Articles

Writs: Heart and Soul of the Constitution

This article is written by Ishanvi Jain, a student of Galgotias University, Noida

Background of the Writs

In Wharton’s Law Lexicon, writ has been described as: 

A judicial process by which anyone is summoned as an offender; it is a legal instrument to enforce obedience to the orders and sentences of the courts.

In Black Law’s Dictionary a writ has been stated to mean:

A court’s written order in the name of the state or other competent legal authority, commanding the addressee to do or refrain from doing some specified act.

Writs in India

The High Court in Calcutta came to be established originally as the Supreme Court by a Charter, dated 26th March, 1774. Section 13 of that charter popularly known as Regulating Act. The Constitution of India conferred express powers on the Supreme Court and High Court, the earlier history of these writs, whether in England or in India, now, becomes irrelevant.

Finality conferred on a decision by statute cannot take away the constitutional right given under articles 32, 226, or 227 of the constitution.

Text of Articles 32 & 226

Article 32 reads

Remedies for enforcement of rights conferred by this part —

  1. The right to move the Supreme Court with 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 the 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 law.
  3. Without prejudice to the power conferred on the Supreme Court by clauses (1) and (2), parliament may by law empower any court to exercise within the local limits of its jurisdiction all or of 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. 

The expressions ‘including’ and ‘in the nature of’ have significantly expanded the jurisdiction of the Supreme court to an unlimited extent, since on strength of its powers conferred by the article, the Supreme Court can issue not only any writ but also any order or direction, in place of or even in addition of the named writs. In addition to Article 32, the Supreme Court has power to pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it.

Article 226 reads

Power of High Courts to issue certain writs –

  1. Notwithstanding anything in Article 32, every High Court shall have power throughout the territories in relation to which it exercises 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, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the writs.
  2. 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 with that the seat of such government or authority or 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).

Habeas Corpus

The object of the writ habeas corpus is to secure release of a person who is illegally restrained of his liberty. The writ is a command addressed to a person, alleged to have another person unlawfully in his custody, require him to bring the body of such person before the court. The writ is primarily designed to give a person restrained from his liberty, a speedy and effective remedy for having the legality of his detention enquired into and determined, and if the detention is found to be unlawful, having himself discharged and freed from such restraint.

The celebrated writ of habeas corpus has been defined as “a great constitutional privilege” or “the first security of civil liberty”. The writ provides a prompt and effective remedy against illegal detention. By this writ court directs the person or authority, who has detained another person, to bring the body of the prisoner before the court so as to enable the court to decide the validity, jurisdiction or justification for such detention. The principal aim of the writ is to ensure swift judicial review of alleged unlawful detention on liberty or freedom of the prisoner.

Habeas corpus can examine the even the torture of person in legal custody

In India as in America the broader horizons of habeas corpus spread out, beyond the orbit of release from illegal custody, into every trauma and torture on persons in illegal custody because if cruelty is contrary to law, it degrades human dignity or defiles his personhood to a degree that violates articles 21, 14, 19 of the constitution. Therefore a jail convict, alleging subjection to prison injustice can also apply for habeas corpus, and in such a case, detention can be issued for holding a thorough injury into the allegations made for ascertaining the extent of compliance with directions issued as in Sunil Batra v Delhi Administration. In this case the petitioner in question, Sunil Batra was a convict serving a death sentence at the Tihar Central jail. He wrote a letter to a judge of the Supreme Court entailing the poor living conditions and questionable treatment of inmates at the jail. In his letter, he also complained of the brutal assault and torture by Head Warden Maggar Singh of another prisoner, Prem Chand as a ploy to extract money from the victim’s visiting relatives. This letter was converted into a habeas corpus proceeding and by that extension treated as Public Interest Litigation under the ambit of Article 32 of the constitution by the Supreme court. Following this, the court issued a notice to the state and the concerned officials.

It also appointed Dr. YS chital and Shri Mukul Mudgal as amicus curiae and authorized them to visit the prison, meet the prisoner, check the requisite documents and also interview the necessary witness so as to ensure that they were as well informed as possible about the relevant details, surrounding the circumstances and chain of events pertaining the case.

The amicus curiae after paying a visit to the prison and examining the witness reported and also confirmed that the prisoner had sustained serious anal injury. They reported that in the process of torturing the said prisoner a rod has been driven into his anus. The prisoner suffered from continuous bleeding as a result of this, due to the bleeding not ceasing, he was removed to the jail hospital and later transferred to Irvin Hospital. It was also reported that the prisoner’s explanation for the anal rupture was the failure to fulfill the demands of the warden for money, furthermore, attempts were made by departmental officers to cover up the crime by overawing the prisoner and the jail doctor. Officials also offered excuses claiming that the injuries were self inflicted and due to piles.

A writ of habeas corpus may be prayed for in case of actual detention or imprisonment of a person if it’s illegal or unconstitutional. Bur if a person is not actually detained, obviously a writ of habeas corpus would not lie. A question, however, may arise whether in such an eventuality, no remedy at all is available to an aggrieved person against whom an order of detention has been made and such order is still to be executed. In the proceedings of habeas corpus, the court shall have regard to legality or illegality of the detention at the time of filing of return and not with reference to initiation of habeas corpus proceedings. 

Certiorari 

The writ of certiorari issues out of the High Court, and is directed to the judge or officer of an inferior tribunal to bring proceedings in a cause or matter pending before the tribunal into the High court to be dealt with, in order to ensure that the applicant for the order may have the more sure and speedy justice. It may be had in either civil or criminal proceedings. The object of the writ, particularly in civil proceedings, is to give relief from some inconvenience or error supposed, in the particular case. To arise from a matter being disposed of before inferior court less capable than the High Court of rending complete and effectual justice.

The object of certiorari is to correct excess of jurisdiction. The power is exercised by the High Court by the virtue of its extraordinary jurisdiction where the act complained of is a judicial or quasi-judicial act. Where there is an adequate remedy, a writ of certiorari will not lie and the remedy should be equally beneficial and speedy and not merely one which at some further time will bring relief. A writ of certiorari is invoked before a trial is completed to secure a fairer trial then can be obtained before an inferior court or to prevent an excess of jurisdiction after trial. It is in fact to quash an order which has been made without jurisdiction or in defiance of the rules of natural justice.

A writ of certiorari cannot be issue to coordinate courts and fortiori to superior courts. A High court  cannot issue a writ to another high court, nor can one bench of High court issue a writ to different bench of the same High Court, much less to the Supreme Court. Neither a smaller bench nor a larger bench of Supreme Court can issue a writ under article 32 of the constitution to any other bench of Supreme Court.

Since, the benches of Supreme Court are not subordinate to larger benches thereof, a certiorari is not admissible for quashing the order made on the judicial side of the court. In Prem Chand Garg v Excise Commissioner, the fact that a judicial order was being made the subject-matter of a petition under article 32 was noticed and whether such a proceeding was tenable was not considered. But the matter was raised before nine judge bench in Naresh Sridhar Mirjakar v State of Maharashtra’s case, it was concluded that judicial proceedings in the Supreme Court are not subject to writ jurisdiction.

Mandamus 

The writ of mandamus is a high prerogative writ of a most extensive remedial nature and is in form, a command issuing from the High Court of Justice, directed to any person, corporation, or inferior court, requiring him or them to do some particular thing, therein specified which appertains to his or their office and is in nature of a public duty.

Mandamus has been broadly defined as a writ issuing from a court of competent jurisdiction, directed to a person, officer, corporation, or inferior court commanding the performance of a particular duty which results from the official station of the one to whom it is directed or form operation of law, or as a writ commanding the performance of an act which the law especially enjoins as a duty resulting from an office, trust or station.

The court cannot issue a general writ of mandamus, regardless of the specific fact situations, directing that police can enter places of worship whenever criminals are suspected to have taken shelter therein.

It is process to compel to someone to perform some duty which the law imposes to him, and the writ may prohibit the doing of the thing as well as command it to be done. The name ‘mandate’ is sometimes substituted for ‘mandamus’ as to formal title of writ.

For the purpose of deciding the dispute raised by the petitioner in a petition under article 226 of the constitution praying for the issue of a writ of mandamus against his superior government officer, the High court is a civil court within the meaning of section 479A, CrPC and a court within the meaning of section 195 of the code.

Mandamus has been dominated a hard and fast writ, an unreasonable writ, a cast iron writ, the right arm of the court, the exponent of judicial power; and inflexible preemptory command to do a particular thing therein specified without condition, limitation or terms of any kind; one of the highest writs known to the law. It is an extraordinary writ because it is limited by conditions that are not applicable to an ordinary suit at law. It is reserved for extraordinary emergencies, being a supplementary means of obtaining substantial justice where there is clear legal right and no other adequate legal remedy.

Prohibition 

Prohibition is a noun derived from the transitive verb to prohibit, which literally means to forbid, to enjoin indirect and its derivative, that is, prohibition, which would stand for the act of prohibiting by or as if by authority, or a declaration, or injunction, forbidding an action, or an order to restrain or stop, enforcing against.

A writ of prohibition like a writ of certiorari is in the main issued for the purpose of restraining inferior courts or authorities exercising judicial or quasi-judicial functions from exceeding their jurisdiction. The fundamental difference between these two writs is that they are issue at different stages of the proceedings. When an inferior court or a quasi-judicial tribunal assumes jurisdiction to try or inquire into mater over which it has no jurisdiction, the aggrieved person can move the High Court for a writ of prohibition and if he succeeds, an order will issue from the High Court forbidding the inferior court or tribunal from continuing the proceedings.

The jurisdiction by prohibition is primarily supervisory, having for its objects the confinement of courts of peculiar, limited or inferior jurisdiction within their bounds; to prevent them from encroaching upon the jurisdiction of other Tribunals; to restrain the from exercising jurisdiction where they do not properly process jurisdiction at all, or else prevent them from exceeding their limits in matters of which they have cognizance.

A court can issue writ of prohibition for a limited purpose such as prohibiting the tribunal from looking into the particular paper recording recommendations or relying upon particular piece of evidence. As the law stands with regard to writ of prohibition no such relief can be granted. Either the tribunal has jurisdiction or it has no jurisdiction. If it has jurisdiction a writ of prohibition cannot be issued to it not to look into a particular paper or not to rely upon a particular piece of evidence. A writ of prohibition commands the court or tribunal to whom it is issued to refrain from doing something which it is about to do. It prevents a tribunal possessing judicial or quasi-judicial powers from assuming or threatening to assume jurisdiction which it does not possess.

A writ of prohibition is issued only when patent lack of jurisdiction is made out. It is true that a High Court acting under article 226 of the constitution is not bound by the technical rules applying to the issuance of a prerogative writ like certiorari, prohibition, and mandamus in the United Kingdom, yet the basic principles and norms applying to the said writs must be kept in view, as observed by the Supreme Court in TC Bassappa v T Nagpal.

Quo Warranto

Quo stands for what; warranto stands for warrant or authority. Quo warranto is the name of writ by which government commences an action to recover an office or franchise from the person or corporation possessing it. The warrant commands the sheriff to summon the defendant to appear before the court to which it is returnable, to show by what authority he claims the office or franchise. It is the remedy or proceeding whereby the state enquires into the legality of the claim which a party asserts to an office or franchise, and to oust him from its enjoyment if the claim be not well founded, or to have the same declared forfeited, and to recover it, if having once been rightfully possessed and enjoyed, it has become forfeited for misuse or non user.

The purpose of this writ was not to safeguard the rights of aggrieved persons but to curb the pretension of the feudal lords and extend the authority of the King. Mandamus was the command issuing in the King’s name from the court of King’s Bench and directed to any person, corporation or inferior court of judicature, within the King’s dominions; requiring them to do some particular thing therein specified which appertains to their office or duty certiorari. 

The quo warranto proceedings affords a judicial inquiry in which any person holding an independent substantive public office, or franchise, or liberty, is called upon to show by what right he holds the said office, franchise or liberty. If the enquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ quo warranto ousts the usurper from the office. The procedure for quo warranto confers jurisdiction and authority on the judiciary to control executive action in the matter of making appointment to public offices against the relevant statutory provisions.

It also protects citizen from being deprived of public office to which he may have right. If these proceedings are adopted subject to conditions recognized in that behalf, they tend to protect the public from usurpers of public office. In some case, persons not entitled to public office may be allowed to occupy them to continue to hold them as a result of the convenience of the executive or with its active help. In such cases if the jurisdiction of courts to issue writ of quo warranto is properly invoked, the usurper can be ousted and the person entitled to the post is allowed to occupy it. Before a citizen can claim a writ of quo warranto, he must satisfy the court inter alia that the office in question Is a public office, and is held by the usurper without legal authority, and that necessarily leads to an inquiry as to whether the appointment of the said alleged usurper has been made in accordance with law.

Conclusion 

Thus 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. the Supreme Court and the High Court have admitted the letters, postcards, telegrams, and even newspaper items as writ petitions under Article 32 and 226 respectively of Indian Constitution. These petitions provide extraordinary judicial relief to the person whose rights are being infringed by any judicial or quasi- judicial order. PIL has an important role to play in the justice system; it affords a ladder to justice to the disadvantaged sections of the society, some of which might not even be well-informed about their rights. 

Suggestions/Scope

Clause(2) of article 32 has though empowered the parliament to confer the power to issue any of these writs also on any other court, but no such laws has yet been enacted, and the writ jurisdiction is exercisable by Supreme Court and by High Court only.

The words ‘orders’ or ‘directions’ added to word writ are only by way of abundant precaution, because both the words ‘orders’ and ‘writs’ are only synonyms of the word ‘command’ delivered by a court or a judge. The word order itself stands for the mandate or determination of court upon some subsidiary or collateral matter arising in an action, not disposing of the merits, but adjudicating a preliminary point or directing some step in the proceedings. 

Be it a writ, order or direction, all the three terms, in whatever sophisticated terms they may have been couched, convey the meaning of an authoritative communication requiring a person or authority to do or abstain from doing something, or to proceed in a specified course for doing the specified thing.

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