“It is the very soul of the Constitution and the very heart of it”, these are the famous words of Dr. B.R. Ambedkar when talking about Article 32 of the Constitution of India. But why would the Father of the Indian Constitution think so highly of a single Article in a statute which at the time consisted of 395 Articles?
That was because, he along with the other Constitutional makers, understood that even though the Indian Constitution provides various fundamental rights to every citizen in Part III ( Articles 12 to 35 ) of the Constitution, all these rights would be meaningless if there wasn’t an effective machinery to enforce these rights.
Hence, Article 32 of the Indian Constitution provides for the enforcement of fundamental rights in the form of writs.
Table of Content 💻
Difference between Prohibition and Certiorari
Writs
A writ is a formal order issued by a competent court. The Supreme Court is empowered under Article 32 to issue the writ and the High Court is empowered to issue writs under Article 226. A writ is issued when the fundamental right of any individual is violated. Under the Indian Constitution, such an individual can directly approach either the High Court or the Supreme Court for the enforcement of his fundamental rights by filing a writ petition.
Types of Writs
The Indian Constitution provides for 5 types of writs, they are:
Habeas Corpus,
Mandamus,
Prohibition,
Quo Warranto,
Certiorari.
Habeas Corpus
The term "Habeas Corpus" traces its origin to Latin, which means 'you may have the body'. Also known as the 'Great writ', it is generally issued by the Court in cases of illegal detainment.
This writ, once issued, commands any person or authority who has detained another individual, to present the detainee before the court. If the person detaining such a person cannot provide reasonable grounds for such detainment, the detainee is immediately set at liberty by the Court.
However, in the case of Kanu Sanyal Vs District Magistrate, Darjeeling ( AIR 1974 SC 510 ), the Supreme Court held that the production of the body of a person illegally detained is not an essential feature of the writ of Habeas Corpus.
Illustration: A, a police officer detains B without a warrant. On an application by B to the Supreme Court, A is summoned by the court and asked for the grounds of arrest. Since A is unable to provide a reasonable ground for detainment, the writ of Habeas Corpus is passed and B is set free.
This is an important remedial right to ensure that no person is detained or restrained except with the due process of law. If this writ didn’t exist, it could endanger the personal liberty of every citizen.
Rules Regarding Habeas Corpus
This Writ will only apply in cases of an arrest or detention which is made in contravention of the procedure established by the law which authorises such intervention for the time being in force, or when such law is in itself invalid or unconstitutional.
The writ of habeas corpus cannot be issued in the following cases:
If the detention is lawful
In cases relating to the contempt of Court or Parliament.
If the detention takes place outside the jurisdiction of the competent Court.
Where a person is committed to jail custody by a competent court, by an order which prima facie does not appear to be without jurisdiction or wholly legal.
If the person detained is already set free.
An appeal against an order of the High Court granting or rejecting the application for the issue of the writ of Habeas Corpus lies under Articles 132, 133, 134, or 136 of the Indian Constitution.
Cases:
ADM Jabalpur v. Shivkant Shukla, also known as the Habeas Corpus case is a landmark as well as a controversial decision in the case of Habeas Corpus. The judgment held that a person’s right to Habeas Corpus can be suspended. This judgment however was later overruled by a 9 judges constitutional bench of the Supreme Court in another landmark case,
Justice K. S. Puttuswamy (Retd.) and Anr. vs Union Of India And Ors. (Right to Privacy verdict). This judgment inter alia stated,
"The judgments rendered by all the four judges constituting the majority in Additional District Magistrate, Jabalpur are seriously flawed. Life and personal liberty are inalienable to human existence.”
In the case of Sunil Batra v. Delhi Administration (1980 AIR 1579), the Supreme Court held that the writ of Habeas Corpus is not only limited to the wrongful or illegal confinement of a detainee or prisoner, but it also encompasses the protection of any prisoner from any kind of ill-treatment and discrimination while in custody by the authorities.
In the case of Gulam Sarvar V. Union of India, the Court held that the rule of res judicata is not applicable in the writ of Habeas Corpus, and where the petitioner has been refused a writ from the High Court he may file a petition for the same writ under Article 32.
Mandamus
Mandamus means ‘we command’. With this writ, a court can command anybody to perform its legal duties which it may have previously neglected. This writ can be issued against a public official, public corporation, tribunal, inferior court, and even the government.
The writ of Mandamus is generally issued when there is a failure to perform a mandatory duty. But, even when there is a failure in the performance of a mandatory duty, the parties alleging such breach must prove that they made a specific demand for the performance of such duties and that those demands were refused.
The writ of Mandamus, however, cannot be issued against a private individual or body, the President or Governors of States, or working Chief Justices.
The President and the Governor of a State are protected from this writ under Article 361.
Illustration: A licensing officer is under a duty to issue a licence to an applicant who fulfils all the conditions laid down for the issue of such licence. If despite the fulfilment of such conditions, the officer or the authority concerned refuses or fails to issue the licence, then the aggrieved person has a right to seek the remedy through a writ of Mandamus.
Rules regarding Mandamus
The writ of Mandamus cannot be issued in the following cases:
Against a private individual or a private organisation.
When the duty is merely discretionary and not mandatory.
For the enforcement of a contractual obligation between parties.
When any other remedy is available under any other law for the time being in force.
If the issuance of any such direction would violate any law.
When the petition is for an anticipatory injury.
Cases:
In the case of Sohanlal v. Union of India (1957), the Supreme Court stated that the Writ of Mandamus can lie against a private individual only if it is proven that he is integrated with a public authority.
Even though the writ of Mandamus can be refused if any other remedy is available with the appellant under any other law. It was held In the case of Rashid Ahmad v. Municipal Board (1950), seeking the writ cannot be absolutely restricted.
Prohibition
Prohibition means ‘to forbid’. This writ is issued by the Superior Court ‘to forbid’ any inferior court from exceeding its jurisdiction. This writ is issued in both cases when there is an excess of jurisdiction and where jurisdiction is absent. It can also be issued if the inferior judicial body acts contrary to the rules of natural justice.
The writ of Prohibition is different from the writ of Mandamus as Mandamus commands activity while Prohibition commands inactivity.
In the case of S. Govinda Menon v. Union of India, AIR 1967 SC 1274, it was held that the writ of Prohibition can be issued in both types of cases where there is an excess of jurisdiction or where there is an absence of it.
Rules regarding Prohibition
It can only be issued against judicial or quasi-judicial authorities.
The writ may be refused when the defect in the jurisdiction is not apparent.
Certiorari
Certiorari means 'to certify' or ‘to be informed’. This writ is issued by a Superior Court to an inferior judicial body. It can either be invoked pending trial to transfer the case to itself or after trial to quash any order by such an inferior judicial body.
The Scope of Certiorari has been explained by the Supreme Court in the case of Province of Bombay v. Khushaldas AIR 1950 SC 22, the court held that, whenever any body of persons having legal authority to determine questions affecting the rights of the subject and having the duty to act judicially acts more than their legal authority, a writ of Certiorari lies. It does not lie to remove merely ministerial acts or to remove or cancel executive administrative acts.
Rules Regarding Certiorari
The writ of Certiorari is issued only against judicial acts on the following grounds:
Excess of jurisdiction;
An error of law ‘apparent on the face of record’ and not fact;
Violation of the principles of natural justice
Quo Warranto
Quo Warranto means ‘by what authority’. This writ is issued to enquire a person in the office to show by what authority he holds the office.
Illustration: Where ‘X’ is a person without any legal qualification to be a police officer, who assumes such a position. Here, the writ of Quo Warranto can be issued against him to enquire by what authority he has assumed that position.
The case of Centre for PIL v. Union of India, AIR 2011 SC 1267 has established that before claiming a writ of Quo Warranto, the person claiming must satisfy the court inter alia that the office in question is a public office and is being held by a person without legal authority which leads to the enquiry as to whether the appointment of the said person has been in accordance with law or not.
Rules Regarding Quo Warranto
The writ of Quo Warranto can be claimed by any person. Irrespective of the fact that his fundamental right or any other legal right has been infringed or not.
Essential conditions for the issuance of the writ of Quo Warranto are:
The office is of a public nature;
The office is established under the Constitution or any other statute;
Contravention of the statute under which such an office is established.
The office is substantive in nature.
Difference between Prohibition and Certiorari
The writs of Prohibition and Certiorari have a lot in common. Both these writs are issued against inferior courts, concerning their excess of jurisdiction. They both are also similar in regards to who they apply to, i.e. only against judicial and quasi-judicial bodies.
But there is some difference between the two as well and it is as follows:
Prohibition | Certiorari |
This writ is preventive in nature | This writ is corrective in nature |
It is issued during a trial when no order has been issued. | It is issued post-trial when an order has been issued. |
Interestingly, both the writs of Prohibition and Certiorari can be applied at the same time if a case is pending before a Court and it has not been finally disposed of, here both writs will apply. The writ of Prohibition to prevent the Court from proceeding further with the case and the writ of Certiorari for quashing anything decided so far in the case. ( Hari Vishnu Kamath v. Ahmad Ishaque AIR 1955 SC 233 )
You May Not Know
The concept of the writ petition is borrowed from English Law.
According to Article 32(3) of the Indian Constitution, the Parliament can by law empower any other court to exercise the powers of a Supreme Court with the issuance of any writ.
Habeas Corpus cannot be used for mere enforcement of an order passed by a foreign court. ( Nithya Anand Raghavan v. State of NCT Delhi, AIR 2017 SC 3137 ).
A company cannot maintain a petition under Article 32 for enforcement of fundamental rights guaranteed under Article 19. The company not being a citizen has no fundamental rights ( Shree Sidhbali Steels Ltd. v. State of Uttar Pradesh, AIR 2011 SC 1175 )
Except for a writ of Quo Warranto, PIL is not maintainable in service matters ( Hari Bansh Lal v. Sahodar Prasad Mahto )
The detention of any person becomes unlawful if he/she is not presented before a Magistrate within 24 hours of the arrest. After the expiry of such a period, the person will be entitled to be released on the writ of Habeas Corpus.
Frequently Asked Questions
Q) Who can file a writ petition?
A) In the case of violation of fundamental rights by the State, a person can file a writ petition to the Supreme Court ( Article 32 ) or the High Court ( Article 226 ), but when some other right has been violated, then a writ petition can be filed only under the High Court ( Article 226 ).
Q) What is the time limit for filing a writ petition?
A) Neither Article 32 nor Article 226 provide any time frame for filing a writ petition but both the Courts refuse to grant relief when the writ petition is filed after long, unreasonable, and inordinate delay. Now, this delay varies on a case-to-case basis.
Q) Can a writ petition be refused?
A) Yes, a writ petition can be refused mainly on 3 grounds:
Unreasonable delay
No substantial question of law
Other remedies are available.
Q) Can a writ petition be filed without an advocate?
A) Yes, a writ petition can be filed without an advocate.
Q) Can the right to constitutional remedies be suspended?
A) According to Article 32(4) of the Indian Constitution, the right of constitutional remedies can be suspended but only under the provisions of our Constitution.
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