WRITS OF THE COURT

“This particular Article in the Constitution as the most important article without which this constitution would be nullity - I could not refer to any other article except this one. It is very soul of the constitution and very heart of it” – Dr. Ambedkar.

Fundamental rights are contained in part III of the Indian Constitution including the Right to Equality, Right to life and liberty etc. Merely providing for fundamental right is not sufficient it is essential that these fundamental rights are protected and enforced as well. Fundamental right is also known as Guaranteed Rights, but you know who guarantees these rights or who is guarantor of these rights – The Supreme court and High courts. The Indian Constitution empowers the Supreme Court to issue writs for enforcement of any of the fundamental rights conferred by Part III of Indian Constitution under Article 32 while the High Courts can issue writs under Article 226 of the Constitution. The Parliament (under article 32) can empower any other Court to issue these writs since no such provision has been made so far only the supreme court and high courts can issue the writs and not any other court. Before 1950 only the high court of Calcutta, Bombay and Madras has the power to issue the writs.

What is a writ?

Writs of India are borrowed from English law where they are known as ‘Prerogative writs', Writs was first used to describe a written command of the King. A writ is a written official order issued by the court. The formal order may be in form of warrant, direction, command, order etc. All the writs can be called as order, but all order can’t be called writs, because the ambit of order is larger than writs.

There are 5 different types of writ provided under law:

· Habeas Corpus

· Mandamus

· Certiorari

· Prohibition

· Quo-warranto

Habeas Corpus

Habeas corpus is the Latin term which means ‘you must have the body’. It is the order issued by the court to present the detenu before the court and to check whether the arrest was lawful or not. Writ of habeas corpus is a powerful weapon available before a common man who has been wrongfully detained by the person or state. The court examines the cause and legality of detention, it would set the detained person free, if the detention is found to be illegal. This writ provides a fast and powerful remedy against illegal detention.

The writ of Habeas Corpus can be issued against both public authorities as well as private individuals. The writ on the other hand is not issued where the

· Detention is lawful,

· The preceding is for contempt of Legislature or a court,

· Detention is by a competent court and

· Detention is outside the jurisdiction of the court

ADM Jabalpur vs Shivkant Shukla (1976) 2 SCC 521

This case is known as habeas corpus case, here it is explained, what is a writ of habeas corpus mean? Quoting Justice Khanna “writ of habeas corpus is a process of securing the liberty of an aggrieved person by providing an adequate method for immediate relief from wrongful or illegal detention. Whether the person kept in wrongful custody is in prison or under private custody of an individual.”

Other leading cases:-

Rudal shah vs. state of Bihar

D.k basu vs. State of west Bengal

Mandamus

Mandamus is a Latin term which means ‘we command'. Mandamus is a judicial order issued in form of command to a public official asking him to perform his constitutionally mandated duty that he has failed or refused to perform. It can also be issued against any public body a corporation an inferior Court or Tribunal or government for the same purpose. It is an important writ to check arbitrariness of an administrative action. It is also called ‘Writ of Justice'. Its primary objective is to supply defects of Justice and prevent rights of citizen. Writ of mandamus cannot be issued by the higher authority to force their lower departments to act or do something which is against the law. So, basically this writ is a command to do or can also command not to do a particular act against the law, as the case may be.

The writ of mandamus cannot be issued-

a) The president or the governor of the state

b) Against a private individual or body

c) To enforce departmental instructions that does not possess statuary force

d) It will not lie against the state legislature

Certiorari

Certiorari means “to certify”. It is an order issued by the High Court to an inferior court or any authority exercising judicial or quasi-judicial functions. It is issued on the ground of excess of Jurisdiction or lack of Jurisdiction or error of law. Thus, unlike prohibition which is only preventive, certiorari is both preventive as well as curative. Previously, the writ of certiorari could be issued only against judicial and Quasi judicial authorities and not against the administrative authorities however in 1991 the Supreme Court ruled that the certiorari can be issued even against the administrative authorities affecting the rights of individuals. Certiorari is not available against legislative body and private individual or bodies. Earlier writ of certiorari was used as a writ of error. It was invoked only in criminal matters and later on was also used in civil cases.

Writ of certiorari may not be issued against:-

1. an individual

2. company

3. Private authority

4. An association or tribunals having no judicial or quasi-judicial powers.

5. Also can’t be issued for making declaration that an act or statute is ultra virus or unconstitutional. A.K Kripak vs. Union of India AIR 1970 SC 150, the Supreme Court issued the writ of certiorari to quash the selection list of the Indian Forest Service on the ground that one of the selected candidates was the ex-officio member of the selection committee.

Prohibition

The grounds for issuing the writs of certiorari and prohibition are generally the same. They have many common features too. The expression ‘prohibition’ literally means ‘to prohibit’. The writ of prohibition is a judicial order issued to a constitutional, statutory or non statutory body or person if it exceeds its jurisdiction or it tries to exercise a jurisdiction not vested upon them. Thus, writ of prohibition is available during the pendency of the proceedings and before the order is made. The object is to secure that the jurisdiction of an inferior court or tribunal is properly exercised and that it does not usurp the jurisdiction which it does not possess. The writ of prohibition can only be issued against judicial and quasi-judicial authorities and not against administrative authorities, legislative bodies, and private individuals or bodies.

Connecting the dots !

What is the distinction between Certiorari and Prohibition ?

The differnce between the two writs are that, both these writs are issued at different stages of proceedings. One is issued to the inferior court when such court acted without any jurisdiction then the person against the proceedings are taking place can move to the superior court for a writ of prohibition, whereas on the other hand for a writ of certiorari court have to hear the matter and gives decision on that and the aggrieved party can move to the superior court of issuance of writ. Further the order may be passed for quashing the decision on the ground of want of jurisdiction.

Quo-warranto

The meaning of word Quo warranto is 'by what authority'. It is a judicial order against a person who occupies a substantive public office without any legal authority. The person is asked to show by what authority he occupies the position or office. This writ is meant to oust persons, who are not legally qualified, fro substantive public posts. The writ of Quo warranto is to confirm the right of citizens to hold public offices. In this writ the court or the judiciary reviews the action of the executive with regard to appointments made against statutory provisions, to public offices. It also aims to protect those persons who are deprived of their right to hold a public office. The writ of quo warranto acts as a weapon for judiciary to control the execution from making appointments to public office against law.

Before issuing the writ of quo warranto certain conditions needs to be fulfilled: -

1. Office in question must be of public nature

2. It must be of a substantive character

3. Office must be of Statutory Nature

4. Actual occupancy- the person holding the public office must have been in the actual occupancy of the office and assert his right to claim it.

In University of Mysore v. Govinda Rao, the Supreme Court observed that the procedure of quo Warranto confers the jurisdiction and authority on the judiciary to control executive action in making the appointments to public offices against the relevant statutory provisions; it also protects a citizen being deprived of public office to which he may have a right.

How is the Writ Jurisdiction of High Courts Wider than the Supreme Court?

The Supreme Court can issue writs only for the enforcement of fundamental rights under Article 32, whereas the High Courts can issue writs for the enforcement of fundamental rights as well as for any other purpose i.e. enforcement of ordinary legal rights as well. This makes their writs jurisdiction wider. However, the territorial jurisdiction of the writs issued by the Supreme Court is applicable throughout the country while the writs issued by the High Court have validity only in the territory under the authority of the High Court or where the cause of action has arisen.

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Judicial Service Examination Questions

1. What writ can be issued for an illegal detention?

a) Writ of prohibition

b) Writ of mandamus

c) Writ of habeas corpus

d) Writ of quo warranto

2. Which of the following writ is not amenable to the principal of "res judicata "?

a) Mandamus

b) Certiorari

c) Quo warranto

d) Habeas corpus

3. In which one of the following cases it was held that no mandamus can be issued to enforce and act passed by the legislature ? [ u.p. p.c.s. 2010]

a) Supreme Court welfare association v union of India.

b) K. Roy v. Union of India.

c) Suresh seth v. Commissioner, Indore municipal corporation

d) State of Uttar Pradesh v. Shivshankar lal srivastava

4 . The case in which the Supreme Court has issued a writ of continuing mandamus is

[ Chattisgarh A.P.P. 2008]

a) State of Punjab v. Sukhpal Singh

b) Subhash v. State of bihar

c) Vineet narain v. U. O. I

d) Gracy v. Kerala

5 . A writ of mandamus will not lie against the [ Bihar (J) 2018]

a) President of India

b) Parliament

c) Local authorities

d) Courts and tribunals

6. A writ of mandamus can be issued [ Delhi A.P.P. 2010]

a) Only against subordinate courts

b) Against any person or authority

c) Only against tribunals

d) Only against the executive bodies

7. Which of the following protects personal freedom?

a) Quo warranto

b) Mandamus

c) Habeas corpus

d) Certiorari

8. The writ of habeas corpus :

a) To produce the body of a person illegal detained before a court

b) Respect the human right of a person

c) Stop the violation of a right of a person

d) None of the above

9. Writ of "quo- Warranto" can be filed by [ Bihar (J) 2018]

a) Any person aggrieved by public office

b) An executive in his official capacity

c) Any private person whether aggrieved or not

d) Only A and B

10 . The writ of "quo -Warranto" is issued [ U.P. P.C.S 2000]

a) The usurper of a public office

b) The appointing authority

c) The appropriate government

d) None of the above

11. The appropriate writ issued by the court to quash the appointment of a person to Public office is that's of - [ U.P. P.C.S 2000]

a) Prohibition

b) Quo warranto

c) Certiorari

d) Mandamus

12. Mandamus [Bihar (J) 2015 ]

a) Is issued to check the performance of duties of a public nature

b) Is issued to impede the performance of duties of a private nature

c) Is issued to compel the performance of duties of a public nature

d) None of the above

13 . What is the essential condition of the mandamus ? [Bihar (J) 2015 ]

a) The petitioner must have a legal right which can be judicial enforceable

b) The public authority concerned must do his duty

c) The petitioner should should not make a demand for the performance of the duty

d) None of the above

14. The writ of mandamus is issued to enforce [ Uttarakhand (J) 2002 ]

a) Arbitrary actions

b) Mandatory duties

c) Discretionary powers

d) None of the above

15. Which of the following writs can be sought to be issued to quash unconstitutional appointment to a public office : [ Delhi (J) 2014]

a) Quo warranto

b) Mandamus

c) Prohibition

d) Certiorari

16. In which of the following case the Supreme Court issued the writ of quo warranto asking the holder of a public office to vacate the office in question??

[ U.P. Lower (Special) 2008 ]

a) B. R. Kappor v. State of Tamil Nadu

b) Sital prasad saxena v. Union of India

c) H. S. Verma v. T. N singh

d) B. K. Mehta v. Union of India

17. An order or decision Which suffers from an error of law apparent on the face of record can be quashed by a writ of : [Delhi A.P.P 2010 ]

a) Certiorari

b) Mandamus

c) Prohibition

d) Quo-warranto

18. The writ of certiorari can be issued against [Bihar (J) 2009 ]

a) a person exercising purely administrative powers

b) Against a minister

c) Against any quasi judicial or judicial authority

d) Non of the above

19. In which one of the following case the writ of "quo- warranto" asking the holder of public office to vacate the office in question was issued ? [ U.P. P.C.S. 2010]

a) R. S. Chowdhary v. State of Punjab

b) B. K. Mehta v. Union of India

c) Mahendra lal Das v. State of bihar

d) U. N. Rao v. Indira Gandhi

20. Which among the following writs literally mean what is your authority?

[ M.P. (J) 2010]

a) Certiorari

b) Habeas corpus

c) Quo warranto

d) Prohibition

21. Writ of quo warranto is related with [ Bihar (J) 2009]

a) Illeagal detention of a person

b) Want of jurisdiction of a court

c) Illegal holder of a public office

d) None of the above

22. which one of the following writs can be issued only against judicial and Quasi- judicial authorities ?[ M.P. A.P.P. 2008]

a) Mandamus

b) Habeas corpus

c) Certiorari

d) Quo - warranto

23.A writ of ---------------------is issued to an inferior Court or Tribunal on the ground of exceeding jurisdiction or acting contrary to the rules of nature justice [M.P. H.J.S. 2012]

a) habeas corpus

b) quo Warranto

c) mandamus

d) Certiorari

24. Which one of the following writ can be issued only against judicial and Quasi - judicial authorities [U.P. P.C.S 2000]

a) mandamus

b) Habeas corpus

c) Certiorari

d) Quo warranto

25. Writ of certiorari shall be issued by the Supreme Court and high court against bodies[ A.P.P. (R.P.F.) 2010 ]

a) Having judicial and quasi - judicial

b) Having quasi judicial

c) Having judicial function

d) Having executive and judicial function

26. Habeas corpus literary means' have the corpus or bring the body under which case, habeas corpus will not be issued?

a)AK. Gopalan v. State of Madras

b) Batul chandra v. State of west Bengal

c) Both A or B

d) Neither A nor B

27. The doctrine of res judicata is not applicable in the case of the following writ:

a) Habeas Corpus

b) mandamus

c) Quo warranto

d) Certiorari

28. petitions to the supreme court under article 32 of constitution are subject to the rule of res judicata except :

a) Quo warranto

b) Habeas corpus

c) Certiorari

d) Prohibition

29. One of the remedies for false imprisonment is :

a) Mandamus

b) Habeas corpus

c) Quo warranto

d) Certiorari

30 .The principle of res judicata does not apply in case of writ of

a) Habeas corpus

b) Mandamus

c) Quo warranto

d) Prohibition

31 Writ of prohibition cannot be issued against

a) Executive body

b) Judicial body

c) Quasi - judicial body

d) None of the above

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1) c 2)d 3)a 4)c 5)a 6)b 7)c 8)a 9)c 10)a 11)b 12)c 13)a 14)b 15)a 16)a 17)a 18)c 19)a 20)c 21)c 22)c 23)c 24)c 25)a 26)a 27)a 28)b 29)b 30)a 31)a

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