Writs and Their Types

Writ:

• Anything that is issued under authority is a writ. Orders, warrants, directions etc. issued under authority are examples of writs.
• Any person whose fundamental rights are violated can move the High Court (under article 226 of Indian constitution) or the Supreme Court (under article 32) and the court can issue direction or orders or writs. Thus the power to issue writs is primarily a provision made to make available the Right to Constitutional Remedies to every citizen.
• In addition to the above, the Constitution also provides for the Parliament to confer on the Supreme Court power to issue writs, for purposes other than those mentioned above. Similarly, High Courts in India are also empowered to issue writs for the enforcement of any of the rights conferred by Part III and for any other purpose.
• In India, both the Supreme Court and the High Court have been empowered with Writ Jurisdiction. Further, Parliament by law can extend power to issue writs to any other courts (including local courts) for local limits of the jurisdiction of such courts.

Types of Writs:

• There are five major types of writs viz. habeas corpus, mandamus, prohibition, quo warranto, and certiorari. Each of them has a different meaning and different implications.

Writ of Habeas Corpus:

• Habeas corpus writ is called bulwark of individual liberty against arbitrary detention.  “Habeas Corpus” is a Latin term which literally means “you may have the body.” Or “produce the body”.
• This remedy is available in all cases of unlawful detention and violation of personal liberty. The writ is issued to produce the person physically who has been detained, whether in prison or in private custody, before a court.
• The court then examines the reason for the detention and if there is no legal justification of his detention, he can be set free. Thus the onus of proof is on the detainer, and the detainer must show proof of authority to do the same.
• A general rule of filing the petition is that a person whose right has been infringed must file a petition. But Habeas corpus is an exception and anybody on behalf of the detainee can file a petition. Habeas corpus writ is applicable to preventive detention also. This writ can be issued against both public authorities as well as individuals.

• Such a writ can be issued in the following example cases:

• When the person is detained and not produced before the magistrate within 24 hours
• When the person is arrested without any violation of the law.
• When a person is arrested under a law which is unconstitutional
• When detention is done to harm the person or is malafide.

Case Law: Brown v. Vasquez, 952 F 2d 1164

• James A Brown, a Texas prisoner (was awarded the death penalty), filed a complaint alleging violations of his constitutional rights stemming from two cell extractions. He named as defendants Sergeant Vasquez and Correctional Officer R. Hughes.
• The Court held that he was detained according to the procedure established by law and rejected his argument.

Case Law: Gopalan v.Government of India, AIR 1950 SCR 88

• A. K. Gopalan was a communist leader who was detained in the Madras Jail under Preventive Detention Act, 1950 and he challenged his detention by stating that his civil liberty was being hampered as he had the right to equality of law. He argued that there was a violation of his Fundamental Rights which were Article 19, 21 and 22. He argued that the right to the movement was a fundamental right under article 19
• Article 21 of the Indian Constitution: “No person shall be deprived of life or personal liberty except according to the procedure established by law”. The Supreme Court held that he was detained according to the procedure established by law and rejected his argument. The supreme court at that point of the time believed that each article was separate in the Indian constitution.

Case Law: Prem Shankar Shukla Delhi Administration, AIR 1980 SC 1535

• In this case, the detained prisoner sent a telegram to a judge and was treated as a Habeas Corpus Petition.

Case Law: Sheela Bharse v. State of Maharashtra AIR 1983 SC 378

• In this case, the court expanded the scope of this writ by adjudging that it is not necessary that the detainee should be the petitioner. An interested party who has some connection with the case may also do so.

Case Law:  Kanu Sanyal v. District Magistrate AIR 1973, SC 2684 

• In this case, the court held that it is not necessary to produce before the court the detainee.

Writ of Mandamus:

• Mandamus is a Latin word, which means “We Command”. Mandamus is an order from the Supreme Court or High Court to a lower court or tribunal or public authority to perform a public or statutory duty. This writ of command is issued by the Supreme Court or High court when any government, court, corporation or any public authority has to do a public duty but fails to do so.
• The function of mandamus is to keep the public authorities within the limits of their jurisdiction while exercising public functions. Mandamus can be issued to any kind of authority in respect of any type of function – administrative, legislative, quasi-judicial, judicial.
• Mandamus is called a “wakening call” and it awakes the sleeping authorities to perform their duty. Mandamus thus demands activity and sets the authority in action.
• A petition for writ of mandamus can be filed by any person who seeks a legal duty to be performed by a person or a body. Such a filing person must have a real or special interest in the subject matter and must have the legal right to do so.

• Mandamus cannot be issued against the following:

• a private individual or private body.
• if the duty in question is discretionary and not mandatory.
• against president or governors of the state
• against a working chief justice
• to enforce some kind of private contract.

 Case Law: Bombay Municipality v. Advance Builders, AIR 1972 SC 793

• Bombay Municipality had prepared a town planning scheme which had been also approved by the State Government. However, no action was taken for a long time.
• The court directed the municipality to implement a planning scheme.

Case Law: State of West Bengal v. Nuruddin(1998) 8 SCC 143

• In the case, the Supreme Court held the writ of mandamus is a personal action where the respondent has not done the duty they were prescribed to do by law. The performance of the duty is the right of the applicant.

Case Law: Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. v. V. R. R Udani and Ors. AIR 1989 SC 1607

• The court held that it is not necessary that the duty is imposed by statute, mandamus may apply even in cases where the duty is imposed by common law or custom. The ambit of mandamus is very wide, and it must be available when an injustice has occurred. It should not be bogged down with too many technicalities.

Writ of Certiorari:

• Literally, Certiorari means to be certified. The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court, tribunal or quasi-judicial authority.
• These writs are designed to prevent the excess of power by public authorities and as general remedies for the judicial control of both quasi-judicial and administrative decisions affecting rights. A writ of certiorari is corrective in nature.
• The scope of the writ of certiorari has been given in the case of Hari Vishnu Kamath v. Ahmad Ishaque AIR 1955 SC 233 as follows:

1. When there is an error of jurisdiction.
2. When the court has not given the proper time for both parties to be heard or has violated principles of natural justice.
3. This writ is supervisory in nature, and thus the High court cannot review the findings of the lower courts.
4. If the error is evident.

• There are several conditions necessary for the issue of a writ of certiorari.

1. There should be court, tribunal or an officer having the legal authority to determine the question with a duty to act judicially.
2. Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or officer.
3. The order could also be against the principles of natural justice or the order could contain an error of judgment in appreciating the facts of the case.

• A writ of certiorari can never be issued to call for the record or papers and proceedings of an Act or Ordinance and for quashing such an Act or Ordinance.

Writ of Prohibition:

• The Writ of prohibition means to forbid or to stop and it is popularly known as ‘Stay Order’. This writ is issued when a lower court or a body tries to transgress the limits or powers vested in it.
• The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, or quasi-judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to try. After the issue of this writ, proceedings in the lower court etc. come to a stop.
• A writ of prohibition is normally issued when inferior court or tribunal

1. Proceeds to act without jurisdiction or in excess of jurisdiction
2. Proceeds to act in violation of rules of natural justice or
3. Proceeds to act under a law which is itself ultra vires or unconstitutional or
4. Proceeds to act in contravention of fundamental rights.

• Difference between Prohibition and Certiorari:
• There is a fundamental distinction between writs of prohibition and certiorari. They are issued at different stages of proceedings.

1. The writ of prohibition is available during the pendency of proceedings i.e. when an inferior court takes up a hearing for a matter over which it has no jurisdiction, the person against whom hearing is taken can move the superior court for writ of prohibition on which order would be issued forbidding the inferior court from continuing the proceedings.
2. The writ of certiorari can be resorted to only after the order or decision has been announced i.e. if the court hears the matter and gives the decision, the party would need to move to superior court to quash the decision/order on the ground of want of jurisdiction.
3. Both the writs are issued against legal bodies.

• Difference between Mandamus and Prohibition:

1. While Mandamus directs activity, Prohibition directs inactivity.
2. While Mandamus can be issued against any public official, public body, corporation, inferior court, tribunal or government; prohibition can be issued only against judicial and quasi-judicial authorities and not against administrative authorities, legislative bodies

Writ of Quo-Warranto:

• The word Quo-Warranto literally means “by what warrants?” or “what is your authority”? It is the writ which is issued directing subordinate authorities to show under what authority they are holding the office. If a person has usurped a public office, the Court may direct him not to carry out any activities in the office or may announce the office to be vacant. Thus High Court may issue a writ of quo-warranto if a person holds an office beyond his retirement age.
• The writ cannot be issued to a person working in a private field. This writ is issued to a person in an office, the legality of which is being questioned.
• In the case of Anand Bihari v. Ram Sahay AIR 1952 MB 31, the court held that the office in question must necessarily be one which is public.
• In G. Venkateshwara Rao v. Government of Andhra Pradesh AIR 1966, SC 828, the court held that a private person may file an application for a writ of Quo Warranto. It is not required that this person is personally affected or interested in the case.
• Conditions for issue of Quo-Warranto

1. The office must be public and it must be created by a statue or by the constitution itself.
2. The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.
3. There must have been a contravention of the constitution or a statute or statutory instrument, in appointing such person to that office.

Summary of Writs:

Type of Writ	Meaning of the word	Purpose of issue
Habeas Corpus	You may have the body	To release a person who has been detained unlawfully whether in prison or in private custody.
Mandamus	We Command	To secure the performance of public duties by the lower court, tribunal or public authority.
Certiorari	To be certified	To quash the order already passed by an inferior court, tribunal or quasi-judicial authority.
Prohibition	To stop	To prohibit an inferior court from continuing the proceedings in a particular case where it has no jurisdiction to try.
Quo Warranto	What is your authority?	To restrain a person from holding a public office which he is not entitled

How to File a Writ in the Supreme Court?

• For the purpose of filing a writ petition in the Supreme Court under Article 32, a format for the writ petition is provided by the Supreme Court which must be followed. The following documents need to be attached along with the writ petition:

1. An affidavit by the petitioner.
2. 1+5 copies of the writ petition.
3. It will also include a prescribed cover page, an index, annexures as may be required as well as a memo of appearance for which fees are to be paid.

• For the format of writ petition Click here

• The same procedure can be used to file a case in the High Court, the format for writ petition will be available on the concerned High Court’s website. For example, The format is available on the official website of the Mumbai High Court.