A CRITICAL ANALYSIS ON TYPES OF WRITS UNDER THE INDIAN CONSTITUTION.

ABSTRACT:

The concept of writ comes under the Article 32 and Article 226 of the Indian Constitution. The fundamental rights enshrined in the Indian constitution becomes senseless when it is not enforced properly. When a person is deprived of his fundamental rights, he/she seeks for judicial remedies under Article 32 and Article 226. These two Articles provide separate but parallel provisions of writ jurisdiction with the Supreme Court and High Court respectively. The power of Supreme Court and High Court to issue writs for the enforcement of fundamental rights have been dealt under part-III of the Indian Constitution. The Supreme Court of India chiefly defends the fundamental rights of every citizen. For the enforcement of the fundamental rights of the citizens, the Supreme Court issues five kinds of writs such. The five kinds of writs are Habeas corpus, mandamus, prohibition, certiorari and quo-warranto. This article mainly focuses upon these five kinds of writs that come under the original jurisdiction of The Supreme Court and High Court.

KEY WORDS:

Writs, Fundamental rights, judicial remedy, Article 32 and article 226.

INTRODUCTION:

The word writ actually means ‘order’. Writs are a written order that commands constitutional remedies for Indian Citizens against the violation of his/ her fundamental rights from the Supreme Court or High Court. Article 32 of the Indian Constitution has been incorporated as a fundamental right and it provides for constitutional remedy against the violation of fundamental rights. The Article 32 is limited only to grant remedy against deprival of fundamental rights. Article 226 has wider scope than that of the Article 32. Article 226 of the Indian Constitution is empowered to issue writs against deprival of both fundamental rights and constitutional rights. Article 226 is not incorporated as a fundamental right, but it is enshrined as a constitutional provision. However the right to move the Supreme Court for judicial remedy is an absolute right whereas to a limited extent, this matter differs in the right to move the High Court. The basic objective of this power is to provide justice for citizens whose fundamental rights have been violated. The five kinds of writs such as habeas corpus, mandamus, certiorari, prohibition and quo-warranto are issued by the Supreme Court to enforce the fundamental rights. These five writs are deeply discussed with related case laws in this article.

HABEAS CORPUS:

The term habeas corpus is a Latin term which means ‘to have the body’. This writ has its origin the English law and now it has been adopted almost in all nations. The writ of habeas corpus has been issued by the court in order to relieve a person who has been unlawfully arrested or detained. The court can issue the order when the person is arrested or detained illegally and has not been produced before the magistrate within 24 hours. The principle of habeas corpus ensures that a prisoner can be released from unlawful detention. This writ is more valuable for the protection of personal liberty. The application can be filed by the prisoner and in certain cases, it can also be filed by friend or relative of the prisoner. The writs of habeas corpus orders to produce the prisoner before the court and the court decides whether the prisoner has been arrested lawfully or unlawfully. If the courts finds the prisoner to be arrested in a wrongful manner then the court releases the person. The Article 21 which provides for protection of life and personal liberty cannot be denied even during the proclamation of Emergency .The best example for this writ is the case of Additional district magistrate of Jabalpur v. Shiv Kant Shukla, which is popularly known as the ADM Jabalpur case. In this case, Shiv Kant Shukla was arrested and detained without any reason during the time of Emergency. Majority bench held that the citizen is given only the right to life under Article 21. Justice H.R. Khanna gave a dissenting opinion, he held that even in the absence of Article 21, the state has got no power to deprive a person of his life and personal liberty.

MANDAMUS:

The term Mandamus is a Latin term which means ‘to command’. The writ of mandamus is a judicial remedy which orders a person to act legally or to abstain from doing an act which is legal. The Supreme Court or High Court issues this writ when any Government, court, corporation or tribunal or public authority does an illegal act or fails to do a statutory duty. The writ of mandamus is issued only when a mandatory duty has not been performed and to secure public duties and private rights withheld by the public authorities.

CERTIORARI:

The term certiorari is a Latin term which means ‘to inform’. The writ of certiorari is issued by Supreme Court or High Court ordering the tribunal or some other inferior court to transfer the case they are dealing with to it. This writ can be issued to judicial or quasi-judicial body when such judicial body acts in excess of jurisdiction or lack of jurisdiction or abuse of jurisdiction or error of law apparent on the face of record or against the principle of natural justice. In Hari Vishnu v. Ahmed Ishaque the Supreme Court held that no error could be said to be error on the face of the record if it was not self-evident.

PROHIBITION:

The term prohibition is a Latin term which means ‘to stop’, it is also known as “stay order”. The writ of prohibition is issued only against the judiciary and does not lie against the executive. This writ is primarily issued against any lower court or quasi-judicial body who tries to violate the powers vested in them. In S. Govind Menon v. Union of India the court held that prohibition is not a continuation of proceeding to be prohibited but it applied in case where excess or lack of jurisdiction exists.

QUO WAARANTO:

The term quo warranto is a Latin term which means ‘by what warrant’. This writ is issued to restrain a person from working in a public office to which he is not entitled. This writ to prevent unwanted or illegal assumption of any public office. For example the retirement age of a judge is 65, if a person of 70 years of age hold a public office then a writ of certiorari is issued.

CONCLUSION:

As the preamble of Indian Constitution clearly paves way for the economic, social and political justice to all its citizens. Wherever a person finds his right to be violated can move the High Court or Supreme Court for the enforcement of their rights. These Supreme Court can issue writs in case of violation of fundamental rights and High Court can issue writs in case of both fundamental and constitutional rights. Thus the Supreme Court and High Court acts as a defender of Fundamental rights enshrined under Part-III of the Indian Constitution by issuing these writs.

Credit : Vinitha. E

Clg name: School Of Excellence in Law, Tamilnadu Dr. Ambedkar law university.