WRITS: THE PROTECTORS OF FUNDAMENTAL RIGHTS

Updated: Jun 29


What is a Writ?

A Writ is a formal written order issued by a government entity, i.e. mostly the Court or judicial officer in the name of the sovereign, government, court or other competent authority to whom it is directed to perform or to refrain a person from doing a specific act. Article 32 and 226 of the Indian Constitution empowers Supreme Court to provide for Right to Constitutional Remedies i.e, to issue orders and writs to safeguard the fundamental rights guaranteed under part III of the Constitution of India.

High Court also has the right to issue writs in order to safeguard the fundamental rights under part III of the Constitution of India.


Significance of Writs

Writs are vital because it helps to defend and protect the fundamental rights; without them, Part III would be meaningless, because they assist in their existence.

They are instruments to guard the citizens against any wrong committed by the state as under article 12.

Using them, judiciary has interpreted many other rights as inseparable adjuncts to other fundamental rights. For instance, right to dignified life in Maneka Gandhi Case 1978.


Origin and Development of Writ in India

The writs originated in the England and was later in adopted by India and now it’s one of the most used instruments in India. Writs were first introduced in India in 1774 by a royal charter of Britain. During this period, The East India Company started to be subjected to parliamentary control. The Charter created a Supreme Court at Calcutta and conferred thereon the proper to issue all writs as were issued in England.

Subsequently, Supreme Courts of Judicature were added in Madras in 1800 and Bombay in 1823 with similar provisions.

Later, the three supreme courts were replaced by High courts in the same places by the Indian High Courts Act of 1861, but the power to issue writs was confined only to those three high courts and that too within their jurisdictions only for writs of prohibition and certiorari. The other high courts in India created under the Act didn't have any power to issue writs. Slowly, the authority to issue writs of Habeas Corpus and Mandamus was curtailed and taken away .This remained the scenario until 1950.

In 1950, the Constitution of India came into effect. The authority to issue writs of a certain nature was provided in the constitution to the Supreme Court under article 32 for the protection of Fundamental rights and to the High Courts under article 226 for the protection of fundamental rights as well as any other rights of any person.


THE TWO ARTICLES ABOUT WRIT IN THE INDIAN CONSTITUTION

Article 32 of the Indian Constitution

Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercizable by the Supreme Court under clause ( 2 ).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.


Article 226 of the Indian Constitution

Power of High Courts to issue certain writs

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.

(3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without(a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favor such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated.

(4) The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Article 32.


Types of Writs

Writ of Habeas Corpus:

Habeas Corpus is used to question the legality of any person's detention. This remedy is available only when other ordinary legal remedies have been exhausted or are found inadequate.

Habeas Corpus has been said to be the pillar stone of personal liberty and the 'first security of civil liberty'. The writ is remedial in nature and its objective is to secure the release of the illegally detained person.

Habeas Corpus may be applied for by any person who is not a 'stranger', i.e., any person who has any relation to the detainee, be it lawyer, relative, friend, family member, activist group, or even the detainee himself may apply for a writ of Habeas Corpus.

The writ of Habeas Corpus was famously used in India during the Emergency declared in 1975 to question the detainment of persons under the Maintenance of Internal Security Act, 1971. An example is the case Additional District Magistrate of Jabalpur v. Shiv Kant Shukla


Writ of Prohibition:

The writ of Prohibition is issued by a superior court to a court below its ordering, so that they don’t overstep their jurisdiction. One can apply for a writ of prohibition if one feels that the court which has taken on the case has no jurisdiction over it. On receiving the writ of prohibition, the court will not try the case. In this way, the case will be tried by the body which has jurisdiction to try the case. It is a preventive step.

The writ of prohibition has a very ancient history and was present in the 11th century in England. In Hari Vishnu Kamath v. Ahmad Ishaaqe the Supreme Court explained the writ of Prohibition.


Writ of Quo Warranto:

The Writ of Quo Warranto is used to challenge the illegal occupation of a public office by any person. If the accused is unable to show that he or she has legitimately occupied the office, the person will be ordered to relinquish office.

Historically, the writ of Quo Warranto was used to check against the illegal use and occupation of any rights or authority conferred by the Crown. The accused would be asked to produce the order of the king certifying his appointment. If unable to do so, he would be dispossessed of the office or rights.

Quo Warranto may only be used when public offices are concerned. Any position in a private, i.e., non-governmental organization cannot be challenged by Quo Warranto.

The Supreme Court explained the Writ of Quo Warranto in University of Mysore v. Govinda Rao

Any person may file for writ of Quo Warranto if it is in the public interest . If however the writ is not being filed in the public interest, the person filing the writ must be personally aggrieved by the illegal occupation of the public office.


Writ of Certiorari:

The writ of Certiorari is used to verify the judgment of a particular case given by a lower court by a higher court. Certiorari acts as a supervisory role and not as an appellate role. The Higher court orders the lower court to give a record of the case including evidence etc. to the higher court and if it then finds any lapses it has power to quash the judgment.


Writ of Mandamus:

The writ of mandamus is a writ that is issued by a court compelling any person or governmental department to follow the law and perform any statutory duty required.

Mandamus cannot apply to any private organization unless it is concerned with the performance of any statutory authority.

The writ of mandamus has been used extensively for the protection or enforcement of rights or duties enjoined by statute.

However, mandamus cannot be used to direct the law-making process, it can only be used to enforce laws and check their constitutional validity.




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