Writs

Introduction
Under the Indian legal system, jurisdiction to issue prerogative writs is given to the
Supreme Court, and to the High Courts of Judicature of all Indian states. Parts of the
law relating to writs are set forth in the Constitution of India. The Supreme Court, the
highest in the country, may issue writs under Article 32 of the Constitution for
enforcement of Fundamental Rights and under Articles 139 for enforcement of rights
other than Fundamental Rights, while High Courts, the superior courts of the States,
may issue writs under Articles 226. Writ is eminently designed by the makers of the
Constitution, and in the same way it is developed very widely and efficiently by the
courts in India. The Constitution broadly provides for five kinds of prerogative
writs, namely, Habeas Corpus, Certiorari, Mandamus, Quo Warranto and Prohibition.

Definition of WRIT
Acc to Whartons Law Dictionary writ is defined as a judicial by which anyone is
summoned as an offender; a legal instrument to enforce obedience to orders and
sentence of the courts.
In common law, a writ is a formal written order issued by a body with administrative
or judicial jurisdiction.
The general meaning of writ is that a formal order in writing issued under seal, in the
name of sovereign, government, court or other authority commanding an officer or
other person to whom it is issued, to do or to refrain from doing some act specified
therein.

Writs under Indian Constitution

The constitution of India (COI) provides writ jurisdiction to High Courts and Supreme
Court of India. The peculiarities of these writs are that no other court except as
mentioned above can issue these writs. Any person can either approach to High Court
or to Supreme Court for issuance of any or all the writs (court order) as per facts and
circumstances. Basically the purpose of these writs are to safe guard the fundamental
rights of public but even for other rights these writs can be issued. Where a
fundamental right has been violated then a person can directly approach to Supreme
Court under article 32 of COI. Under article 32 & 226 of the (COI) the power to issue
writs of following nature has been conferred upon both courts.
The Indian Constitution empowers the Supreme Court to issue writs for enforcement
of any of the fundamental rights conferred by Part III of Indian Constitution under
Article 32. Thus the power to issue writs is primarily a provision made to make
available the Right to Constitutional Remedies to every citizen. The Right to
Constitutional Remedies, as we know, is a guarantor of all other fundamental rights
available to the people of India.
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 under article 226 of Indian constitution and for any other purpose.
Article 32 in The Constitution Of India 1949:32. 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 exercisable 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 32(1) guarantees the right to move the Supreme Court, by
appropriate proceedings, for enforcement of Fundamental Rights
enumerated in the constitution.
Article 32(2) empower the Supreme Court to issue appropriate orders or
directions, or writs including writs in nature of Habeas Corpus, Certiorari,
Mandamus, Quo Warranto and Prohibition which ever may be appropriate,
for the enforcement of petitioner fundamental rights.
Article 32(3) empowers the parliament by law to empower any other court
to exercise within the limits of its territorial jurisdiction all or any of the
powers exercisable by the Supreme Court under art 32(2).
Article 32(4),the right guaranteed by art.32 shall not be suspended except
as otherwise provided by the constitution.
Article 226 in The Constitution Of India 1949:226. 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 favour 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.
It can be exercised not only for the enforcement of fundamental right but
for any other purpose.
Jurisdiction is wide and extends to fundamental rights and other
constitutional rights.
Types of Writs
There are 5 types of writs
1. Habeas Corpus"Habeas Corpus" is a Latin term which literally means "you may have the body."
The writ is issued to produce a person who has been detained, whether in prison or
in private custody, before a court and to release him if such detention is found
illegal.
By Habeas Corpus writ the Supreme Court or High Courts can cause any person
who has been detained or imprisoned (this means these violation of fundamental
right to liberty) to be physically brought before the court. The court then examines
the reason of his detention and if there is no legal justification of his detention, he
can be set free.
The Latin phrase habeas corpus means have the body. However recent
development in law indicates that in writ of habeas corpus the production of the
body of the person alleged the unlawfully detained is not essential. In Kanu
Sanyal v. D.M. AIR 1973 SC 2624, Bhagwati J. held that the production of the
body of the person alleged to be wrongfully detained in ancillary to the main
purpose of the writ in securing the liberty of the subject illegally detained. The
most characteristic element of the writ is its peremptoriness, that is, a speedy and
effective remedy for having the legality of detention of the person enquired and
determined by the court.
A general rule of filling the petition is that a person whose right has been infringed
must file a petition. But Habeas Corpus is an exception to that. This is because, a

person detained or imprisoned may be severely handicapped. So anybody behalf

of the detainee can file a petition.
Writ of Habeas Corpus is issuedThe traditional function of the writ of habeas corpus has been to get the release of
a person wrongfully detained or arrested. However, in Sunil Batra v. Delhi
administration, AIR 1980 SC 1579, Krishna Iyer, J. opened ne vistas for the
issuance of the writ of Habeas Corpus. In this case a convict had a written a letter
to one of the judges of the Supreme Court alleging the inhumane torture to a
fellow convict. Krishna Iyer, J. treated this letter as the petition of habeas corpus
and laid down the grounds of issuing writ of Habeas Corpus.

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

2. MandamusMandamus is the 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.
Simply, it is a writ issued to a public official to do a thing which is a part of his
official duty, but which he has failed to do, so far. This writ cannot be claimed as
matter of right. It is the discretionary power of the court to issue such writs. The
Mandamus is also called as wakening call. It awakes the sleeping authority to
perform their duty. It demands an activity and sets the authority in action.
A person can file a writ petition against anybody who seeks a legal duty from that
person. Legal duty means some duty which is by a law viz. Constitution , act,
subordinate, legislation etc.
Mandamus may be a command to do an administrative action or not to take a
particular action, and it is supplemented by legal rights. In the American legal
system it must be a judicially enforceable and legally protected right before one
suffering a grievance can ask for a mandamus. A person can be said to be
aggrieved only when he is denied a legal right by someone who has a legal duty to
do something and abstains from doing it.
The applicant pleading for the writ of mandamus to be enforced should be able to
show that he or she has a legal right to compel the respondent to do or refrain
from doing the specific act. The duty sought to be enforced must have two
qualities. It must be a duty of public nature and the duty must be imperative and
should not be discretionary. Furthermore, mandamus will typically not be granted
if adequate relief can be obtained by some other means, such as appeal.

PURPOSE
The purpose of mandamus is to remedy defects of justice. It lies in the cases
where there is a specific right but no specific legal remedy for enforcing that right.
Generally, it is not available in anticipation of any injury except when the
petitioner is likely to be affected by an official act in contravention of a statutory
duty or where an illegal or unconstitutional order is made. The grant of mandamus
is therefore an equitable remedy; a matter for the discretion of the court, the
exercise of which is governed by well-settled principles.
Mandamus, being a discretionary remedy, the application for that must be made in
good faith and not for indirect purposes. Acquiescence cannot, however, bar the
issue of mandamus. The petitioner must, of course, satisfy the Court that he has
the legal right to the performance of the legal duty as distinct from mere discretion
of authority. A mandamus is normally issued when an officer or an authority by
compulsion of statute is required to perform a duty and that duty, despite demand
in writing, has not been performed. In no other case will a writ of mandamus issue
unless it be to quash an illegal order.
TYPES
There are three kinds of mandamus:
(1) Alternative Mandamus: A mandamus issued upon the first application for
relief, commanding the defendant either to perform the act demanded or to
appear before the court at a specified time to show cause for not performing it.
(2) Peremptory Mandamus: An absolute and unqualified command to the
defendant to do the act in question. It is issued when the defendant defaults on,
or fails to show sufficient cause in answer to, an alternative mandamus.
(3) Continuing Mandamus: A mandamus issued to a lower authority in general
public interest asking the officer or the authority to perform its tasks
expeditiously for an unstipulated period of time for preventing miscarriage of
justice.
In India, the sine qua non for mandamus is the existence of a statutory public duty
incumbent upon the person or body against whom the mandamus is sought. There
must equally co-exist a corresponding right in the petitioner entitling him to claim
the enforcement of such public duty. These two preconditions form the foundation
for the issue of mandamus. The primary scope and function of mandamus is to
"command" and "execute" rather than to "enquire" and "adjudicate". It cannot be
issued to change the decision of a body so as to suit the petitioner. Obligations
which are not of statutory nature cannot be enforced by mandamus. The writ
petition is not maintainable when a remedy provided for under the Code of Civil
Procedure is available. For example, the High Court cannot entertain writ petitions
for mandamus to the government who fails to deposit and pay in the requisite time
an enhanced compensation account as ordered by a lower Court. The petitioners in
this case would be directed to approach the executing Court for appropriate relief.

Only the Supreme Court and High Courts are empowered to exercise Writ
Jurisdiction, under Art. 32 and 226 of Constitution. No other courts are
empowered to issue writ.
3. CertiorariLiterally, 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.
There are several conditions necessary for the issue of writ of certiorari.
1. There should be court, tribunal or an officer having legal authority to determine
the question with a duty to act judicially.
2. Such a court, tribunal or officer must have passed 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.