Jan 9, 2018
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How are Writs classified under Constitution of India?

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How are Writs classified under Constitution of India?

Constitution of India

Constitution of India contains 395 articles in 22 parts. There are also 12 schedules in Indian Constitution. Additional articles and parts inserted later through various amendments. The article below gives a brief overview of the Constitution of India. The Constitution provides for a Parliamentary form of government which is federal in structure with certain unitary features.

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief, faith and worship;
EQUALITY of status and of opportunity; and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the nation;
IN OUR CONSTITUENT ASSEMBLY this twenty sixth day of November 1949 , do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

 “The Republic is governed in terms of the Constitution of India which was adopted by the Constituent Assembly on 26th November, 1949 and came into force on 26th January, 1950”.

Constitution of India, Official site, Retrieved on 9th January, 2018. 

Types of Writs

Article 226 allocate the powers to High Courts to issue writs. Its a formal written order issued by a government entity. Government entity are mostly the Courts in the name of the  sovereign power. A warrant is also a type of writ. Article 32 of the Constitution of India empowers the Supreme Court to issue orders and writs to safeguard the fundamental rights guaranteed under part III of the Constitution of India. The High Court also empowered to issue writs in order to safeguard the fundamental rights under part III of the Constitution.

The high court can issue following writs:

  1. Habeas corpus
  2. Mandamus
  3. Prohibition
  4. Certiorari
  5. Quo warranto

Its issued for enforcement of any of the fundamental rights or for any other purpose as high court thinks fit.

1. Habeas corpus

It means show the detained body. If a person wrongfully detained, then his relatives can file this writ with the High court. The court then orders, the police officer or the person who has the custody of that person, to present the detained person. Thereafter court examines the validity of the detention. If court thinks fit, may set the person free. Therefore, this writ treated as protection against wrongful detention or to life and liberty of person.  Such a writ can issued in following example cases When :

  • the person detained and not produced before the magistrate within 24 hours.
  • the person arrested without any violation of a law.
  • a person arrested under unconstitutional law.
  • detention done to harm the person or malafidely detained.

Thus, Habeas corpus writ protects the liberty of individual against arbitrary detention. The writ petition filled by a person whose right infringed. Habeas corpus writ is applicable to preventive detention also. This writ issued against both public authorities as well as individuals.

2. Writ of Mandamus

A writ of mandamus is in the form of command. The term mandamus means “We Command”. This writ issued by the court to the inferior court, public official, public body, corporation, tribunal and also government. The writ directs them to perform their duties which they have refused to perform. Therefore, Writ of Mandamus is a wakening call for the authority. It wakes up the sleeping authorities to perform the entrusted duties. Mandamus thus demands an activity and sets the authority in action.

Mandamus cannot issued against the following:

  • a private individual or private body.
  • if the duty in question is discretionary and not mandatory.
  • against president or governors of state
  • against a working chief justice
  • to enforce some kind of private contract.

The writ petition of mandamus can filled by any person, who wants the concerned authority to perform their duties.  Such a filing person must have real or special interest in the subject matter and must have legal right to do so.

3. Prohibition

The writ of prohibition prohibits the lower courts such as special tribunals, magistrates, commissions, and also other judiciary officers from acting beyond their capacity. They can not do something which exceeds to their jurisdiction or acting against rule of natural Justice. For example if a judicial officer has personal interest in a case, it may hamper the decision and the course of natural justice.

Difference between Mandamus and Prohibition

  • Mandamus directs activity whereas Prohibition directs inactivity.
  • Mandamus issued against any public official, public body, corporation, inferior court, tribunal or government whereas prohibition issued only against judicial and quasi-judicial authorities and NOT against administrative authorities, legislative bodies

4. Writ of Certiorari

Certiorari means to “certify”. This writ orders to transfer a case or suit from inferior court to superior court. Its normally issued by the higher to the lower court. Its issued by the higher court to direct the lower court to transfer a pending case or suit. It’s a writ that orders to move a suit from an inferior court to superior court. Its generally done because superior court believes that either the inferior court had no jurisdiction or committed an error of law. Thus, certiorari is a kind of curative writ.

5.  Quo warranto

Quo warranto means “by what warrant”? or by what authority?. This writ issued to enquire into legality of the person or public office. It stops the person to act in an office, which he/she not authorized to hold. Thus stops usurpation of public office by anyone. This writ is applicable to the public offices only and not to private offices.

Under Article 129 and 215, Supreme Court and High Courts are called Courts of Records which means that all their decisions and procedure are documented and compiled and they have the right to punish in matters related to contempt-helps exercise very strong control on Public Administration.

Under Article 143, Supreme Court has advisory jurisdiction which means that if any point of law and Constitution is not clear to the Government of India then through President legal opinion can be taken from Supreme Court. Since it is an advise, not a judgement hence it is not binding. So far 14 times advise has been sought in which all the opinions have been accepted.

 

 

Article Categories:
Constitutional Law

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