Generally, when we talk about writs, we consider it as a formal written order, but in legal sense writs have vast meaning. It is not just limited to being issued by the sovereign power but is also an important element for maintaining justice and social order in the society. “The Courts have constantly tried to protect the liberties of the people and assume powers under the Constitution for judicial review of administrative actions. The discretionary powers have to be curbed, if they are misused or abused. The socio-politic Institution need not cry, if the courts do justice and perform the substantial role. That is the essence of justice”[1]
We live in a dynamic world where we have to face different problems demanding different solutions tantamount to equality and justice. To tackle these situations we have rationale of common law in India, Writs act as a support system in this legal system. They act as an equipment for the ordinary citizens to protect their fundamental rights, if violated, and approach the judicial authorities (Supreme court and High court) to get remedy. Just as a matter of fact, one should know that Article 32 of our Indian Constitution provides for constitutional remedies and according to Article and Article 226, Supreme court and High court have rights to look into the matter. Rightly said that every coin has two sides similarly writs are not just limited to be a positive equipment to fight injustice but sometimes become negative tool as well when they save criminals from being held guilty. There are various precedents wherein according to morality the person is guilty but the law does not support so.
Read – Fundamental Rights – Meaning And Concept
“The origin of writs can be drawn from the English Judicial system and were created with the development of English folk courts-moots to the common law courts. The law of writs has its origin from the orders passed by the King’s Bench in England. Writs were issued on a petition presented to the king in council and were considered as a royal order. Writs were a written order issued in the name of the king which acted as groundwork for the subsequent proceedings. However, with different segments writs took various forms and names. The writs were issued by the crown and in the interest of the crown but with the passage of time it became available for ordinary citizens also. However a prescribed fee was charged for it and the filing of these writs were known as Purchase of a writ.”[2]
Apart from what basically writs means, we have five different categories in which we can divide them. They are habeas corpus, mandamus, certiorari, quo-warranto, and prohibition respectively. Each writ has its own objective to serve which when commemorated fulfils the responsibility of social order. Habeas corpus means “you may have the body”. “This writ is especially designed for the citizens who are illegally detained by the authority or are not presented before the court within limited time period”[3]. Sometimes this writ is also used to fight for child custody cases when either of the parent feels that the child will not get enough care and sympathy with other person. This writ basically protects an innocent person from the baneful and baroque procedures of our system. If someone asks view point of an innocent person who has been through all this tidy procedures, he will definitely speak ill about our Indian legal system. Being a justice provider the system has to keep in mind every uncertain situation and what a rational person will do in the same. This thought has brought the importance of writs.
When we talk about writ of Mandamus, it basically ensures that the “public servant fulfils the responsibility reposed onto them. The judicial authority ensures that the duty is been fulfilled by the public authority as entrusted to them”[4]. A normal citizen if finds that the duty is not being carried out in the order, he has the right to file the writ with any of the judicial body so that the respective authority can issue order to get the duty done or bear the consequences for the same. What we can basically say is that writ of mandamus is a order which a superior body issues in order to cinch that the legal responsibility is carried in the way it maintains social order and justice and also solves the grievance of the problem. If we think of the usage of this writ in extent to what benefit an ordinary person can avail, we can always say that since our system is greased with corruption, it’s we the people (sovereign) who need to fight against it and this writ acts as a tool for the same.
Certiorari and Prohibition are kind of similar writs with similar objectives but a thin line difference between them. We know that our legal system is hierarchy of judicial body with Supreme court being the apex one. All these autonomous bodies have authority to take some decisions but not all the decisions. If an ordinary citizen suffers from the punishment that is provided by a non-authoritative judicial body, then he has the right to file the writ of prohibition in case the decision is not yet given and the writ of certiorari to quash the decision. It protects the citizen from being a slave to dominant authority which sometimes have no right to interfere (i.e., have no jurisdiction) in certain matters. We have different bodies having differentiated functions and each body is expected to do the respective job and not go beyond the authority.
Lastly the available equipment with us in Quo-Warranto. This Latin phrase simply means by what authority. The fundamental basis of the proceeding of Quo Warranto is that the public has an interest to see that an unlawful claimant does not usurp a public office. We can use this writ if we have general and reasonable doubts that the person holding a public office is not eligible to hold so. In order to make sure that the right person who can do his duty properly is holding the office, we as citizens should be well aware of this writ so that we can be atleast a part of the justice system.
Read – Judiciary – Harbinger Of Human Rights
It is clear that vast powers are vested with the Judiciary to control an administrative action when it infringes fundamental rights of the citizens or when it goes beyond the spirit of Grundnorm of our country i.e., Constitution of India. It ensures the Rule of Law and proper check and balances between the three organs of our democratic system. The philosophy of writs is well synchronized in our Constitutional provisions to ensure that rights of citizens are not suppressed by an arbitrary administrative or Judicial action.
[1], [2] Legal Service India. 2018. Role of Writs In The Administrative Law. [ONLINE] Available at: http://www.legalserviceindia.com/article/l402-Role-Of-Writs-In-The-Administrative-Law.html [Accessed 14 November 2018].
[3],[4] Constitution Of India (By JN Pandey)
This Article Is Authored By Abhishek Kothari, Student of B.B.A. LL.B at Auro University (School Of Law), Surat
