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Article 32 and 226, Importance of Judicial Writs in Indian Judicial System

The Constitution of India empowers the Supreme Court to issue writ petitions. The Supreme Court issues a writ to enforce any fundamental right under Article 32 of the Indian Constitution but under Article 226 the High Court has wide jurisdiction to issue a writ for violation of legal as well as fundamental rights.

In India, the legal capacity to issue a writ petition is first a provision, ie the right to constitutional treatment to every citizen. This right serves as a guarantor for all other fundamental rights in the Indian Constitution.

What Is a Writ?

The term writ refers to a formal, legal document that mandates a person or institution to perform or stop performing a specific action or deed. Rights with administrative or judicial jurisdiction are drafted by judges, courts, or other institutions.

These documents are part of the common law and are often issued after a verdict, giving those involved in a suit the ability to make decisions. Summons can take many forms, including the execution of the writ, writ of habeas corpus, warrant, and order.

How do Writs Work?

A document or order directing any form of action from the court is commonly known as writ. Rights provide instructions from an entity that holds the jurisdiction or administrative power of another party.

The writs were developed as part of the English common law system and were mainly performed by Anglo-Saxon kings. These were written decrees, including administrative orders, which were attested by a royal seal at the bottom of the document.

Upon issuance, the writs advised the courts of land-grants. In some cases, they were also used to carry out judicial orders. While many writings were deemed publicly open and read, others simply meant the name of the party or parties.

The Writ was developed over time for officers to direct others to perform specific tasks, both legal and otherwise. This means that a modern-day writ provides an order from a higher lower court, from a court to an individual or other institution, or from a government agency to another party.

The writ may order the designated party to take some form of action or it may prevent that party from acting or operating in a certain way.

The present courts also use the writ to grant extraordinary relief or to confer the right of the court to appeal. In other cases, they give authority to make confiscation of property.

Writ of Mandamus

Latin (Mandamus: “we order”)

This complex-sounding legal term refers to a somewhat uncommonly used legal maneuver in which a judge, usually at the level of the appellate court, issues a written order for an individual or institution to Perform their duty according to public duty or law.

Such an issue could arise if a public official acted with a specific duty, such as a county clerk tasked with issuing a marriage license, refusing to perform his duty. The unjust person can file a civil lawsuit, ordering the government official from the court to perform its duty.

The writ of Mandamus is not often used, as courts prefer to make their way through the legal system. In some circumstances, however, the need to act quickly outpaces the desire to roll the system with its regular speed.

Types of Mandamus

Depending on the circumstances of the case, any court may order three types of Mandamus. These include:

An Alternative Mandamus – Often an order is issued when an application is made for the writ of mandamus. The optional mandamus allows the defendant either to seek action or to appear before the court to give him a good reason not to perform.

⦁ Primapore Mandamus – A clear order to the defendant to act under consideration, in which no choice or option is given. The Primapore mandamus is issued when the defendant fails to execute both acts and appears in court by order in the alternate mandamus.

Less continuous mandamus – an order issued to a lesser government official, or a lesser official, to prevent the abortion of justice, to perform his duty immediately for an unspecified period.

Purpose of Mandamus

The purpose of the mandamus is to provide a speedy resolution of the flaw of justice. It is applied to situations in which a person has a specific right, but no legal remedy has been provided to enforce that right.

A writ of mandamus, also known as a “mandate”, does not address the possibility of injury or harm due to the failure of a government official or institution but provides an immediate legal remedy in the form of a direct order on its own. For officer or institution to perform duty.

In this way, a writ of mandamus is an “equitable remedy”, left to the discretion of the court.

Also Read: What is free legal aid service, Process and Importance in India: Legal Analysis

Instances where mandamus will not be issued

In the following situations, the Mandamus may not be issued:

It cannot be enforced to enforce contractual rights and obligations.

Private institutions receiving grants are not public, thus no duty is deferred by law and thus no mandu lies.

It does not lie against a private arbitrator instructing him to file an award.

An order of the Governor, in which the death penalty was confirmed by the High Court, cannot be interfered with by the mandamus.

The granting of a license by an authority (with such power duly vested under the law) cannot be interfered with by the issuance of mandamus.

In recent times, judicial activism about this writ has given rise to new terms like mandamus, advance mandamus, and certified illegal mandamus. The activism undertaken by the courts in this regard comes down to inaction on the part of the state machinery, which often does not suffer from indifference.

This writ ensures that power or duties are not misused by the executive or administration and duly fulfilled. It protects the public from misuse of authority by administrative bodies.

A person requesting a writ of mandamus must be able to show the court that he has the legal authority to take a specified action, or to refrain from doing a specified act, to a government agency or public servant. This duty should be a duty of public nature, and it should be important rather than discretionary. It is unlikely that the court will issue a writ of mandamus if relief can be obtained through other means available to the petitioner, such as an appeal.

Supreme Court of India on Mandamus

In the case of Union of India v. S.B. Vohraxi, The Supreme Court of India is as follows:

“A writ of mandamus may be issued in favor of a person who establishes a legal right in itself. It can be issued against a person who has a legal duty to perform but has failed or neglected to do so. Such a legal duty derives from the operation of law. The writ of the mandamus is most comprehensive about its curative nature. The purpose of the mandamus is to prevent the disorder created by the failure of justice and to be given in all cases where the law has not established any specific remedy.

Writ of Habeas Corpus

The writ of habeas corpus is the legal procedure that acts as a remedial measure for the person who is illegally detained. The term habeas corpus is the Latin word that means to bring or present the body before the court.

It is the most important right available to the person detained unlawfully. The basic purpose for which this writ is used is to release a person from unlawful detention or imprisonment. This writ is of great importance as it determines a person his right to freedom and personal liberty.

For Example:

A has been taken into custody by B a police officer without a warrant. All the efforts made by A’s family to know the whereabouts of A turned out to be futile. As he was detained wrongfully by B (police officer), the writ of habeas corpus can be filed in court by A’s family on his behalf.

Who can apply for Habeas Corpus

To answer this question the courts have made this clear in various cases that the person who may apply for the writ of habeas corpus should be

The person is confined or detained illegally.

The person who is aware of the benefit of the case.

The person who is familiar with the facts and circumstances of the case and willingly files an application of the writ of habeas corpus under articles 32 and 226 of the Indian constitution.

When the right of habeas corpus is denied

The following conditions when the writ of habeas corpus is refused are as follows:

When the court doesn’t have territorial jurisdiction over the detainer.

When the detention of a person is connected with the order of the court.

When the person detained is already set free.

When the confinement has been legitimized by the removal of the defects.

The writ of habeas corpus will not be available during an emergency.

When the competent court dismisses the petition on the grounds of merits.

Burden of Proof

The burden of proof is on the person or authority to satisfy the court as to whether the person has been detained on legal grounds. And if Detenu alleges that the imprisonment was malicious and detained when a person outside the jurisdiction of the law was kept from the burden of proof.

Writing of habeas corpus during The emergency proclamation

The writ of habeas corpus is upheld during an emergency proclamation, as it was stated after the 44th amendment in 1978 that fundamental rights under Articles 20 and 21 cannot be suspended. And for the enforcement of these rights, the writ petition can be filed in court.

Case law 

Nilabati Behera v. The State of Orissa

In the instant case, the Orissa Police had taken the petitioner’s son for questioning. All attempts to trace him proved futile. Therefore a petition for habeas corpus was filed in the court. During the pendency of the petition, the body of the son of the petitioner was found on the railway track. The petitioner was compensated for Rs. 1,50,000.

A.K. Gopalan v. The State of Madras

In the instant case, the Preventive Detention Act was examined based on its constitutional validity. If a legislature prevents a person from his or her freedom then he/ she should be competent enough to enact such a law. If the support of the law is illegal, it is illegal to detect it. A person has the right to approach the court. A person can file an appeal in the Supreme Court against an order of the High Court or in case of refusal for writ of habeas corpus.

Writ of Prohibition

The Writ of Prohibition is a writ issued by the Supreme Court or an inferior court by the High Court which forbids the latter to continue proceedings beyond his jurisdiction or to initiate a jurisdiction with which he is legally not rooted.

The writ of prohibition differs from the writ of Mandamus in the sense that when mandamus regulates activity, the prohibition command indicates inaction. Furthermore, while the mandamus is available not only against judicial officers but also against administrative officers, prohibition is also issued against judicial or quasi-judicial officers.

Who can apply for the Writ of Prohibition?

 A person whose right has been violated can apply for the Writ of Prohibition.

When is Writ of Prohibition not issued?

When the court acts within its legal jurisdiction.

When the Court adheres to the principles of natural justice.

When can a Writ of Prohibition be granted? 

  • When the lower court or quasi-judicial authority exceeds its jurisdiction.
  • When the lower court functions without valid jurisdiction.
  • When the lower court or quasi-judicial authority acts against the rule of natural justice.
  • When there is an apparent error on the face of the judicial record.

Case Law:

In East India Commercial Co. v Collector of Customs (1962, p.1893) the Court compelled the inferior court to keep itself within the limits of jurisdiction.

Writ of Certiorari

An inferior court is ordered by the Supreme Court or the High Courts to remove the suit from such an inferior court and adjudicate the validity of the proceedings or revoke the orders of the lower court. The Certificate of Retirement can be issued not only against any inferior courts but also against bodies performing judicial or quasi-judicial functions. This writ is issued under supervisory or original jurisdiction and not under appellate jurisdiction.

Conditions: These include the followings

There should be a desire or excess of jurisdiction.

Principles of natural justice should be violated

There should be an error or law on the face of the judicial record

When can the writ of certiorari be filed or granted?

To prevent an additional or misuse of jurisdiction before trial and to remove the trial to the High Court.

Following the trial to rescind an order that is without jurisdiction or in violation of the principles of natural justice.

In other words, whenever anybody of the individual has legal rights that affect the rights of the subject and determines the duty to act judicially, acts more than their legal authority, the Writ Of certiorari can be given.

Who can apply for a certiorari writ?

Any person whose fundamental right is violated can apply for a writ of certiorari.

Against whom is the writ of certiorari issued?

  • Inferior courts, and
  • A body practicing judicial or quasi-judicial functions.

Against whom can no writ of certiorari be issued?

Against a private person or body of private individuals (A. Ranga Reddy v General Manager; Co-op Electric Supply Society Ltd, 1977, p.232).

When the writ of certiorari cannot be granted?

  • To remove ministerial acts.
  • To remove or cancel executive acts.
  • Declaring an act as unconstitutional or void.

Case laws:

In the case of Rafiq Khan v. State of UP (1954, p.3), the magistrate upheld the conviction of the accused passed by a panchayat court, which is authorized under section 85 of the Uttar Pradesh Panchayat Raj Act, 1947. Hence, the High Court quashed the conviction by a writ of certiorari. 

In G Nageswara Rao vA.l?S.R.ir: C (1959,p.308), the Secretary, APSRTC invited objections for the Nationalization of motor transport in the State. The petitioner running the transport business lodged his objections, but the secretary ignored them. Furthermore, the secretaries themselves were assistant officers and thus violated the principles of natural justice. Therefore, the Supreme Court issued the Writ of certiorari against the Secretary.

Writ of Quo Warranto

Quo warranto means ‘what is your right?’ It is an order which questions the right of a person to hold public office. It is issued against the holder of a public office who summons him with what authority he shows such office. The purpose of this writ is to regulate executive action to make appointments in public offices as well as to protect the public from ushers of public offices.

Conditions: These include the following.

The office must be a public office.

The office must be substantive with  The independent title.

The respondent must not be legally qualified to hold  Public office.

The respondent must have held the office against the law.

Who can file a writ of Quo Warranto?

Any member of the public can file a writ of Quo Warranto, whether or not any right of such person has been violated (Venkataraya v Sivarama,1965, p. 491).

When the writ of Quo Warranto is not issued?

  • When the office is Private.
  • When the holder of the office is eligible to hold that office.
  • When the holder subsequently becomes eligible for office.
  • When the issue of writ becomes redundant. This means if the writ does not serve any purpose.

Case Laws:

In Jamalpur Arya Samaj Sabha vs. Drs. D. In Rama (1954, p.279), A member of the working committee of Bihar Arya Samaj Sabha held office for more than the prescribed tenure. The High Court refused to issue the writ of Kio Warranto because it was a private association.

In K. Bhim Raju v. State of Andhra Pradesh (1981, p.24), a government lawyer was appointed against the rules. Petitioner filed a Writ of quo warranto. The High Court quashed the appointment of a government lawyer on the ground that the appointment was not made as per the rules.

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