Right to Constitutional Remedies (5 Writs)

Table of Contents

Introduction

Writs of India are borrowed from English law where they are known as ‘Prerogative writs’. Under article 32 the Supreme court acts as a guarantor and defender of the fundamental rights. Also, it is originally under the Supreme Court’s jurisdiction power to issue the writs. It means that a aggrieved person can directly approach the Supreme court for the remedy.

Also, it is important to note that article 32 can be invoked only to get remedies related to fundamental rights. Thus, it cannot be there for any other legal or constitutional right. For these rights, there are different laws available.

Thus, under Article 32 of the Indian Constitution, the Supreme Court has the power to issue directions, written orders in the form of Writs for the enforcement of the Fundamental Rights while under Article 226 of the Indian Constitution, the High Courts have the power to issue writs for the enforcement of the Constitutional Rights.

Some Facts about writs in India

Article 32 also empowers Parliament to authorize any other court to issue these writs.
Before 1950, only the High Courts of Calcutta, Bombay, and Madras had the power to issue the writs.
Article 226 empowers all the high courts of India to issue the writs.

These are as follows:

1- Habeas Corpus

2- Certiorari

3- Mandamus

4- Quo-Warranto

5- Prohibition

Habeas Corpus:

It is a Latin term which means ‘you may have the body’/ ‘let us have the body’.
This writ protects an individual from unlawful detention.
The writ is issued in the form of an order calling upon the person by whom another person is detained to bring that person before the court and to let the court know by what authority he has detained that person.
The court then examines the grounds on which the individual has been detained.
If the detention has no legal justification, the detained person is set free.
The writ can be issued against public authority and also against individuals.
It is to be noted that the writ cannot be issued in the cases where;

(a) the detention is lawful

(b) the proceeding is for contempt(misleading/disrespect) of a legislature or a court

(d) The detention falls outside the jurisdiction of a particular High Court.

An individual can seek compensation from the state against the arbitrary detention.
The petition under this writ can be filed by the detainee, prisoner or by any person on behalf of the detainee/prisoner.
The writ of Habeas Corpus cannot be suspended even during the emergency under Article 359.

Mandamus:

It means ‘we command‘.
It is an order issued by a superior court commanding a lower court or public authority to perform his official duties correctly.
The writ of Mandamus can be issued against any public body, a corporation, an inferior court, a tribunal or government itself.
It is an important writ to check arbitrariness of an administrative action. It is also called ‘Writ of Justice’
It cannot be issued against a private individual or body.
This writ cannot be issued against the President of India or the State Governors; Chief Justice of a High Court acting in a judicial capacity.
This writ is a discretionary remedy and the Courts may refuse to grant it where some alternate remedy is available.

Prohibition:

It means: ‘to forbid‘ or ‘Stay order’.
It is issued by a higher court to make a lower court action inactive, when it crosses its jurisdiction (in case of excess or absence of jurisdiction).
It is a writ issued by superior Court to Lower court or Tribunal when it performs an act which is outside its jurisdiction.
It can only be issued against judicial and quasi-judicial authorities.
It is preventive writ in nature.
It is not available against administrative authorities, legislative bodies, and private individuals or bodies.

Certiorari:

It means ‘to be certified‘ or ‘to be informed’.
It is issued by the Supreme Court and High Courts to a lower court, tribunal or Quasi-judicial body usually to quash the judgment passed by them.
The writ of certiorari is issued to a lower court directing the transfer of a case for review, usually to overrule the judgment of the lower court. It is issued in case when the decision passed by the lower court is challenged by the party. It not only prevents but also cures for the mistakes in the judiciary.

It is issued in case the higher court finds it a matter of over jurisdiction or lack of jurisdiction.
This writ is unavailable against the equal or higher court and is only available against the lower courts.

Note: Writ of certiorari is issued to quash an order wrongfully passed by an inferior court whereas writ of prohibition is issued to stop the court from proceeding in the case.

Writ of prohibition is issued while the proceedings are pending whereas writ of certiorari is issued when an order is passed.

Quo-Warranto:

It means ‘by what authority or warrant‘ or ‘by what warrants’.
It is issued by the court against the person who usurps(take over) a public office illegally.
It enquires the legality of usurpation of public office by a person.
It is a writ issued with a view to restrain a person from acting in a public office to which he is not entitled to. The writ of quo warranto is used to prevent illegal assumption of any-office for or usurpation of any public office by anyone.
The writ cannot be issued against a ministerial office or private office.

High Court and Supreme Court

As mentioned above, the supreme court can issue the writ through article 32. While the high court can issue this writ through article 226, the high court can issue writ for the enforcement of fundamental rights along with the other rights but SC can issue writs only in the case of violation of fundamental rights or Part III of the Constitution. So, it can be said that the high court has wider jurisdiction than the Supreme court when it comes to the matter of issuing writs. The high court can issue a writ only under its own territorial jurisdiction. While the Supreme court can issue it against a person or authority within the boundaries of India.

Conclusion

Article 32 of the Indian Constitution is known as ‘the heart and soul of the Constitution’ and provides the Fundamental Rights to Indian citizens while Article 226 of the Indian Constitution gives discretionary power to the High Courts to issue Writs.

Thus, it can be said that Articles 32 and 226 are slightly different in terms of powers but both of them ensure that the rights of the Indian citizens are protected and provisions of the Constitution of India are upheld.