The Apex court and High courts have the power to issue writs under article 32 and article 226 respectively. The provision to issue writs is formed in order to make available the right to constitutional remedies to every citizen.
There are five types of writs – Habeas Corpus, Mandamus, Prohibition, Certiorari, Qua Warranto which are described below–
1. Habeas Corpus
The word ‘Habeas Corpus’ literally means – to have a body. By this writ, the court secures the body of a person who has been imprisoned to be brought before itself to obtain the knowledge of the reason why he has been imprisoned and to set him free if there is no lawful justification for the imprisonment. It is in the nature of an order calling upon the person who has detained another to produce the latter before the court, in order to let the court know on what ground he has been confined and to set him free if there is no legal justification for imprisonment. It is a powerful safeguard against arbitrary acts not only of private individuals but also of executives.
Following are the different purposes for which he writ of habeas corpus is available are as follows –
(1) When executives have detained or arrested any person without any authority of law or in contravention of procedure established by law or the imprisonment was invalid or unconstitutional, the High court or Supreme Court may issue a writ of habeas corpus against such authority which has kept the person unlawfully and order the release of such person.
(2) It will also issue where the order of imprisonment is ultra vires the statutes which authorizes detention or imprisonment.
The writ of Habeas Corpus is not issued in the following cases–
- Where the person against whom the writ is issued is not within the jurisdiction of the court.
- To secure the release of a person who has been imprisoned by the court on criminal charges.
Mandamus literally means a command. It commands the person to perform some public or quasi-public legal duty which he has refused to perform. This writ can only be issued when the applicant has a legal right to the performance of legal duty of public nature and the party against whom the writ is issued is bound to perform the duty. Mandamus will lie not only against officers and other persons who are bound to do public duty but also against the government itself. This writ is also available against lower courts or other judicial bodies when they have refused to exercise their jurisdiction and to perform their duty.
This writ is issued for the enforcement of the fundamental rights. Whenever a public officer or a government has done some act which infringes the fundamental rights, the court will issue the writ of mandamus restraining the public officer or government or doing that act against the person whose fundamental right has been violated.
This writ will not be granted against a private individual or body whether incorporated or not except where the state is in collision with such a private party.
The Writ of Prohibition is issued by the Supreme Court or a High court to an inferior court forbidding the latter to continue proceedings therein in excess of its jurisdiction with which it is not legally vested. The Supreme Court can issue the writ only where a fundamental right is affected by reason of the jurisdictional defect in the proceedings. The object of this writ is to compel inferior courts to keep themselves within the limits of their jurisdiction.
The object of this writ is to secure that the jurisdiction of an inferior court or tribunal is properly exercised and that it does not usurp the jurisdiction which it does not possess. It means – to be informed of. It is issued by higher court to a lower court or any other inferior body to transfer a particular matter to the high courts than itself. It is a curative writ. It is never issued to call for the record or papers and proceedings of an act or ordinance and for quashing such act or ordinance.
5. Qua Warranto
It means what is your authority. It is the procedure whereby the court enquires into the legality of the claim which the party asserts to a public office. It is generally issued to control the executive actions in the matter of making appointments to public offices under various provisions. Following are the conditions necessary for the issue of a writ of Qua Warranto are as follows –
- The office must be public or created by any statute or by the constitution.
- There has been a contravention of the constitution or any statute in appointing such person to that office.
This writ is issued against a person who is not entitled to hold an office of public nature and is only a usurper of the office. The challenge can be made on the grounds such as required qualifications for such an office. It is a powerful instrument for safeguarding against the usurpation of public offices.