SUN LEGAL
FAQ's: Writs under the Constitution of India



  • What is a Writ?
  • What is the difference between writs issued under Article 32 and Article 226?
  • What are the different types of Writs?
  • What is the Difference between Prohibition and Certiorari?
  • When can writs be issued?
  • Can a writ be filed against an individual or it is only maintainable against public institutions or organizations?
  • Is there any limitation period for filing a writ petition?
  • Who can file a Writ Petition in India?

1-What is a Writ?

-Writs are termed as written orders that are given by either the Supreme Court of India or the respective High Courts. The power to issue writs for the Supreme Court and the High Courts has been enshrined under Article 32 and Article 226 of the Constitution of India respectively.

2-What is the difference between writs issued under Article 32 and Article 226?

-Under Article 32, the Supreme Court can only issue directions, orders or writs with respect to the fundamental rights that are enshrined in Part III of the Constitution.

-Under Article 226, the High Courts can issue directions, orders or writs with respect to the fundamental rights that are enshrined in Part III of the Constitution or for any other purpose.

-The key differentiator herein is the fact that the Writ Jurisdiction under 32 is only limited to enforcing rights mentioned in Part III of the Constitution whereas the scope under Article 226 is wider and includes enforcement of other rights as well.

-It was observed by the Supreme Court in Poonam v. Sumit Tanwar, (2010) 4 SCC 460 that “The distinction in a writ petition under Article 226 and Article 32 of the Constitution is that the remedy under Article 32 is available only for enforcement of the fundamental rights, while under Article 226 of the Constitution, a writ court can grant relief for any other purpose also. (Vide A.K. Gopalan v. State of Madras [1950 SCC 228 : AIR 1950 SC 27 : (1950) 51 Cri LJ 1383])” 

3-What are the different types of Writs?

-Broadly, writs are bifurcated into 5 categories i.e. Habeas Corpus, Mandamus, Prohibition, Quo-Warranto and Certiorari.

-Habeas Corpus: Habeas Corpus literally means “to have the body of”. In case of unlawful detention, this writ is used to enforce the fundamental right of individual liberty. When this writ is issued, the person or the authority that has apprehended the other person is required to present them in court. This is an efficacious remedy in cases of illegal detention. In the case of State v. H. Nilofer Nisha, (2020) 14 SCC 161, it is observed in Para 13 that “It is a settled principle of law that a writ of habeas corpus is available as a remedy in all cases where a person is deprived of his/her personal liberty. It is processual writ to secure liberty of the citizen from unlawful or unjustified detention whether a person is detained by the State or is in private detention.”

-Mandamus: Mandamus means “we command”. A writ of mandamus is a command by the Supreme Court or any high court to any subordinate court, tribunal, board, or other public entity to carry out their statutory duties. It was observed in Union of India v. S.B. Vohra, (2004) 2 SCC 150 that “A writ of mandamus is issued in favour of a person who establishes a legal right in himself. A writ of mandamus is issued against a person who has a legal duty to perform but has failed and/or neglected to do so. Such a legal duty emanates from either in discharge of a public duty or by operation of law. The writ of mandamus is of a most extensive remedial nature. The object of mandamus is to prevent disorder from a failure of justice and is required to be granted in all cases where law has established no specific remedy and whether justice despite demanded has not been granted.”

-Prohibition: This writ means “to forbid” and is used in case a lower courts exceeds its statutory powers granted to it. A Superior Court may issue this Writ to an inferior court or tribunal to prevent them from pursuing/deciding a case because the said case does not come under the purview of their jurisdiction.

-Quo-Warranto: When a private person accepts an office on which he has no right, the courts may issue him with a Writ of Quo Warranto. Quo Warranto, which literally translates to "by what authority," is a legal safeguard against unauthorized appropriation of a public office.

-Certiorari: One of the best and most efficient remedies derived from common law is the writ of certiorari.  It is an order given to a lower court or any authority acting in a judicial or quasi-judicial capacity by the Supreme Court or any High Court. This may be issued if the superior court is of the opinion that the inferior court has exercised its jurisdiction excessively or if the higher court desires to decide the issue in the case itself. This Writ may also be issued where the subordinate court's procedure was fundamentally flawed or when the natural justice standards were broken.

4-What is the Difference between Prohibition and Certiorari?

-The primary distinction between the two writs is that the writ of prohibition is issued when a subordinate court takes on a matter outside of its jurisdiction, in which case the court is required to cease its proceedings, i.e., when a case is still pending. In contrast, the writ of certiorari is issued when a subordinate court renders a judgment/order outside of its jurisdiction, i.e., when a case has already been decided.

5- When can writs be issued?

-The Supreme Court or the High Court can issue writs under Article 32 and 226 respectively when it is of the opinion that a fundamental right guaranteed under Part III of the Constitution is violated. Also, the High Courts can also issue writs in case any other right is violated which is not mentioned in Part III.

6- Can a writ be filed against an individual or it is only maintainable against public institutions/organizations?

-In the case of Anand Kumar Gupta (Dr.) v. Rajghat Education Centre, 2002 SCC OnLine All 1730, it has been observed that, ordinarily, writs are only issued against public institutions except the writ of Habeas Corpus. Writ of habeas corpus can be issued against a private individual as well.

7- Is there any limitation period for filing a writ petition?

-There is no limitation for filing a Writ Petition, according to Article 226 of the Indian Constitution. The writ petition should, however, be filed within a reasonable amount of time. The phrase "reasonable time" has been defined in Veerayeeammal v. Seeniammal, 2002 (1) SCC 134, even though it is not explicitly stated in the provisions created under Article 229 of the Indian Constitution.

-“The word “reasonable” has in law prima facie meaning of reasonable in regard to those circumstances of which the person concerned is called upon to act reasonably knows or ought to know as to what was reasonable. It may be unreasonable to give an exact definition of the word “reasonable”. The reason varies in its conclusion according to idiosyncrasy of the individual and the time and circumstances in which he thinks. The dictionary meaning of the “reasonable time” is to be so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires should be done in a particular case. In other words it means, as soon as circumstances permit”

8- Who can file a Writ Petition in India?

-An individual/organization may file a writ petition if they believe their rights have been infringed as a result of the action or inaction of a public body or a body performing state tasks. Writ petitions may be filed not only by the aggrieved party but also by law-abiding citizens. In order to prevent the goals of justice from being overlooked or disregarded because of technicalities, the scope of who has the authority to file a writ petition has been expanded.

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