Writs for UPSC
Writs for UPSC: A writ petition can be termed as a formal written order issued by a judicial authority who possesses the authority to do so. A writ is a formal written order issued by anybody, executive or judicial, authorised to do so. In modern times, this body is generally judicial. Therefore, a writ can be understood as a formal written order issued by a Court having authority to issue such an order. Orders, warrants, directions, summons etc. are all essentially writs. A writ petition is an application filed before the competent Court requesting it to issue a specific writ.
Writs for UPSC: Introduction
Fundamental Rights are contained in Part III of the Indian Constitution including the right to equality, right to life and liberty etc. Merely providing for Fundamental Rights is not sufficient. It is essential that these Fundamental Rights are protected and enforced as well. To protect Fundamental Rights the Indian Constitution, under Articles 32 and 226, provides the right to approach the Supreme Court or High Court, respectively, to any person whose Fundamental Right has been violated. At the same time, the two articles give the right to the highest courts of the country to issue writs in order to enforce Fundamental Rights.
Writs for UPSC: Supreme Court Versus High Court
In case of the enforcement of Fundamental Rights, the jurisdiction of the Supreme Court is original but not exclusive. It is concurrent with the jurisdiction of the high court under Article 226. Article 226 vests original powers in the high court to issue directions, orders and writs of all kinds for the enforcement of the Fundamental Rights. It means when the Fundamental Rights of a citizen are violated, the aggrieved party has the option of moving either the high court or the Supreme Court directly. Further, the Parliament (under Article 32) can empower any other court to issue these writs. But no such provision has been made so. The writ jurisdiction of the Supreme Court differs from that of a high court in three respects:
- 1. The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a high court can issue writs not only for the enforcement of Fundamental Rights but also for any other purpose. The expression ‘for any other purpose’ refers to the enforcement of an ordinary legal right. Thus, the writ jurisdiction of the Supreme Court, in this respect, is narrower than that of high court.
- The Supreme Court can issue writs against a person or government throughout the territory of India whereas a high court can issue writs against a person residing or against a government or authority located within its territorial jurisdiction only or outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction. Thus under Article 226, a writ petition can be filed before any High Court within whose jurisdiction the cause of action arises, either wholly or in part. It is immaterial if the authority against whom the writ petition is filed is within the territory or not. Thus, the territorial jurisdiction of the Supreme Court for the purpose of issuing writs is wider than that of a high court.
- A remedy under Article 32 is in itself a Fundamental Right and hence, the Supreme Court may not refuse to exercise its writ jurisdiction. On the other hand, a remedy under Article 226 is discretionary and hence, a high court may refuse to exercise its writ jurisdiction. Article 32 does not merely confer power on the Supreme Court as Article 226 does on a high court to issue writs for the enforcement of fundamental rights or other rights as part of its general jurisdiction. The Supreme Court is thus constituted as a defender and guarantor of the fundamental rights.
Where a fundamental right has been infringed, either the Supreme Court or the High Court can be resorted to. It is not necessary to go to the High Court first and only thereafter approach the Supreme Court. However, if a writ petition is filed directly in the Supreme Court, the petitioner has to establish why the High Court was not approached first.
Writs for UPSC : Types of writs
Articles 32 and 226 specifically provide for five kinds of writs.
Writs for UPSC : Habeas Corpus
‘Habeas Corpus’ literally means “to have a body of”. This writ is used to release a person who has been unlawfully detained or imprisoned. Thus, this writ is a bulwark of individual liberty against arbitrary detention. By virtue of this writ, the Court directs the person so detained to be brought before it to examine the legality of his detention. If the Court concludes that the detention was unlawful, then it directs the person to be released immediately.
Examples of lawful detention are:
- Detention is lawful
- The proceeding is for contempt of a legislature or a court
- Detention is by a competent court
- Detention is outside the jurisdiction of the court.
Examples of unlawful detention are:
- The detention was not done in accordance with the procedure laid down. For instance, the person was not produced before a Magistrate within 24 hours.
- The person was arrested when he did not violate any law.
- An arrest was made under a law that is unconstitutional.
The writ of habeas corpus can be issued against both public authorities as well as private individuals. This writ can be filed by the detained person himself or his relatives or friends on his behalf.
Writs for UPSC : Mandamus
It literally means ‘we command’. It is a command issued by the court to a public official/authority asking him to perform his official duties that he has failed or refused to perform. It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose. The writ of mandamus cannot be issued (a) against a private individual or body; (b) to enforce departmental instruction that does not possess statutory force; (c) when the duty is discretionary and not mandatory; (d) to enforce a contractual obligation; (e) against the president of India or the state governors; and (f) against the chief justice of a high court acting in judicial capacity (g) Performance of the duty involves rights of purely private nature (h) Where such direction involves violation of any law.
A writ petition seeking mandamus must be filed by the person who has an interest in the performance of the duty by the public authority.
Writs for UPSC : Prohibition
Literally, it means ‘to forbid’. A writ of prohibition is issued by a Court to prohibit the lower courts, tribunals and other quasi-judicial authorities from doing something beyond their authority. It is issued to direct inactivity and thus differs from mandamus which directs activity.
The writ of prohibition can be issued only against judicial and quasi-judicial authorities. It is not available against administrative authorities, legislative bodies, and private individuals or bodies.
Writs for UPSC : Certiorari
In the literal sense, it means ‘to be certified’ or ‘to be informed’. It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law. Thus, unlike prohibition, which is only preventive, certiorari is both preventive as well as curative. Till recently, the writ of certiorari could be issued only against judicial and quasi-judicial authorities and not against administrative authorities. However, in 1991, the Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting rights of individuals.
Like prohibition, certiorari is also not available against legislative bodies and private individuals or bodies.
Writs for UPSC: Quo-Warranto
In the literal sense, it means ‘by what authority or warrant’. It is issued by the court to enquire into the legality of claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person. Through this writ, the Court calls upon a person holding a public office to show under what authority he holds that office. If it is found that the person is not entitled to hold that office, he may be ousted from it. Its objective is to prevent a person from holding an office he is not entitled to. The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution. It cannot be issued in cases of ministerial office or private office. Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.
Writs for UPSC: Process
A writ petition can be filed by any person whose Fundamental Rights have been infringed by the State. Under a Public Interest Litigation, any person may file a writ petition in the interest of the general public even if his own Fundamental Right has not been infringed.
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