Types of Writs in Indian Constitution
Writs are one of the fundamental rights which itself gives the power to protect the other fundamental rights. Writs are that procedure of Court which ensures the fundamentality of Rights provided by the Part III of the constitution.
Writ jurisdiction is extraordinary because it is vested only in the Court of record. Writ jurisdiction has been taken from the Court of King’s Bench v England. Writ means to write order. The Supreme Court can issue writs for only fundamental rights. But High Court can issue a writ for fundamental rights and also any other legal right if an alternative remedy is available. A person can go straight to the Supreme Court without having to undergo the proceeding of lower courts.
Against whom writ can be issued?
Generally, fundamental rights are enforceable against the ‘State‘ and the term ‘State‘ has been defined in Article 12. Therefore, authorities falling within the scope of Article 12 are amenable to the writ jurisdiction of the Supreme Court. Apart from that, there are certain fundamental rights like those mentioned in Articles 17, 23, 24 which are also available against private individuals. In such cases, the writ can be issued to private individuals as well. [People’s Union of Democratic Rights v. Union of India]
To understand the Writs first we have to know where it is mentioned and what it is the purpose of writs to be in the Indian Constitution. The term Writ is used in Article 32 and Article 226 of the Indian Constitution.
General introduction to Article 32 and Article 226:
There can be no right without an efficacious remedy. The fundamental rights guaranteed under the Constitution would be meaningless if the proper and effective mechanism for its enforcement is not provided. Constitution confers power on the courts to strike down the law which infringes fundamental rights. The importance of Article 32 can be seen from the fact that without that Article, the other fundamental rights would lose their very essence but it can be used against only violation of fundamental rights while Article 226 covers Fundamental rights as well as any purpose. Article 32 & 226 is the heart and soul of the constitution.
Article 32 reads as follows:
(1) The Individual has the right to move to the Supreme Court for the enforcement of the fundamental rights provided under part 3rd of the Constitution. This means if there is a violation of an individual’s fundamental rights then for enforcement of such fundamental rights he can move directly to the Supreme Court.
(2) The Supreme Court has the power to issue orders or writs, writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the fundamental rights conferred under the Constitution.
Article 226 reads as follows:
(1) The Individual has the right to move to the High Court by appropriate proceedings for the enforcement of the fundamental rights provided under Part 3rd of the Constitution and for any other purpose. This means if there is a violation of an individual’s fundamental rights or if a person is aggrieved in any other manner then for enforcement of such rights or such other purpose, he can move directly to the High Court.
(2) Where an application is made by a party or person against whom an interim order is made and he is aggrieved by that such order then the High Court shall dispose of the application within a period of two weeks upon receiving such applications.
(3) Power conferred on the High Court under this article shall not be derogatory of the power conferred on the Supreme Court under article 32.
Nature of Writs Issuable under the Indian Constitution:
There are five types or nature of writs, these are as follows:
1. Writ Of Mandamus:
The meaning of ‘Mandamus’ is ‘we command‘. It is a writ issued by the court to the public authority asking to perform the public duty enforced upon it by law. following are the essential conditions which are to be fulfilled for grant of mandamus:
(a) Legal Rights:
A person seeking a writ of mandamus must have legal Rights which he seeks to be enforced. They must be legally protected and judicially enforceable Rights.
(b) Legal duty:
The authority against whom the mandamus is sought must have a corresponding legal duty to enforce the right of the applicant. The performance of legal duty must be imperative and not discretionary.
(c) Demand & Refusal:
The applicant must demand the enforcement of legal Rights from the authority and the authority must have refused to act on such demand. Such refusal may be expressed or implied.
In Kumari Shrilekha Vidyarthi v. the State Of Uttar Pradesh, SC held that public authorities have to work fairly even in contractual matters and if they fail, individuals can approach under Article 226.
2. Writ of Habeas Corpus:
‘Habeas corpus’ is a Latin term and the meaning of ‘Habeas corpus’ is ‘to have the body’. The writ is in the nature of order calling upon the person who has detained another to tell the court what ground the person had been detained. The court will free the detained person if no reasonable justification can be shown by the prosecution. In this way, Habeas corpus provides a prompt and effective remedy against illegal detention.
This remedy is available not only against the state but also against the private individual. Generally while granting a writ of Habeas Corpus, the court will not award compensation but in appropriate cases, Court can grant compensation to effectively enforce the right.
In Rudul Sah vs the State of Bihar, SC observed that compensation is one of the ways in which violation of Article 21 can be avoided/prevented.
3. Writ of Prohibition:
It is a writ of preventive nature. It is an order directed to order direct to an inferior tribunal or court forbidding it from continuing with the proceedings on the ground that proceedings are not in conformity with the jurisdiction of the court or there is some error apparent on the face of the record. This writ prevents the court and other Quasi-judicial authorities from usurping the jurisdiction of exercising the jurisdiction not vested in them.
4. Writ of Certiorari:
The meaning of ‘Certiorari’ is ‘to certify’. This writ is issued for correcting the error of jurisdiction of subordinate court or tribunal. It is used to check whether authorities have exceeded the jurisdiction or not. It is also a kind of corrective writ wherein the court exercises supervisory jurisdiction.
Relation between Writ of Prohibition and Writ of Certiorari:
These two Complementary Writs are often known as Sister Writs. Both writs are issued against illegal proceedings of subordinate Courts. In certiorari, the pronounced illegal judgement is set aside. In prohibition, the writ Court transfers the case to that court which is competent Court while illegal proceedings are pending. This is the only difference between these two writs.
5. Writ of Qua-Warranto:
The meaning of ‘Quo-warranto’ is ‘What is your authority‘. It is a remedy available against the wrong use of the public office. Court call such person holding the public office to show to the court by which or by what authority he holds the office. If he has no authority then the person can be ousted from the office. Basically, this writ controls the executive action in the manner of making appointments to the public offices. It is essential that the office must be a public office and not a private office. The holder. of the office must assert the claim of office by housing actual occupation.
In Ram Singh Saini v. H.N. Bhargava, 1975 SC said that the Writ of quo warranto only lies for public office and cannot be issued against the private office.