Karandeep
WRIT – A Vital Provision Furnished By The Indian Constitution
Karandeep Singh 31 Oct 2020

WRIT – A Vital Provision Furnished By The Indian Constitution

WRIT – A Vital Provision Furnished By The Indian Constitution

The Writ is a form of command or order written in the name of the court or other legal authority to do an act or to abstain from doing an act, which is issued by a judicial body. It is an order by a superior authority to an inferior authority; say The Hon’ble Supreme Court or The High Court orders to lower courts. Writ is both a fundamental right as well as a constitutional remedy. Any person whose fundamental right or any constitutional right has been infringed can file a writ petition before The Supreme Court under Article 32 and The High Court under Article 226. Both Articles of Indian Constitution are two different parallel spheres. Moreover, writs can be file in any case whether criminal or civil, depending on the nature of the case.

History

Writs were originated in England, but introduced in India in 1774 by Royal Charter of Britain when The East India Company was subjected to having the parliamentary control. For such control The Calcutta Supreme Court was established in which jurisdiction for writs was produced. After passage of time, Madras Supreme Court and Bombay Supreme Court was also introduced in 1800 and 1823 respectively. Later all three Supreme Courts were replaced as High Courts under The Indian High Court Act 1861, but the jurisdiction to issue writs remains only under these three above stated courts, only to the extent of Prohibition and Certiorari.

In 1950, Indian Constitution came into force which provides the authority of issuing writs to The Hon’ble Supreme Court (as fundamental right) under Article 32 and to The High Court (as protection of both fundamental rights as well as constitutional rights) under Article 226 of The Indian Constitution.

There are 5 types of writs specified under Indian constitution law-

 WRITS

 

Habeas Corpus          Mandamus     Prohibition      Certiorari        Quo-warranto

 

·        The writ of Habeas Corpus

The writ of Habeas Corpus is an origin of Latin phrase “You May Have The Body”, which means “to produce”. When a person arrested and not produce before the court within 24 hours (which is necessary) and detained illegally by the authority, the person can approach the court to file this writ against his illegal detention. If court finds that a person is illegally detained, the court can order the authority under this writ to produce that person before the court. However, this writ is not only made against the illegal detention but also for preserving the liberty of a person.

It has been seen that mostly those person who detained illegally can filed this writ before the court, but in some circumstances court has allowed that any other person related to prisoner whether a friend or a family member can file the same. This was held in Chiranjit Lal Chowdhuri vs. Union of India and Others 1951 AIR 41, 1950 SCR 869.

·        The Writ of Mandamus

Mandamus is a Latin word which means “we command”, which means that the superior authority can issue an order to the lower authority to perform an act, which falls under the sphere of the authority. This writ is a command or order directed to any person, corporation or an inferior tribunal, to do their assigned services. This writ cannot be claimed as a matter of right but can be consider as a discretionary power of a court to issue such writ.

The writ of Mandamus is issue only when there is breach of duty by the officials, but in such cases of alleged breach of duty, the party producing writ must show that he has made a distinct demand to enforce that duty and that demand was met with refusal.

However, this writ will not lie against the-

  1. President or governor of a state for the performance of their duty or exercise of their power.
  2. State legislature.
  3. An inferior or ministerial officer.
  4. Private individual or any private company.

In Praga Tools Corporation vs. Shri C. A. Imanual & Ors, 1969 AIR 1306, 1969 SCR (3) 773, it was held that writ of mandamus will not lie for an office which is of private nature, nor issued to secure the performance of an obligation owed by a company registered under the Companies Act, 1956. It was also held that if a writ of mandamus could not lie against a company which is neither a statutory company nor having public duties, no relief could be given by granting a declaration of the court on the agreement between the company and its workman.

·        The Writ of Prohibition

The writ of prohibition means “to forbid or to stop”. This writ is issued when a lower body tries to excess or cross the limits of powers vested in it or acting contrary to the rules of natural justice, which is issued by the superior authority while proceedings in a case. It can be seen that the writ of Mandamus commands doing of particular thing, whereas the writ of Prohibition addressed to a subordinate court commanding inactivity or to stop particular work.

In S. Govinda Menon vs. Union of India & Anr, 1967 AIR 1274, 1967 SCR (2) 566, the Supreme Court explained the jurisdiction of the court for granting the writ of prohibition. It said that the main object behind the writ of prohibition is to restrain inferior courts or tribunals from exceeding their jurisdictional limits. This writ is neither available against a public officer nor vested with judicial or quasi-judicial powers.

Grounds of issuing a Writ of Prohibition-

  1. Absence or excess of jurisdiction.
  2. Violation of natural justice.
  3. Unconstitutionality of Statute.
  4. Error of law Apparent on the face of Record.

·         The Writ of Certiorari

Certiorari means “to certify”. This writ is also issued as same as above to certify any authority. The Hon’ble Supreme Court or The High Court issues such writ to any inferior court for transferring the matters from one court to other or to quash the order passed by the court.

In Rafiq Khan and Anr. vs. State of Uttar Pradesh and Anr, AIR 1954 All 3, a Sub-Divisional Magistrate has modified the order of Panchayati Adalat beyond his authority, by maintaining the conviction of the accused in one of the offence and quashed his conviction for other offences. It was held by the Allahabad High Court that order of Sub-Divisional Magistrate is contrary and quashed the same by issuing a writ of certiorari.

The writ of certiorari can only be issued when an order beyond the jurisdiction power of the court is passed. The writ of prohibition puts barrier on the power of inferior authority, on the other hand writ of certiorari issued to restrict the inferior authority from excessive use of their powers. This writ can’t be issued against a Company, a Private authority, an Association or Tribunals having no judicial or quasi-judicial powers.

However, there are three main grounds of issuing a writ of certiorari-

1.      Want or excess of jurisdiction.

  1. Violation of procedure or disregard of principle of Natural Justice.

3.      Error in law apparent on the face of record.

 

·        The Writ of Quo-Warranto

The word Quo-warranto means “by what authority”. Its name itself indicates that it’s something like a question by the word QUO presented in its name. This writ is issued to prevent the person from wrongfully or forcefully holding any office and to ask that by what authority he is holding that office? This can be issued only if the office in question is a public office.

This writ can be claimed or filed only by those person who can satisfy the court that-

1.      The office in question is a public office.

2.      And the person illegally holding such office.

The writ of Qua-warranto is not issued against the office of a private nature. In Jamalpur Arya Samaj Sabha vs. Dr. D. Ram on 21 January, 1954, the High Court refused to issue a writ Qua-warranto against the members of the working committee on the Bihar Arya Samaj Sabha, which was a private association.

We have just seen and discussed about the writs available to citizens of India as fundamental right and constitutional rights. A most common question often arises is that in which jurisdiction authority a person shall file or produce an application for writ petition.

The constitution of India provides two separate provisions for writ jurisdiction within the sphere of The Hon’ble Supreme Court and The High Court:

A.   Article 32 of The Constitution of India (The Hon’ble Supreme Court)

A person can produce a writ petition before The Hon’ble Supreme Court of India under Article 32. This Article has been incorporated as a fundamental right and provides constitutional remedy against the violation of fundamental rights, which is guaranteed by Article 32(2). As per specific provision of Article 32(4) it cannot be suspended, except as provided in the Constitution i.e. in case of emergency provisions. The right to move The Supreme Court is an absolute right guaranteed under the Constitution.

B.   Article 226 of The Constitution of India (The High Court)

Similarly, a person can also file a writ petition under Article 226 before The High Court. Article 226 is not a fundamental provision, but a constitutional provision. However, the scope of the Article 226 is much wider than the Article 32 because it not only operates the violation of fundamental rights but also operates other provisions.

Conclusion

Whenever a person commits a crime, he is punished by the provisions prescribed under various acts provided by the Indian Legislature and justice is given to the injured. Similarly, when the fundamental right of a citizen is harmed or violated by someone, or whenever an authority is not functioning properly in accordance with its prescribed duties, or acts in excess of its vested powers, a specific writ petition can be filed by the citizen who injured under Article 32 and Article 226 of the Indian Constitution. While filing a writ petition an injured must makes it elucidate that for which purpose he is filing a petition because there are 5 different types of writs provided by The Constitution for different purposes, under different phases. It can concluded in the end that Indian Constitution provided to different base for writ which has different purpose as we discussed but there is main difference between the both that Article 32 has its jurisdiction throughout the country where The Hon’ble Supreme Court can issue writ to any authority throughout the country but Article 226 is limited only to the jurisdiction of The High Court of particular region or where the cause of action arisen.

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