Writs in Indian Constitution

The Indian Constitution empowers the Supreme Court and High Courts to issue writs for enforcement of any of the fundamental rights conferred by Part III of Indian Constitution

The writ issued by Supreme Court and High Court differs mainly in three aspects:

  • The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a High Court can issue writs for enforcement of fundamental rights along with “ for any other purpose” (refers to the enforcement of any legal right).
  • SC can issue writ against a person or government throughout the territory whereas High Court can issue writs against a person residing or against a government located within its territorial jurisdiction or outside its jurisdiction only if the cause of action arises within the territorial jurisdiction.
  • SC writs are under Article 32 which in itself is a fundamental right thus SC cannot refuse to exercise its writ jurisdiction. Whereas article 226 is discretionary thus HC can refuse to exercise its writ jurisdiction.

 

Habeus Corpus

  • Habeas corpus is a Latin term which literally means “You may have the body”
  • This writ can be issued against any person, Private or official
  • An order calling upon the person who has unlawfully detained another person to produce the later before the court to ascertain, whether the detention is legal or not
  • It is not essential to produce the detained person physically but what is important for the court is to obtain the knowledge or reason for detention
  • If the detention is found to be unlawful, court can set free the detained person

Mandamus

  • The Latin word ‘mandamus’ means ‘we command’.
  • The writ of ‘mandamus’ is an order of the High Court or the Supreme Court commanding a person or a body to do its duty.
  • Mandamus writ is used to command authority against both judicial & administrative, but entrusted only with public duty
  • A writ of mandamus can be granted only in cases where a statuary duty imposed on an officer concerned results in failure on the part of officer or public authority to discharge the statuary obligation
  • It is basically an order of superior court commanding a public officer or authority to do or not do something concerned with public duty
  • Aggrieved party have legal right to enforce its performance by issuing a writ of mandamus
  • Private rights or duty can not be enforced by it i.e. duty assigned by the law not by private individual or private organization 

 

Prohibition

  • The Writ of prohibition means to forbid or to stop and it is popularly known as ‘Stay Order’.
  • Writ of Prohibition is used against judicial & Quasi-Judicial authorities to command inactivity to certain judgment
  • Sole purpose of this writ is to prevent inferior courts from usurping a jurisdiction with which they are not legally vested >> Can be issued in excess or absence of jurisdiction
  • Issued by superior court to inferior court or tribunal to prevent it from exceeding its jurisdiction & compel it to be within its limits of jurisdiction

Certiorari

  • Literally, Certiorari means to be certified.
  • It is issued by the higher court to the lower court either to transfer the case pending with the latter to itself or to squash the order already passed by an inferior court, tribunal or quasi judicial authority.

 

Difference between Writ of Prohibition & Certiorari

  • A writ of prohibition is used to prevent an inferior court or tribunal to proceed the trial in excess of its jurisdiction whereas a writ certiorari is issued to quash the order of an inferior court or tribunal in excess of jurisdiction
  • A writ of prohibition is used before the order is passed by the court whereas a writ of certiorari is used to nullify an order already passed by the court
  • Prohibition can be issued only against judicial and quasi-judicial authorities whereas Certiorari can be issued even against administrative authorities affecting rights of individuals.

Quo Warranto

  • The word Quo-Warranto literally means “by what warrants?” or “what is your authority”?
  • It is a writ issued with a view to restrain a person from holding a public office to which he is not entitled.
  • The writ requires the concerned person to explain to the Court by what authority he holds the office.
  • If a person has usurped a public office, the Court may direct him not to carry out any activities in the office or may announce the office to be vacant.
  • Thus High Court may issue a writ of quo-warranto if a person holds an office beyond his retirement age.
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