Writs Mentioned in the Indian Constitution

Writs Mentioned in the Indian Constitution

Habeas Corpus

It literally means ‘to have the body’. By issuing such a writ, the court can order that a person who has been imprisoned or detained to be brought before it and enquire under what authority he has been imprisoned or detained. Nobody can be deprived of his right to remain free either by the state or by any group or individuals without being assigned a

lawful order. Generally, the writ of habeas corpus is applied only after a person has been arrested. However, in exceptional cases, it may be granted even when detention is threatened or not yet to be carried out. The Constitution of India mentions habeas corpus in Articles 32 and 226.

Mandamus

It literally means a ‘command’ issued by the court to any public or quasi-public legal bodythat has refused to perform its legal duty. It is an order by a superior court commanding a person or a public authority to do or forbear to do something in the nature of public duty. In India, this writ lies not only against the officers or other persons who are bound to do public duty but also against the government itself. The writ is also available against inferior courts or other judicial bodies when they refuse to exercise their jurisdiction, and thus, to perform their duties. The mandamus may not be granted against the President, the Governor and the private individual or body (incorporated or not), except where the state is in collusion with such private party in the matter of contravention of any provision of the Constitution.

Prohibition

It is issued by a superior court to an inferior court preventing it from dealing with a matter over which it has no jurisdiction. The object of the writ is to compel inferior courts to keep themselves within the limits of their jurisdiction. The writ of prohibition differs from the mandamus in that while mandamus commands activity, prohibition commands inactivity. Further, mandamus is available not against administrative authorities, prohibition, as well as certiorari, are issued against administrative and quasi-judicial authorities.

Certiorari

It is a writ issued by a superior court to an inferior court or body exercising judicial or quasi-judicial powers to remove a suit and adjudicate upon the validity of the proceedings or body exercising judicial or quasi-judicial functions. In India, certiorari would be available even against administrative bodies not having quasi-judicial obligations, if they affect the rights of individuals, without conforming to the principles of ‘fair play’. The object of the writ of certiorari is to get rid of a decision that is vitiated by a defect or jurisdiction or a denial of the basic principles of justice – not substitute a right determination for a wrong one.

Quo Warranto

It is an order issued by the court to prevent a person from holding office to which he is not entitled and to oust him from that office. It is a powerful instrument for safeguarding against the usurpation of public offices. The fundamental basis of the proceeding of quo warranto is that the public has an interest in seeing that an unlawful claimant does not usurp public office. Quo warranto is a discretionary remedy that the court may grant or refuse according to the facts and circumstances of each case. However, the court may refuse it where the application was actuated by ill-will or malice, or ulterior motive.

The conditions necessary for the issue of writ are:

(i) The office must be public and it must be created by a statute or by the constitution itself;

(ii) The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another; and

(iii) There has been a contravention of the Constitution, a statute or statutory instrument, in appointing such a person to that office.

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