court to determine if the person's imprisonment or detention is lawful. A habeas petition proceeds as a civil action against the State agent (usually a warden) who holds the defendant in custody
• The Writ of Habeas Corpus is issued by the Courts in those cases where a person is illegally detained. Habeas Corpus means 'to have the body' and it is one of the most effective remedies available to a person detained.
  By this Writ, the Court commands the person or authority who has detained or restrained another person to present such person before the Court. The Court requires the detaining person to provide the grounds on which the person has been detained and if he fails to provide a valid ground, the person who has been detained will be released by the Court immediately.
• Illustration: A is wrongfully detained by B, a police officer. A writes to the High Court regarding the same. The High Court summons B with A and asks the grounds for detaining A. If B fails to provide a valid ground or justification for A's detention, A will be free to go. Even though the purpose this Writ is to prevent a person from being detained but it will be applicable only when the detention or restraint is unlawful. If the Court finds the grounds for detaining to be justified then this Writ cannot be issued. Also, if the Court orders the detention of a person then it does not amount to unlawful detention and this Writ cannot be issued.
  This Writ can be applied not only by the person who is detaine but it can also be done by some other person on behalf of the detained person.
• This Writ will apply in case of an arrest made by the police when all the formalities and procedures which are required to be followed are not followed. For example the requirement of presenting the arrested person before a magistrate or the officer in charge of the police station.

Mandamus

• Means "We Command"
  Mandamus is an order from a superior court to a lower court, tribunal or public authority to perform an act, which falls within its duty, it is issued to a public official to do a thing which is a part of his official duty, but, which, he has failed to do, so far.
• This writ cannot be claimed as a matter of right. It is the discretionary power of a court to issue such writs.
• Mandamus का अर्थ होता है 'to give the mandate' तथा हिन्दी में परमादेश का अर्थ होता है 'हम आदेश देते हैं।
  A writ of mandamus is court order compelling someone to execute a duty that they are legally obligated to complete. A writ is also used to order a lower court or government agency to complete a duty to uphold the law or to correct an abuse of discretion.
  (यह रिट राष्ट्रपति तथा राज्यपाल के विरुद्ध जारी नहीं हो सकता)
• Mandamus is a Latin word, which means "We Command".
  Mandamus is an order from a superior court to a lower court or tribunal or public authority to perform an act, which falls within its duty. It is issued to secure the performance of public duties and to enforce private rights withheld by the public authorities. Simply, it is a writ issued to a public official to do a thing which is a part of his official duty, but, which, he has failed to do, so far. This writ cannot be claimed as a matter of right. It is the discretionary power of a court to issue  such  writs.
  
• 1. the writ of mandamus can only be granted when there is in the applicant a right to compel the performance of some duty cast upon the authority. the duty sought to be enforced must be a public duty and not a private duty.
  2. Thus writ of mandamus can be issued to public authority to restrain it from acting under a law which has been declared unconstitutional.
  3. the writ of mandamus can be granted only in cases where there is a statutory duty imposed upon the officer concerned, and there is a failure on the part of that officer to discharge the statutory obligation.
• 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.
  
  In the case of Vijaya Mehta v. State of Rajasthan, a petition was filed in the High Court for compelling the State to perform its duty of appointing a commission to look into the climate change and floods in the State. It was held by the Court that the State Government would have to appoint a commission only when a resolution was passed by the Legislature, moreover, it was a discretionary duty and not a mandatory duty, so the Writ of Mandamus was not issued in this case.

Quo Warranto

• Means "by what warrants?" or "by what authority"
  It is a writ issued with a view to restraining a person from
  acting in a public office to which he is not entitled. The writ of quo warranto is used to prevent illegal assumption of anybpublic office or usurpation of any public office by anybody
• अधिकार पृच्छा का अर्थ यह है कि उच्च न्यायालय अथवा उच्चतम न्यायालय किसी भी लोक अधिकारी से यह पूछ सकता है कि आप किस position से इसे पद को hold कर रहे हैं।
• For example, a person of 62 years has been appointed to fill a public office whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a Writ of quo- warranto against the person and declare the office vacant.
• 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 writ.
• 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.

Prohibition

• 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.
• Partly cloudy It is a writ issued by a superior court to lower court or a tribunal forbidding it to perform an act outside its jurisdiction. After the issue of this writ, proceedings in the lower court etc. come to a stop.
• अर्थात 'मना करना', यह writ किसी उच्चतर न्यायालय द्वारा अधीनस्थ न्यायालयों के विरुद्ध जारी की जाती है।
  Prohibition can be issued only against judicial and quasi- judicial authorities and not against administrative authorities, legislative bodies.
• refers "to forbid or to stop" and is popularly known as "Stay order". The writ is issued by the Supreme Court or any High Court when a lower court or a quasi-judicial body tries to violate the powers vested in it, prohibiting the latter from continuing the proceedings in a particular case.
• If the court or tribunals does not have jurisdiction and it still decides the case, it will be an invalid judgement 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 Court.

Certiorari

• Literally, Certiorari means to be certified.
  The writ of certiorari is issued by the Supreme Court to some inferior court or tribunal to transfer the matter to it or to some other superior authority for proper consideration. If rights of individual are affected then Certiorari writ can be filled against administrative authorities also.
• अर्थात Produce the Certificate
  अर्थात उच्चतर न्यायालय अधीनस्थ न्यायालय से किसी वाद के बारे में जो उस अधीनस्थ न्यायालय में चल रहा होता है, उसकी समिक्षा के लिए documents की demand करता है।
  इसका तात्पर्य यह नहीं है कि उच्चतर न्यायालय अधीनस्थ न्यायालय के निर्णय के विरुद्ध ही हो।
  It can be issue for transfer of case.
• Certiorari is a different type of writ when compared with other Writs. This Writ is corrective in nature which means the purpose of this Writ is to correct an error which is apparent on the records.
  There are various grounds on the basis of which the writ of certiorari is issued:
  (1) Lack of jurisdiction
  (2) Excess of jurisdiction.
  (3) Abuse of jurisdiction.
  (4) Violation of the principles of natural justice.
  (5) Error of law apparent on the face of the record
• There is a case in the District Court and the court has no jurisdiction to decide such cases. Still, the District Court Judge tries the case and gives his decision and an application is made by A (the aggrieved party by such decision) to the High Court. Hereby the power of issuing Writs, the High Court will issue a Writ of Certiorari on the order of the District Court, as a result, the order of the District Court will be quashed.

Difference between Certiorari and Prohibition
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.

Written By - KR Choudhary