Introduction
The concept of writs has been discussed under the Constitution of India in the form of Constitutional remedies where the Supreme court under Article 32 and High courts under Article 226 have been given such powers of writs jurisdiction in case of violation of fundamental rights.
The word writs is derived from the Latin word breve, which means a formal order issued by an official body exercising administrative or judicial jurisdiction, commonly known as courts nowadays. These writs have their origin in Anglo- Saxon kings, which were used by them to grant land and somehow employ them for judicial purposes.
As we look into the origin of Writs in India, we can refer to the Regulating Act of 1773, under the aegis of which the Supreme Court was established at Calcutta. Enormous powers were laid down under the Charter which also established High Court. They were given power that was analogous to the powers of the Supreme court.
Types of writs
- Certiorari
- Mandamus
- Prohibition
- Habeas corpus
- Quo- warranto
- Certiorari– the word Certiorari is derived from the Latin word “Certiorari” which means to inform. Earlier it was considered as a royal demand for information. It is considered as one of the most important and reliable remedies and has been adopted by the Indian constitution under Article 226 as one of the prerogative writs against the decisions of the authority exercising judicial or quasi-judicial powers. It cannot be issued against legislative bodies and private bodies or individuals. Such types of writs play a major role where it not only prevents but also cures for the mistakes that might take place in the judiciary.
- Mandamus– in a literal sense, mandamus means “we command”. The courts use this type of writ to order the public official who has failed to perform the duties assigned to them or refused to perform or does not resume his work. However, these writs can be issued against any public body, a corporation, an inferior court, a tribunal, or a government for related purposes. But there are certain restrictions for its enforcement i.e., it cannot be issued to enforce the departmental instructions that do not have sufficient statutory force or against which do not enforce contractual regularities.
In the case of Tata Cellular v. Union of India[1], it was reiterated by the Supreme Court that it would not be easy for us to interfere in the contracts executed by the governments as well in the case of tenders and refusal of tenders as would be considered illegal, unfair and unreasonable.
- Prohibition– the literal meaning of the word prohibition means “to forbid”. It is usually laid down by the court which is superior or stands in a higher authority against an authority that is lower in position to prevent the latter from exceeding its jurisdiction beyond to what is granted to them. It means to stop them from further performing acts for which they do not have sufficient authority. But this writ cannot be issued against any administrative authority, legislative bodies, private individuals, or private bodies.
- Habeas corpus– As w are aware of the fact that the word habeas corpus means “to have the body of”. This is one of the best remedies available in the Indian Constitution to enforce the fundamental rights against unlawful detention. The Supreme Court as well as the High Courts are empowered under this writ to order the person who has arrested another person to bring the body of the latter before the court. It is applicable only when the detention is unlawful when the proceeding is against the contempt of court or legislature, where detention is done by a court which does not have jurisdiction for the same or outside its jurisdiction.
In the case of Sunil Batra v. Delhi Administration[2], the court initiated criminal proceedings based on a letter received from a convicted person. Here, the letter was treated as a petition for habeas corpus.
- Quo- warranto– in a general sense, Quo- Warranto means “by what authority or warrant”, meaning thereby by what authority you are holding a public office. It is the power of the Supreme Court and High Court to issue such writs to prevent the illegal occupying of public office by a person. But the basic requirement for the applicability of the writ is that it only applies when the substantive public office of a permanent character has been created by a statute or by the Constitution of India. It also cannot be issued against any private office or offices held by a minister.
In the case of Purushottam lal v. State of Rajasthan[3], it was held by the court that writ of quo- warranto cannot be issued against a CM of a State where he has failed to perform the constitutional obligations and duties assigned to him.
It was held in the case of Niranjan kumar Goenka v. The University of Bihar[4] that writ of quo- warranto cannot be issued against a person who is not occupying or holding a public office.
Conclusion
Though the Supreme Court and High Court have enormous powers with them, but with tool of writs, they play a major role in the enforcement of fundamental rights. These writs are like a command to those who are holding public offices and who duty to perform it. These writs have improved the scope of powers given to the judiciary.
This article is written by Yash Kumar Gupta, Himgiri Zee University, Dehradun
[1] 1996 AIR 11,1994 SCC(6) 651
[2] 1980 AIR 1579
[3] AIR 1979 Raj 18
[4] AIR 1973 Pat 85
