Writ Jurisdiction - Short Note

Photo by Michael D Beckwith on Unsplash

The Supreme Court under Article 32 and the High courts under Article 226 of the Constitution can issue the writs of 

1. habeas corpus, 
2. mandamus, 
3. prohibition, 
4. certiorari and 
5. quo-warranto.

Habeas Corpus

The Latin meaning of the word ‘Habeas Corpus’ is ‘To have the body of.’ This writ is used to enforce the fundamental right of individual liberty against unlawful detention. Through Habeas Corpus, Supreme Court/ High Court orders one person who has arrested other person to bring the body of the latter before the court.

Facts -

• Supreme Court or High Court can issue this writ against both private and public authorities.
• Habeas Corpus can not be issued in the following cases:

• When detention is lawful
• When the proceeding is for contempt of a legislature or a court
• Detention is by a competent court
• Detention is outside the jurisdiction of the court

Mandamus

The literal meaning of this writ is ‘We command.’ This writ is used by the court to order the public official who has failed to perform his duty or refused to do his duty, to resume his work. Besides public official, Mandamus can be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose.

Facts -

• Unlike Habeas Corpus, Mandamus cannot be issued against a private individual
• Mandamus can not be issued in the following cases:

• To enforce departmental instruction that does not possess statutory force
• To order someone to work when the kind of work is discretionary and not mandatory
• To enforce a contractual obligation
• Mandamus can’t be issued against Indian President or State Governors
• Against the chief justice of a high court acting in a judicial capacity

Prohibition

The literal meaning of ‘Prohibition’ is ‘To forbid.’ A court which is higher in position issues Prohibition writ against a court which is lower in position to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. It directs inactivity.

Facts -

• Writ of Prohibition can only be issued against judicial and quasi-judicial authorities.
• It can’t be issued against administrative authorities, legislative bodies, and private individuals or bodies.

Certiorari

The literal meaning of the writ of ‘Certiorari’ is ‘To be certified’ or ‘To be informed.’ This writ is against issued by a court higher in authority to a lower court or tribunal ordering them either to transfer a case pending with them to itself or to squash their order in a case. It is issued on the grounds of an excess of jurisdiction or lack of jurisdiction or error of law. It not only prevents but also cures for the mistakes in the judiciary.

Facts -

• Pre-1991: The writ of Certiorari used to be issued only against judicial and quasi-judicial authorities and not against administrative authorities
• Post-1991: Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting the rights of individuals
• It cannot be issued against legislative bodies and private individuals or bodies.

Quo-Warranto

The literal meaning of the writ of ‘Quo-Warranto’ is ‘By what authority or warrant.’ Supreme Court or High Court issue this writ to prevent illegal usurpation of a public office by a person. Through this writ, the court enquires into the legality of a claim of a person to a public office

Facts -

• Quo-Warranto can be issued only when the substantive public office of a permanent character created by a statute or by the Constitution is involved
• It can’t be issued against private or ministerial office

Note: This writ gives the right to seek redressal to any individual other than the aggrieved person.

General Facts about Writs

• Article 32 also empowers Parliament to authorize any other court to issue these writs
• Before 1950, only the High Courts of Calcutta, Bombay and Madras had the power to issue the writs
• Article 226 empowers all the high courts of India to issue the writs

Writs of India are borrowed from English law where they are known as ‘Prerogative writs’

The Parliament under Article 32 can also empower any other court to issue these writs. However, no such provision has been made so far.

Difference in writs of Supreme Court and High court. The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a High court can issue writs for the enforcement of Fundamental Rights and also for an ordinary legal right.

The Supreme Court can issue writs throughout the territory of India whereas a High court can issue writs within its territorial jurisdiction.

The 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.  The Supreme Court is thus constituted as a defender and guarantor of the fundamental rights.

For Regular Updates of "Truth of Society" join us on WhatsApp  - Click Here