After a painstaking battle spread across centuries, the Indian soil gained its independence from the tyrannical rule of Britishers in 1947. One of the first tasks India undertook as a sovereign, democratic, republic was to give itself a hefty constitution. The drafting of the constitution was a challenging task and one of the primary focus of its makers was to ensure that an Independent India is one where all its citizens live freely with dignity and equality. The Constituent Assembly, after its three years, presented one of the most comprehensive constitution spanning 395 articles in 22 part and included 8 schedules. Part III of the Indian Constitution is titled Fundamental Rights and is aimed at protecting some of the most sacred rights of the people living in our country. Apart from guaranteeing various rights, Part III also includes the all-important Article 32. According to the drafter of the Indian Constitution, Dr Ambedkar, Article 32 is the “heart and soul of the Indian Constitution”. Dr Ambedkar was right in his opinion because it is only because of Article 32 that all other rights provided under this part are protected and ensure. Article 32 provides remedies to ensure enforcement of the sacred rights provided in Part III of the Constitution.
Apart from empowering people to move to the Supreme Court for enforcement of their rights, this Article also lays down how the Supreme Court can achieve this end. Clause (2) of Article 32 empowers the Supreme Court to issue appropriate writs to protecting any violations. This, coupled with Article 226, which empowers the various HCs with writ-issuing powers, lays down the Writ Jurisdiction in Indian Jurisprudence.
The Indian Constitution broadly provides for five kinds of prerogative writs- Habeas Corpus, Mandamus, Certiorari, Quo Warranto and Prohibition. The different kinds of writs provided by the constitution are used by the courts to deliver an effective remedy to the aggrieved party and each writ has distinct functions and scope. Though writ-issuing power is conferred on both the SC and the HCs, the latter are said to have a broader scope. The primary reason is that Article 32 which empowers the SC to issue writs, grants such power only for the enforcement of fundamental rights. In contrast, HCs under Article 226 can issue writs for enforcement of rights above and beyond fundamental rights, provided such rights do not have any alternate remedy available.
Types of Writs
1. Habeas Corpus
Writ of Habeas Corpus is arguably one of the most valuable writs as it guarantees personal liberty and freedom of people. The writ translates “to have the body” and is invoked to grant protection from unlawful detention. While adjudicating under a writ of Habeas Corpus, the court can order the release of the aggrieved party if the court is satisfied that the detention complained of is devoid of any authority of law. A writ of Habeas Corpus can be issued against any private entity as well as against various state machinery. Though traditionally the writ application can only be made by the actual aggrieved party or by a person on his behalf (relatives or friend), the Indian SC has expanded its jurisdiction and allows any “public-spirited individual” to make such an application. This liberal measure has been adopted by the courts to fulfil its objective of achieving the welfare of the general public. Expanding further on its quest to uphold public welfare, the Indian SC has even allowed compensation to the aggrieved party in a habeas corpus writ petition.
Mandamus is a Latin expression meaning “To Command”. The writ is issued by the SC and HC against any court, tribunal, corporation or public authority under its jurisdiction, directing them to perform certain public or statutory duties which accrue to them. The direction given by the higher court in a writ of Mandamus can be both to do an act or to abstain from doing an act. In a democracy, the will of people is considered to be supreme. Therefore it becomes the responsibility of every organ of the state to perform their duties in satisfaction to the general public. However, unlike the writ of Habeas Corpus, this writ cannot be issued against any private individual; instead, it is issued against the office/position the person is occupying. Though the writ is used to compel a person to act in a certain way, such compulsion can be directed only when the duty complained of is mandatory, not discretionary.
Prohibition in simple terms means to forbid or disallow something. The SC or an HC issues the writ of Prohibition to any of the subordinate courts or tribunals under its jurisdiction to stop them from exceeding their authority, scope or jurisdiction while adjudicating over any matter. This write, unlike Mandamus, is not available to be issued against administrative, legislative or government bodies. The writ is used as a stop-gap measure or a pre-emptive remedy while proceedings are still pending and is ineffective once a decision/judgement has been made. Also, unlike the Writ of Mandamus, which demands activity, the writ of Prohibition is directly opposite and direct inactivity. However, the writ of Prohibition is used as an extraordinary measure as it is seen as a sign of judicial overreach stifling the jurisdiction of lower courts. Hence, it is issued with extreme caution and only in cases where forceful and persuasive reasons are present, necessitating its issuance.
Certiorari means ‘to be certified or informed’. The writ is quite similar to the Writ of Prohibition and is issued by a higher court (SC or HC) to a subordinate (lower) court or a tribunal under its jurisdiction. However, it also differs from the writ of Prohibition in some respects. As we have discussed, the writ of Prohibition is used to stop a judicial body from adjudicating upon a matter, the writ of Certiorari, on the other hand, is used to either transfer a pending matter to the higher court or to quash an order given by a subordinate court. However, the ground of issuing both the writs are similar- adjudication on matters either exceeding the jurisdiction or adjudicating on the matter on which jurisdiction does not exist. In addition to these grounds, the writ of Certiorari can also be used to quash an order on the ground of error in law, for example, if a court makes an error in the procedure adopted or violated principles of natural justice in making a decision. So, it is not only used as a preventive remedy but also a corrective remedy.
5. Quo Warranto
The writ of Quo Warranto asks a question- ‘by what authority? The writ is issued against any person occupying a public office to explain the authority by which the said person is holding such an office. A court hearing upon an application of Quo Warranto can effectively dismiss a person from a public office if it is satisfied that a person is not entitled under law to hold the said office. The writ is only applicable against holders of public office and not to holders of a private office. The writ is crucial because it prevents illegal takeovers of public office by unentitled persons, thereby restricting others from being appointed to the same office. In India, such writ is issued only against offices of substantive importance, such as those created by the constitution or a statute.
Writs are orders issued by various courts constituting the Indian judiciary. Over our 70 years of independence, they have evolved to acquire a driving force in upholding the ideals of our constitution. Time and again, the power to issue writs has been used by the judiciary to ensure that the welfare of the Indian society is given the utmost priority in an independent country. The power to move to the highest court in the land was made available to every ordinary citizen to reassure that the principles enshrined in our constitution are not only in paper but rather have an impact in everyday life of an Indian citizen.
This Article is Authored by Anshum Agarwal, First Year B.A LL.B (Hons) Student at West Bengal National University of Juridical Sciences (NUJS), Kolkata.
Also Read – What is a Writ Petition?