This Article is written by Soumya (pursuing my LLB from BVIMR, BHARTI VIDYAPEETH UNIVERSITY, New Delhi)
The Courts in India are considered as temples of Justice. The Constitution has given various powers to the High Courts and the Supreme Court to deliver justice to it’s citizens. One of the most powerful tool of Justice given to these Courts are under Article 32 and 226, by the virtue of these provisions the citizens can directly approach the High Court and Supreme Court if there fundamental rights are violated.
Writ is a command or order which Court which gives a command to an authority or person to abstain from doing an activity which they are doing.
Meaning of Writ
Writ is a written order given by the Supreme Court or the High Court under Article 32 and 226 of the Indian Constitution if the fundamental rights of any citizen of India are violated. The citizens can appeal for the Constitutional remedies if there fundamental rights violated under the above mentioned articles and seek for Constitutional remedies for the infringement of their rights. The High Court has same power to issue writs under the Article 226 as the Supreme Court has under Article 32. The citizens can approach the Supreme Court only when there legal rights are trespassed. But Article 226 has wide discretion as it allows the High Court to issue Writs in various other matters irrespective of violation of fundamental rights. For instance, in Smt. Imtiaz Bano vs Masood Ahmad Jafri And Ors., the mother filed a writ petition for habeas corpus under Article 226 for the custody of her two children. The Court issued Writ in her favorand also allowed the petition. Thus, it is evident that the High Courts have wider discretion to issue Writs in comparison to the Supreme Court.
A citizen can choose to approach to the Supreme Court or the High Court for the issue of the Writ. Once, the suit is filed he cannot file a fresh suit in the another Court because in India principle of res judicata is followed. In case, the suit is filed in the High Court and decision doesn’t comes in the favor of the petitioner s/he can file an appeal. But if the High Court dismisses the suit initially then s/he cannot go into the appeal.
Types of Writs
The Indian Constitution has given five types of the Writs which can be issued by the Courts.
Habeas Corpus means ‘to have the body’. This remedy is issued by the where a person has been illegally detained. It is considered to be most effective remedy. The Court commands the authority or person who has illegally detained another person to produce the detained person in the Court. The Court requires the person who detained the other individual to produce valid grounds of his arrest. If the party fails to provide the valid grounds of the arrest then, the Court releases the detained with immediate effect. The Writ is important because it safeguards the personal liberty of a person guaranteed under the Article 21 of the Constitution. If this remedy was not in place then there are high chances that the person who has been illegally detained will not be able to exercise his right to personal liberty. The Writ protects the person only in the cases where there are clear evidences of illegally detection. If the detention is lawful within the ambits of the law. The Writ will not be issued by the Court. If the Court gives an order for the detaining any person, this will not amount to illegal detention. Thus, the detention orders of the Court can not be challenged in any Court for the issue of the Writ. The Writ can not only be invoked by the person who has been detained but also by others on his behalf.
The Writ is issued when a person is in the custody of the other. In most cases, family and friends are allowed to file Writ Petition but the Court has also allowed petitioner by strangers if it is for public interest. In Sunil Batra V Delhi Administration, the Supreme Court allowed the petition by the co-convict, a stranger, accepted the letter, on the grounds of the inhumane treatment of prisoners. Thus, the Court issued Habeas Corpus. It can be inferred that the Court accepts both formal and informal mode of Writ Petition. If the petition is dismissed by the judge of one Court the application cannot be produced before the judges of the same Court. If during an arrest all the formalities are not fulfilled then this Writ can be issued.
Mandamus is issued by the superior court to an inferior court, to do an act or abstain from doing certain act. It can also be issued against any Tribunal, Board or any other administrative body. Thus, it makes an important Writ. The Supreme Court is an apex Court, and it can issue Mandamus to the inferior Courts and against High Courts also. But under Article 226 of the Indian Constitution, High Courts can only issue Writ of Mandamus to the inferior Courts. The Writ is useful in enforcing duties on the persons holding a post but not discharging their duties properly. This Writ can’t be issued against any private person but only against the person who holds a public office, a public officer.
It is important that when a petition is filed, the rights of the petitioner are infringed. If there is no infringement of her or his right the Writ will not be issued. The petitioner has demanded an authority to perform the duty which they are legally bound to do. If there is non-performance of such duty the Court can issue Writ. It is the duty of the petitioner to show his rights have been infringed. The Writ is also enforceable on the administrative authorities. Authorities have mandatory duties and discretionary duties. In case of mandatory duties, the Writ can be issued. But in the latter case, the Writ can not be issued. It is expected that the authorities make decisions in good faith while deciding their discretionary duties. In Vijaya Mehta v. State of Rajasthan, the State was pressurized to form a commission to look into the matter of flood and climate change in State. The Court held that it is the discretionary duty of State. The Commission can only be form when Legislature passes a resolution.
This Writ is different in nature in comparison to other Writs because it looks at correcting error on records which are quite apparent. It is issued by the superior court to the inferior court when there is a matter which superior court wants to decide itself or excessive jurisdiction is exercised by the inferior court. If there is violation of principles of natural justice or procedure is not followed properly by the inferior court, the Writ can be issued.
The Writ can be issued when there is a legal authority and is deciding questions of law, affecting rights of people. The person has not acted judiciously and in excess of it’s jurisdiction. It is necessary that the petition is brought by the aggrieved party. This Writ is limited in scope as it applies to judicial and quasi-judicial bodies.
The Writ is issued by the courts against the private person who takes up the office which s/he has no right. Quo Warranto means by ‘what authority’ and helpful in deterring people to assume public offices. The has discretionary power to issue this Writ.
The Writ can be issued only when private person assumes public office, created by the Constitution of India and the duties which arises from such office. The office must be of permanent nature, private person should be in possession of it and also a person who is disqualified from holding the office still holds it. In Niranjan Kumar Goenka v. The University of Bihar, Muzzfarpur, Court held Writ can only be issued against a private person holding public office.
This is the last and an extraordinary Writ, where superior court prohibits inferior court from deciding a case as it is off view that they don’t have the jurisdiction.If a case is decided by the Court which does not have the jurisdiction. The judgement would be invalid as it does not have sanction of law.
When in a judgement a part is outside the jurisdiction of inferior court, the Writ will only be issued on that part of the judgement. The petitioner has right to appeal but it does not stop superior court to issue Writ if the inferior court does not have jurisdiction. This is a primitive remedy which can be issued when the case is under proceeding not when order has been passed. It can be issued only against judicial and quasi-judicial authorities and not against administrative bodies.
There are five types of Writs given in the Indian Constitution which can be used to enforce the rights of the citizens and make authorities to do their rightful duties, provided under the Constitution. Thus, the Writs have helped in improving the scope of judicial review of courts and also enforcing rights of the citizens.