5 Types Of Writs In India

The phrase "to have the body of" is one of the most important writs for personal liberty. The primary goal of this writ is to obtain relief from an individual's unlawful detention. Its purpose is to protect the individual from being harmed by the administrative system, as well as to protect the individual's freedom from arbitrary state action that violates fundamental rights protected by Articles 19, 21, and 22 of the Constitution. In the event of unlawful detention, this writ provides immediate relief.

A Writ of Habeas Corpus is issued when a person is detained or held in private custody without legal authority. If a convicted criminal believes he has been wrongfully imprisoned and the conditions in which he has been held fall below minimum legal standards for human treatment, he has the right to seek the assistance of the court by filing an application for "writ of Habeas Corpus." The court issues an order compelling a prison warden who is holding a person in custody to surrender that person to the court so that a judge can determine whether the person is lawfully imprisoned and, if not, whether he should be released. As a result, this writ protects individual liberty from arbitrary detention.

 

Both public authorities and private individuals can be served with a writ of habeas corpus. The writ is not issued if (a) the detention is legal, (b) the proceeding is for contempt of a legislature or a court, (c) the detention is by a competent court, and (d) the detention is outside the court's jurisdiction.

 

The first Habeas Corpus case in India was filed by the victim's father in Kerala, after the victim, P. Rajan, a college student, was arrested by the Kerala police and died in custody after being unable to bear the torture. So his father, Mr. T.V. EacharaWarrier, filed a Habeas Corpus writ, and it was established that he died in police custody.

 

Then, in ADM Jabalpur v. Shivakant Shukla, also known as the Habeas Corpus case, it was decided that the writ of Habeas Corpus could not be suspended even during an emergency (Article 359).

 

In Narayan v. Ish-warlal, the court held that when deciding whether Habeas Corpus writs are civil or criminal in nature, the court would look at how the location's procedures were carried out.

 

It literally translates to "we command." It is a court order for a public official to perform his or her official duties, which he or she has failed or refused to do. For the same reason, it can be issued against any public body, corporation, inferior court, tribunal, or government.

 

The writ of mandamus cannot be issued (a) against a private individual or body; (b) to enforce a departmental instruction that lacks statutory force; (c) when the duty is discretionary and not mandatory; (d) to enforce a contractual obligation; (e) against the president of India or state governors; or (f) against the chief justice of a high court acting in judicial capacity.

 

Mandamus can only be issued if the following conditions are met.

1. The applicant's legal right to perform the legal duty must be established.

 

2. The duty must be of a public nature.

 

3. The right sought to be enforced must exist at the time the petition is filed.

 

4. A writ of Mandamus is not issued in the event of an impending injury.

 

Courts are hesitant to issue writs of mandamus against high-ranking officials such as the President and Governors. Judges in the case of S.P. Gupta v. Union of India held that a writ against the President of India for determining the number of judges in the High Courts and filling vacancies could not be issued. The Supreme Court, however, ruled in Advocateson Records Association v. Gujarat that the judges' issue is a justiciable issue for which appropriate measures can be taken, including the issuance of mandamus. However, in C.G. Govindan v. State of Gujarat, the court refused to issue a writ of mandamus against the governor for failing to approve the Chief Justice of High Court's fixation of court staff salaries under Article 229. As a result, it is argued that the Governor or President refers to the state or the Union, and that mandamus cannot be issued.

 

 

It literally means 'to prohibit.' It is given to a lower court or tribunal by a higher court to prevent the latter from exceeding its jurisdiction or usurping jurisdiction that it does not have. In contrast to mandamus, which directs action, the prohibition directs inaction.

 

Its main purpose is to prevent a lower court from exceeding its jurisdiction or acting in a way that is inconsistent with Natural Justice rules.

 

The superior courts issue it to a lower or subordinate court to prevent it from doing something that it is not allowed to do under the law. It's usually issued when lower courts act outside of their authority. It can also be issued if the court acts outside of its legal authority. The lower court is also required to halt its proceedings once the writ is issued. It should be issued before an order is issued by the lower court.

 

Prohibition is a preventative measure. 'Prevention is better than cure,' says the principle. Only judicial and quasi-judicial authorities are subject to the writ of prohibition. Administrative authorities, legislative bodies, and private individuals or bodies are not covered.

 

It literally translates to 'to be certified' or 'to be informed.' It is issued by a higher court to a lower court or tribunal to either transfer a case that is pending with the latter to itself or to overturn the latter's order in a case. It is issued due to an overabundance of jurisdiction, a lack of jurisdiction, or a legal error. As a result, unlike prohibition, which is only a preventative measure, certiorari is both preventative and curative.

 

If quasi-judicial or subordinate courts act in the following ways, they will be issued with it:

 

• Either without jurisdiction or excessively so.

• It is a violation of Natural Justice principles.

• This is in violation of the law's procedure.

• If there appears to be a blunder in judgement.

 

After the order is passed, a writ of certiorari is issued.

 

Previously, writs of certiorari could only be issued against judicial and quasi-judicial authorities, not administrative agencies. However, the Supreme Court ruled in 1991 that certiorari can be issued against administrative authorities that affect individual rights. Ceriorarii is not available against legislative bodies or private individuals or bodies, as it is against prohibition.

 

Certiorari is used to challenge an authority that is acting within its authority but has violated natural justice principles. There are several rules that make up Natural Justice. They're —

 

1. The authority must give the party who is likely to be affected reasonable notice of the case or allegation against him.

 

2. A reasonable opportunity for such a party to be heard must be provided. What is reasonable will be determined by the facts of the case. In general, the affected party must be given a full opportunity to present the evidence on which it relies. The other party's evidence must be recorded in its presence. No evidence should be obtained behind the backs of any of the parties involved. Any party should not be denied access to documents. Cross-examination of the opposing party's witnesses must be allowed.

 

3. The authority must make a decision based on the evidence presented to it and on the merits of the case. It is against natural justice principles to make decisions based on the orders of a superior officer or in accordance with a predetermined policy.

 

4. The person who hears must decide the case.

 

5. No one has the right to be a judge in his or her own case.

 

The two writs, Prohibition and Certiorari, have some similarities. They are brought against judicial or quasi-judicial officials. They are intended to keep authorities within the scope of their authority. The reasons for their issuance are similar. However, the scope of these two writs differs significantly. They are issued at various stages of the legal process. If an inferior court with no jurisdiction over the matter hears the case, the aggrieved party can file a Prohibition petition. If such a court hears the case and makes a decision, the proper remedy is Certiorari, which overturns the decision for lack of jurisdiction. Prohibition applies when a matter is pending and something needs to be avoided. Because the case has been decided, the proper remedy is Certiorari.

 

It literally translates to 'by what authority or warrant.' The court issues it to investigate the legality of a person's claim to a public office. As a result, it prevents a person from illegally usurping public office. Only in the case of a substantive public office with a permanent character created by statute or the Constitution can the writ be issued. In the case of ministerial or private office, it cannot be issued. Unlike the other four writs, this one can be sought by anyone who is interested, not just the aggrieved party.

 

The court issues the Writ of Quo Warranto in the following cases:

• When a public office is at stake and the issue is of a serious nature. It is not possible to file a petition against a private corporation.

 

• The State or the Constitution established the office.

 

• The public servant, i.e. respondent, should assert the claim against the office.

 

The writ of quo warranto is an ancient common law procedure. An application for the issuance of a writ of quo warranto may be filed only in the case of public offices created by statute, not against private institutions.