Writs under Indian Constitution
Have you ever thought what is the use of laws if there is no one to check their application?
Indian courts are established with a view to protect the rights and interests of the
citizens. Indian Judiciary is in the form of a pyramid having Supreme Court at the top. High
Courts and Subordinate courts are also there performing their assigned roles.
A mere declaration of fundamental rights in the constitution is meaningless and worthless without providing an effective machinery for their enforcement, if and when they are violated. Article 32 confers the right to remedies for the enforcement of fundamental rights.
It is the reason Dr. Ambedkar called Article 32 as the most important Article of the constitution. An article without which the constitution would be a nullity. It is called the " Heart and soul of the constitution " Article 32 contains the following four provisions :
- The right to move to the Supreme Court for the enforcement of fundamental rights.
- The Supreme Court have power to issue directions or orders or writs for the enforcement of any of the fundamental rights.
- Habeas Corpus,
- Certiorari and
- Parliament can empower any other court to issue directions, orders and writs of all kinds without prejudice to the above powers conferred on the Supreme Court.
- The right to move to the Supreme Court shall be suspended during national emergency under Article 359.
Can a person approach Supreme Court directly for enforcement of any right?
Only Fundamental Rights guaranteed by the Constitution can be enforced under Article 32.
Any other right such as non-fundamental constitutional rights, statutory rights, customary rights etc. can not be enforced under Article 32.
Concurrent jurisdiction of Supreme Court and High Courts:
The jurisdiction of Supreme Court is original but not exclusive. It is concurrent with
jurisdiction of high court under Article 226.
The availability of alternate remedy is no bar to relief under Article 32.
The writs are borrowed from English law known as 'prerogative writs'.
Which court is empowered to issue writs?
- The Supreme Court (under Article 32)
- The High Courts (under Article 226)
When can Supreme Court issue writs?
- For enforcement of fundamental rights.
- Supreme Court can issue writs against a person or government throughout the territory of India.
- Article 32 is itself a fundamental right and therefore Supreme Court may not refuse to exercise its writ jurisdiction.
When can High Courts issue writs?
Which writs can be issued?
- Habeas Corpus,
- Certiorari and
Habeas Corpus is a Latin term which means "to have the body of". It is an order issued by
the court to a person who has detained another person, to produce the body of the latter
The court then examines the cause and legality of detention.
Against whom writ of Habeas Corpus can be issued?
The writ of habeas corpus can be issued against both public authorities as well as private authorities.
The writ of habeas corpus is not issued where
- Detention is lawful
- The proceeding is for contempt of a legislature or a court
- Detention is by a competent court
- Detention is outside the jurisdiction of the court.
Mandamus means 'we command'. It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform.
Against whom writ of Mandamus can be issued?
It can be issued against any public body, a corporation and inferior court , a tribunal or government for the same purpose.
The writ of mandamus cannot be issued
- Against a private individual or body
- To enforce departmental instruction that does not possess statutory force
- When the duty is discretionary and not mandatory
- To enforce a contractual obligation
- Against the President of India or the State Governor
- Against the chief justice of a High Court acting in judicial capacity.
Prohibition means 'to forbid'. It is issued by a higher court to a lower court or
tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction
that it does not possess.
Unlike mandamus directs activity, the prohibition directs inactivity.
Against whom writ of Prohibition can be issued?
The writ of Prohibition can be issued only against judicial and quasi judicial authorities.
It is not available against administrative authorities, legislative bodies and private individuals or bodies.
Certiorari means 'to be certified' or 'to be informed'.
It is issued by a higher court to a lower court or Tribunal either to transfer a case pending with the letter to itself or to squash the order of the letter in a case.
It is issued on the grounds of
1. excess of Jurisdiction or
2. lack of Jurisdiction or
3. error of law.
Certiorari is both preventive as well as curative.
Against whom writ of Certiorari can be issued?
The writ of Certiorari can be issued only against judicial and quasi judicial authorities, administrative authorities.
It is not available against legislative bodies and private individuals or bodies.
Quo-Warranto means 'by what authority or warrant'. It is issued by the court to enquire into the legality of claim of a person to a public office. It prevents illegal usurpation of public office by a person.
Against whom writ of Quo-Warranto can be issued?
The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution.
It cannot be issued in case of ministerial office or private office.
Unlike other four writs, this remedy can be sought by any interested person and not necessarily by the aggrieved person.
Right to Privacy.
Right to privacy is a fundamental right inherent under Article 21 of Indian Constitution i.e. Right to life and personal liberty. It is a recognized human right under Article 12 of Universal Declaration of Human Rights,1948. Indian Supreme court recognised this right as fundamental right in the case of Puttaswamy v. Union of India, 2017.