Writs Under Indian Constitution

Introduction[]

There is a Latin Maxim '''''Ubi Jus Ibi Remedium'''''''''which''says that where there is a right there is a remedy. No right, can exist without a proper remedy accompanying it. The law presumes that there is no right without a remedy; and if all remedies are gone to enforce a right, the right in point of law ceases to exist. Only the presence of certain rights is not enough, there must be a proper mechanism to enforce these rights if anyone violates them. By keeping that in mind our constitution makers have also provided us with certain remedies along with Fundamental Rights. Fundamental Rights are mentioned in part III of our Indian Constitution from Article 12 to Article 35 within which Article 32 talks about Constitutional Remedies. Dr. B R Ambedkar, the father of the Indian Constitution once called this article as 'Heart and Soul of the Indian Constitution.

Five writs are mentioned under Article 32 to provide relief to the people of India by approaching the Higher Courts of the country in case of necessity. Under Article 32 Supreme Court has the power to enforce these writs in case there is any violation of Fundamental Rights. High Courts have the power to enforce these writs under Article 226. But the High Courts' power is not restricted to enforcing these writs only in the case of Fundamental Rights for other purposes also. These five Writs are Habeaus Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto.

• ''''''''''Habeaus Corpus-'"Habeaus Corpus" is a Latin term that means "you may have the body". If any person has been detained or imprisoned illegally the court has the power through its order to physically bring that person in front of the court. The Court then finds out the reason behind the person's detention if it turns out to be that the person has been detained illegally the court then sets the person free. The aim is to give quick immediate remedy to a person who has been detained unlawfully. The Supreme Court in Kanu Sanyal v. District Magistrate, Darjeeling held that the production of the body of the detenu in front of the court is not essential in this writ.

i. Essential Conditions to Issue Habeaus Corpus:

The person has been detained unlawfully and it violates the prescribed norms.

The person has been detained by a private individual with malafide intentions. ii. Who can apply for the writ Mainly the person whose right has been infringed can file a petition. But in case of this as the person is detained unlawfully he may not have the chance so any family member or friend can file the petition on behalf of the detenu. iii. When the writ of Hebeaus Corpus cannot lie

• If the detaining authority can prove in front of the court that the person in prison in execution of a sentence by a competent court.
• The person has been detained following a procedure established by law.

2.'Mandamus-'The word "Mandamus" means a command or an order. It is an order directing a person or a public authority (which includes an inferior court, corporation, or Government) to do its duty which can be in nature of performing any public duty or in certain cases some statutory duty. The writ of Mandamus is not applicable against any negligence in the conduct of any private person or private body. i. Necessary conditions before issuing The writ of Mandamus

• The petitioner must show that there is a statutory duty to be performed and the person in authority has failed to discharge his obligation.
• The petitioner has to prove that the public authority was acting under a law which has been declared unconstitutional.
• The petitioner must show that he has a legal right and the person against whom the petition has been filed has a legal duty to perform.

ii. When the writ of Mandamus cannot lie

• When there is merely a discretion to work and the work is not mandatory this writ cannot be applicable.
• The writ of Mandamus cannot lie against any private individual or any private body.
• This writ cannot be granted to enforce any obligation that arises from any contract.

iii. Against whom the writ of Mandamus cannot lie

• The writ of Mandamus cannot lie against The President of India and the Governor of a particular state to discharge their duties.
• Any judge acting in their judicial capacity they may come under the purview if they are conducting any work under an administrative capacity.

3. 'Prohibition'- A writ of prohibition is issued mainly to prevent an inferior court or tribunal from exceeding its jurisdiction or if it is not following natural justice principles. Through Prohibition, the superior courts force inferior courts to keep within the limits of their jurisdiction.

i. Grounds when a court can grant Prohibition

• An inferior court or tribunal has usurped its jurisdiction by listening to any appeal where no appeal lies under an act.
• The authority is acting under an ultra-vires law.
• The Prohibition lies only against judicial or quasi-judicial bodies.
• Prohibition can only be issued as long as the proceedings are pending before a court or tribunal.

4. 'Certiorary'- A writ of Certiorary is issued by a superior court to an inferior court or body by exercising its judicial and quasi-judicial power to quash an order which has been made by the inferior court without jurisdiction or in violation of the rules of natural justice.

i. Grounds where Certiorari can be issued

• If there is an excess of jurisdiction on the part of an inferior court.
• The inferior Court or the tribunal is not following the principle of Natural Justice.
• There is an error of law apparent on the face of the record but there is no error of facts.

'Difference Between Prohibition and Certiorari'

It seems that there is no difference between these two writs because both of these apply only in the cases of Judicial and Quasi-Judicial matters and not against any executive or legislative action. But there is a difference Prohibition can only be applied till the time the proceeding is pending before the court but once the inferior court or tribunal has passed any judgment then Prohibition cannot be applied in that case only Certiorari can be issued. So, from here we can conclude that the writ of Prohibition is in short prevention rather than cure, while Certiorari is a cure.

5. 'Quo warranto'- The Latin word Quo warranto means "What is Your Authority". Through this writ, the court called upon a holder of an office under what authority he is holding office. The object of the writ is to prevent any person from holding any office if he is not legally entitled to do the same. After the inquiry, if it is proved that the person has no legal backing to hold the post the court may pass an order to prevent him from holding the office and may also declare the office vacant. After the Court order disqualifies a person if he is again appointed in that position after removing the cause of the disqualification then the previous order by the court will not create any hindrance in his appointment and holding the office.

i. Grounds where Quo Warranto can be issued

• The office in question is a public office.
• The person is holding the position unlawfully.

If in a writ of Quo warranto the person is declared not eligible to hold the post there cannot be an order to recover the amount for which he has rendered service. [i]

'Conclusion'

After discussing all these Writs we can conclude that as a method of constitutional remedies, all the writs are equally important. These are the only ways through which if a person's Fundamental right is violated they can directly approach the Apex Court and High Courts of the country to get a quick remedy for their problem.

References[]

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[i] < ref > Dr. J N Pandey, Constitutional Law of India, 690-699 (60thedition, 2023) < / ref>