Writs In Indian Constitution
The Constitution has constituted the Supreme Court as the guarantor and defender of the fundamental rights of the citizens. These writs are borrowed from English law where they are known as ‘prerogative writs’. The Supreme Court (under Article 32) and the high courts (under Article 226) can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto. Any individual, whose fundamental right has been violated, can directly move the Supreme Court for remedy. (Note-the Parliament (under Article 32) can empower any other court to issue these writs.)
Points to Remember:
The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a high court can issue writs not only for the enforcement of Fundamental Rights but also for any other purpose.
A remedy under Article 32 is in itself a Fundamental Right and hence, the Supreme Court may not refuse to exercise its writ jurisdiction.
On the other hand, a remedy under Article 226 is discretionary and hence, a high court may refuse to exercise its writ jurisdiction.
Let's proceed to understand the meaning and scope of different kinds of writs mentioned in Articles 32 and 226 of the Constitution. There are five types of writs under Indian constitution.
1.Habeas Corpus
2.Mandamus
3.Certiorari
4.Prohibition
5.Quo-warranto
1. Habeas Corpus -
It is a Latin term which literally means ‘to have the body of’.
It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. The court then examines the cause and legality of detention.
This writ is a bulwark of individual liberty against arbitrary detention.
The writ of habeas corpus can be issued against both public authorities as well as private individuals.
2. Mandamus-
It literally means ‘we command’.
It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform.
It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose.
3. Prohibition-
It literally, it means ‘to forbid’.
It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
The writ of prohibition can be issued only against judicial and quasi-judicial authorities.
4. Certiorari-
In the literal sense, it means ‘to be certified’ or ‘to be informed’.
It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case.
It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.
Note-
Previously, the writ of certiorari could be issued only against judicial and quasi-judicial authorities and not against administrative authories. However, in 1991, the Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting rights of individuals.
5. Quo-Warranto-
In the literal sense, it means ‘by what authority or warrant’.
It is issued by the court to enquire into the legality of claim of a person to a public office.
It prevents illegal usurpation of public office by a person.
The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution.
