In our Constitution, fundamental rights hold special importance as they ensure basic civic liberties for the citizens. However, it is important to note that these rights will lose all their significance if an aggrieved person doesn’t have any mechanism to approach the court for violation of his fundamental rights. Thus, keeping in view this need, the forefathers of our Constitution provide us with the “right to constitutional remedy” under Article 32 and 226 of the constitution. We can approach the court for the issuance of a particular writ for the protection of our rights. In this article, we will explore the meaning of Article 32 and 226. We will also delve deep into the meaning and type of writs that can be issued by our hon’ble courts.
Meaning of Writ
The literal meaning of the term “writ” is a legal document that is issued by the court which orders a person or entity to perform a specific act or to forbid him from performing a specific action. All the orders, warrants, directions, summons etc. are the instruments of issuing a writ.
The concept of the writ was adopted from the British constitution. It was simply a written order made by the English Monarch to a specified person to undertake a specified action. The Writs are given under Article 32 and 226 of the constitution of India. DR. B.R Ambedkar called Article 32 and 226 of the Indian Constitution i.e. Right to Constitutional remedies as ‘the central core of the Constitution’.
The Writs under the constitution of India ensures that our rights remain protected. It is because there will be no authority of rights if there will be no remedy that can be used at the time of their violation.
Writs under the constitution of India
Dr B R Ambedkar regarded Article 32 as ‘the Right to Constitutional remedies as ‘the heart and soul of the Constitution’’ and the “most important article of the constitution without which the Constitution would be a nullity”.
Article 32(1) – “The right to move the Supreme Court by proper procedures for the authorization of the rights gave by this Part is ensured.”
Article 32(2)– “The Supreme Court of India will have the capacity to give headings or requests or writs, remembering writs for the idea of habeas corpus, mandamus, disallowance, quo warranto, and certiorari, whichever might be fitting, for the implementation of any of the rights gave by this Part.”
This article makes the Supreme Court both the guarantor and defender of our Fundamental Rights. However, this right can only be exercised for violation of our fundamental rights as mentioned under Article 12 to 35 in our Constitution. As per this Article, the President can suspend the right to approach the court for the enforcement of our fundamental rights.
Hence, the SC shall have the power to issues directions, or orders, or writs like Habeas corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari.
It enables the High Court to issue writs for the enforcement of Fundamental Rights and also other ordinary legal rights. The scope of the High Court’s jurisdiction is much wider than that of the Supreme Court. Under Article 32, we can approach the Supreme court for the enforcement of our fundamental rights but under Article 226, we can approach the court for the enforcement of both the fundamental and the constitutional rights.
Constitutional Rights refer to those rights which are conferred to all the citizens and are enshrined in the Indian Constitution but they are not mentioned under Part III of our Constitution.
Who Can Approach the Court For Enforcement of a Writ
In India, an individual whose fundamental rights are violated through administrative or judicial authorities can approach the court for the remedy. It is also important to note that even a foreign individual can also approach the court for enforcement of certain fundamental rights enjoyed by them like Articles 14, 21, 25, etc.
In recent times, the Supreme Court has introduced a concept of Public Interest Litigation (PIL) wherein a public-spirited citizen can also approach the court on behalf of poor and aggrieved people. The rule of locus standi is relaxed to ensure that justice shall also be reached the marginal section of the society.
Type of Writs Under the constitution of India
Writs are a quick remedy against injustice. It was originated in Britain, where King’s or Queen’s gave prerogative writs to judicial tribunals or other bodies to do something.
Five kinds of writs:-
- Habeas corpus
- Quo Warranto
Now we will read all the kinds of writs which we can use accordingly-
Habeas Corpus– It means that “you may have the corpus, or bring the body”. These Writs are issued for securing the release of a person from illegal detention. This writ is the foundation of our personal liberty. It is the most important Writ when it comes to maintaining the liberty of movement. The main objective of Habeas Corpus is to set free at large a person who has been illegally detained by any person, or authority. It is a writ that gives a quick and immediate remedy. The person who has been taken behinds bars by Illegal detention can use this writ.
Illustration – If a person named X was illegally detained by the police and didn’t participate in the election. Now, his legal right is violated, the court can issue the writ of habeas corpus.
Who can apply?
The person who is-
- Illegal detention can apply for this remedy.
- Sometimes the person who is illegally detained cannot apply for this remedy. So in such a case, application for the writ of Habeas Corpus can be made by any person on behalf of the prisoner.
- in recent times, a letter sent to the judge mentioning all the illegalities committed on prisoners in jail can be admitted as a petition. In the case of Sunil Batra vs Delhi Administration., a convict had written a letter to a judge of Hon’ble Supreme court reciting all the inhuman torture to his fellow convict. The late justice Krishna Iyer treated the letter as a petition of habeas corpus.
- The court can also take Suo motu cognisance in the interests of justice on account of any sort of information is received.
Conditions to grant of Habeas Corpus
The following conditions are necessary to issue the writ of Habeas Corpus:
- The Detention must be illegal or unwarranted by law
- The detention should be illegal at the time of filing the application, or at the time of the hearing.
Illegal Detention- Detention is not legal at the time of filing the application.
- Where detention is under some provision of law and if that provision is unconstitutional, it is also illegal detention.
When this writ is refused?
1. Where the person is detained falls outside the jurisdiction of the court.
2. To save the release of a person who has been convicted for a criminal offence.
3. This writ can’t be issued in contempt of court proceedings.
Cases on Habeas corpus
ADM Jabalpur v. Shivakant Shukla
It was held by our hon’ble court that the writ of Habeas Corpus cannot be suspended even during the period of the emergency.
In this case, it was held that where the detention by authorities conforms to the procedure established by law and the provision of law is not unconstitutional the writ of Habeas corpus will not be issued.
It was held that an advocate in his capacity as an advocate cannot make an application on behalf of the detainee unless he holds a power of attorney from the detainee.
The Latin meaning of the term is “we command”. Mandamus’ is an order issued by the Supreme Court, High court, Public Authority or Corporation or a person invested with public duty. The main objective of this writ is to ensure sure that the power or the duties are not misused by the executive or administration.
- It is a command to perform some public duty in which the petitioner has performed his part and in which the petitioner has sufficient legal interest.
- It is the order of the Superior Court to do or forebear from doing something like Public Duty.
- Illustration – If A has a certain obligation to B, then A can seek a writ of Mandamus directing B to perform its legal duties.
Who may apply for Mandamus?
- The person whose legal right is violated by the non-performance of public duty can apply for the Writ of Mandamus.
The following conditions must satisfy:-
- The petitioner must have a legal right that can be judicially enforceable.
- There must be some duty cast on the respondent.
- The duty must be public and mandatory nature cast by law
- The petitioner must have made the demand for the performance of that duty.
- The public authority or officer concerned must refuse to do that duty.
Against whom Mandamus lies?
- The writ of Mandamus lies against public authority to restrain it from acting under the law which has been declared unconstitutional.
- This writ will also be issued against a person holding a public office, permanent, or temporary public body, or corporation, or an inferior court, or tribunal.
- If an alternative civil remedy is available, the writ of mandamus may be generally refused.
Against Whom this Writ is not Applicable
(1). The writ of mandamus can’t be issued against the President or the Governor of a State.
(2). This writ will not lie against the State or central legislature to prevent them from enacting a law that is alleged to be violative of constitutional provisions.
(3). This writ will not be applicable against an inferior or ministerial officer who is duty-bound to follow the orders of his superiors.
(4). This writ cannot be issued to enforce the contractual rights and obligations
Cases of Mandamus
Held- writ of mandamus does not lie against a private individual or private organization because they are not entrusted with a public duty.
- The publisher of an Oriya book applied for a writ of mandamus to compel the Director of Public Instructions to include her book in the list of books approved for school.
- The court refused, since the choice of books was entirely a matter within the discretion of the Director of Public Instructions.
- There was no legal duty to compel the Director of Public Instructions to include the Petitioner’s book on the list.
The literal meaning of this writ is “by what warrant or authority”. Quo Warranto is a judicial order to a person who has illegally occupied or usurped an office, or post, to show by what authority he is holding that office.
Writ of quo-warranto is to prevent a person to hold an office, which he is not legally entitled to hold.
Illustration – If a person who has no qualifications for the post of sub-inspector assumes such office, then a Writ of Quo Warranto can be issued against him to ask his authority by which he has acquired this position.
Who can apply?
Any person can move a petition on the ground that the holder of an office is a usurper without any valid claim.
- A petition for the writ of Quo Warranto can be filed by any person though he is not an aggrieved person.
- The office must be the public office
- It is held by a person without legal authority.
- The office must be created by a statute or by the constitution itself.
- The office must be of substantive nature and not merely a function of employment
- The term of the office must be of a permanent nature
Cases for Quo- Warranto
- The Bihar Arya Sabha is a private Association. Hence, the court refused to grant the writ of quo warranto, where the holder of the Public Office should not be legally qualified to hold the office.
- The Court held, that the writ of quo warranto can be issued against the Advocate general where the appointment of the Adv. Gen of M.P. was challenged by private individuals who had no legal interest in that office.
- The court can refuse the writ of quo warranto if it is vexatious, or where the petitioner is guilty of laches.
The literal meaning of the term is “to forbid or to stop”. The writ of prohibition is popularly known as a “stay order”.
- The writ like Prohibition is issued by a superior court to an inferior court, the tribunal also for quasi-judicial bodies.
- It prevents the inferior courts from exercising the jurisdiction which they do not possess, or which is not legally vested in them.
- The writ of prohibition is preventive in nature which ensures that the jurisdiction of an inferior court or a tribunal is properly exercised and that it does not encroach upon the domain of the other.
- Illustration – In the recent promulgated Insolvency and Bankruptcy code, the adjudicating authority is the National company law tribunal. However, if the civil court starts hearing the insolvency matters, then the writ of prohibition can be issued.
Who can apply?
The person whose right is violated can apply for the Writ of Prohibition.
Writ lies against judicial and quasi-judicial authorities. It will not lie against purely an administrative or executive.
- The writ can be issued only against judicial or quasi-judicial bodies.
- It can be issued when the judicial or quasi-judicial bodies exceed the jurisdiction.
- The proceedings must be pending before the inferior court at the time when this writ was issued.
- If a case involves a situation wherein the court is partly acting within its jurisdiction and partly outside it, then the Writ will be issued against the act which is partly outside the jurisdiction.
When can it be refused?
- The court can refuse to grant the writ of Prohibition where before issuing the writ the authority becomes “functus officio”.
Cases of prohibition
Madan Gopal v. UOI (1951)
- The SC held that where the defect in the jurisdiction is not apparent, also, where the appellant is guilty of supervision of material fact, the court can refuse to grant the writ.
- However, it can be granted where it is shown that the inferior tribunal is acting more than its jurisdiction.
The Latin meaning of the term is “search”.
- It Is issued by a superior court to an inferior court or quasi-judicial body, to act within the limits of its jurisdiction.
- Prohibition is used to prevent them from hearing the case beyond their jurisdiction.
- While certiorari is used the quash the order which has been decided.
- The writ can be issued even before the trial to prevent and excess, abuse of jurisdiction and to remove the case for trial to a higher court.
- It can be made without jurisdiction and in violation of the rules of Natural Justice.
- Thus it can be said that the writ of certiorari is not only negative in nature since it is used to quash an action that makes his nature curative.
- Illustration – If in a case, the District Court has no jurisdiction but it still tries the case and gives its decision. In this situation, the aggrieved party can make an appeal to either the Supreme court or the High court to issue a writ of certiorari to quash the order of the district court.
Who can apply?
Pet must be a person whose fundamental right, or another legally enforceable right has been violated.
- Excess of jurisdiction- Can be issued if the inferior court or tribunal acts without jurisdiction.
- Illegal exercise of jurisdiction- The Court cannot give itself jurisdiction by the wrong decision of the fact where the Court exercises the wrong jurisdiction then the writ will be issued.
- Error apparent on record– Where the error is one of law and apparent on the face of record than to quash such an erroneous decision the Court can issue the writ of Certiorari.
Against Whom This Writ Lies
Certiorari is not issued against purely administrative or ministerial orders and that it can only be issued against judicial or quasi-judicial orders.
Basappa v. Nagappa (1954)
- it was held by the constitution bench that the writ of certiorari is granted only when a court has acted (i) without jurisdiction or (ii) in excess of its jurisdiction.
In Surya Dev Rai v. Ram Chander Rai & Ors.
- The Hon’ble Court has explained the meaning and scope of the Writ of Certiorari. It was held that this writ is always available against the inferior courts and not against the equal or higher courts.
Bharat Barrel and Drum Manufacturing Co. v. L.K. Bose (1967)
- Held that court has to consider each case in the light of the facts and circumstances of that case and the provisions of that relevant statute, the nature of the issue involved during the inquiry, the nature of the order passed and the interest affected, thereby it can be said that, principles of natural justice have been followed or not.
Difference between Prohibition and Certiorari
Though both the writs appear to be the same there is some important difference between them. The Writ of Prohibition is a preventive remedy as the superior court issues the writ before the final order is passed by the inferior court while in the Writ of Certiorari the superior court issues the Writ after the inferior court has made the final order. Thus, it can be said that the Writ of Certiorari is a corrective remedy by which the order of an inferior court is quashed.
The right to constitutional remedy is a part of our basic structure and it can never be abrogated. Our Constitution has granted the supreme power to issue the writ to the Supreme Court and the High court as per Article 32 and 226 respectively.
There are mainly 5 types of writs in which the scope of mandamus is the widest one while all other writs are issued in specific circumstances only. These writs played a very instrumental role in the enforcement of justice.