Understanding Writs: Types and Differences

WHAT ARE WRITS?

Writs are written orders from the Supreme Court or High Court that commands constitutional remedies for Indian Citizens against the violation of their fundamental rights. In India, Articles 32 and 226 of the Indian Constitution deals with constitutional remedies that an Indian citizen can seek from the Supreme Court of India and any High Court in India, respectively, against the violation of his/her fundamental rights. These two articles of the Indian Constitution give both the Supreme Court and the High Courts the power to issue writs for the enforcement of rights as guaranteed by the Constitution. In this blog, we shall briefly discuss the inherent concept of Writs, its types and other relevant concepts abreast. Never blink so you don’t miss a point!

TYPES OF WRITS IN INDIA

There are mainly five kinds of writs that can be employed by Courts for enforcing the fundamental rights of the citizens in the country. While they are prevalent in India, they have their genesis from the common law system which are equally applied in all those other countries practicing the same principles of the common law jurisprudence. They include the following:

•       Habeas Corpus.
•       Mandamus.
•       Prohibition.
•       Certiorari.
•       Quo-Warranto.

HABEAS CORPUS

The Latin meaning of the word ‘Habeas Corpus’ is ‘To have the body of.’ This Writ is used to enforce the fundamental right of individual liberty against unlawful detention. Through Habeas Corpus, Supreme Court or any High Court can order a person who has arrested another person to bring the body of such arrested and probably detained person (detenu) before the competent court on demand. This Writ can be issued by the Supreme Court or High Court against both private and public authorities at the interests of justice. However, Habeas Corpus is not without limitations. It cannot be issued;

• When detention is lawful,
• When the proceeding is for contempt of a legislature or a court,
• When detention is by or under the instruction/order of a competent court, or
• When detention is outside the jurisdiction of the court.

MANDAMUS

The literal meaning of this writ is ‘We command.’ This writ is used by the Court to order the public official who has failed to perform his duty or refused to do their duty, to resume his work. Besides public officials, Mandamus can be issued against any public body, a corporation, an inferior court, a tribunal, or a government authority for the same purpose. Unlike Habeas Corpus, Mandamus cannot be issued;

•  Against a private individual,
•  To enforce departmental instruction that does not possess statutory force,
•  To order someone to work when the kind of work is discretionary and not mandatory,
•  To enforce a contractual obligation,
•  Against the Indian President or State Governors, or
•  Against the Chief Justice of a High Court while acting in a judicial capacity.

PROHIBITION

The literal meaning of ‘Prohibition’ is ‘To forbid.’ A Competent Court that is higher in position can issue a Prohibition Writ against a Court that is lower in position (For instance, by the Supreme Court against a High Court, or the High Courts against the subordinate Courts) to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. The essential purpose of this Writ of Prohibition is to direct inactivity or to demand for a stoppage in action. Besides, Prohibition can only be issued against judicial and quasi-judicial authorities. It can’t be issued against administrative authorities, legislative bodies and private individuals or bodies as these bodies functions under their other separate rules and regulations at different capacities.

CERTIORARI

The literal meaning of the writ of ‘Certiorari’ is ‘To be certified’ or ‘To be informed.’ This writ is issued by a court higher in authority to a lower court or tribunal ordering them either to transfer a case pending with them to itself or quash their order in a case. It is issued on the grounds of an excess of jurisdiction or lack of jurisdiction or error of law. It not only prevents but also cures for the mistakes in the judiciary. It serves a better purpose of checks and balance in the judicial system to rectify errors and mistakes by the lower Courts. This Writ can be issued against administrative authorities where their actions or inactions affects the rights of individuals in such settings. However, this Writ cannot be issued against legislative bodies in India.

QUO-WARRANTO

The literal meaning of the Writ of ‘Quo-Warranto’ is ‘By what authority or warrant.’ The Hon’ble Supreme Court or High Court can issue this Writ to prevent illegal usurpation of a public office by a person or persons. Courts use this Writ to enquire into the legality of a claim of a person to a public office and accordingly certify or nullify such actions whenever necessary. However, it has peculiar occasions on which it becomes necessary to invoke the same. It can be issued only when the substantive public office of a permanent character created by a statute or by the Constitution is involved. The same cannot be issued against private or ministerial offices in India.

CONCLUSION

These Writs are not only merely a few of the legal principles, they are very important principles of the common law system. They perform various distinct functions necessary for meeting the ends of justice. From demanding the body of a detenu to questioning the authority of public officers, they make sure that all actions of the Courts and other Public authorities work within their statutory powers and jurisdictions. They help to slaughter off the appetite for arbitrary actions usually peddled by ill intentions and selfish interests by the people in power.

By reading through this insightful Article, I hope you have learnt a thing or two. Keep this site very close to your clicks to satisfy your quests on legal research and perhaps for knowledge purpose.

💭Law Notes

Author: Charles Anyama Kalisto

5th Year Corporate Law Student (BA.LLB-HONS)

Marwadi University, Gujarat - India.

🖎 Writer