WRITS

Constitutional law

Assignment submitted
To
Sir Nasir Majeed
By
Abdul Ghaffar
Roll #
LLM Semester 2nd
School of Law, UOG

Contents

1.
2.
3.
4.

Introduction
Meaning of Writ
Essential Elements of Writs
Writs Provided in the Constitution
a. WRIT OF MANDAMUS
b. WRIT OF PROHIBITION
c. WRIT OF CERTIORARI
d. WRIT OF HABEAS CORPUS
e. WRIT OF QUO WARRANTO
5. Restrictions
6. Conclusion

Introduction
Constitutional interpretations by Courts have played an important role in settling political
problems as well as other issues involving individuals and parties. These interpretations have
also restricted or expanded the scope of action of different functionaries of the Government and
enabled individuals and groups to enjoy constitutional and legal protection. In all matters,
aggrieved person can avail the statutory remedy of Appeal or Revision, which is not sometimes
adequate, effective, efficacious, convenient, beneficiary and expeditious. In such situations the
aggrieved party can avail the extra ordinary remedy by invoking constitutional jurisdiction of the
High Court or Supreme Court, which is obviously speedy and effective remedy and foster the
justice. These conditions occasionally overlap or conflict with each other.

Meaning of Writ
A written judicial order to perform an indicated act, or offering power to have it done.
A writ petition is an order given by a higher court to a lower government official or lower court in
an effort to preserve the rights of a country. These rights may be individual rights or they may
ensure that the governmental system is running appropriately. There are many different writ
petitions, many of which deal with prisoners and arrests.

Essential Elements of Writs

It is necessary to issue the writ when:

The court has complete satisfaction that a legal right has violated.
No other adequate and speedy remedy is available
The petitioner has locus Standi to invoke the jurisdiction of the court.
Petitioners came to the court with clean hands.
Court has the territorial jurisdiction.

Writs Provided in the Constitution

Under article 199 of the constitution the high court may make the following writs or order:

WRIT OF MANDAMUS
WRIT OF PROHIBITION
WRIT OF CERTIORARI
WRIT OF HABEAS CORPUS
WRIT OF QUO WARRANTO

WRIT OF MANDAMUS
This writ is given to a lower-level court or a government officer to mandate that proper laws are
followed. Mandamus might be given if an official is not using his position appropriately or if a
court is not following the laws of the state or country. This writ (also called the writ of mandate)
ensures that the government and the individuals in charge are performing their functions
properly.

Historical Background
Mandamus is a common law writ of extra ordinary character, sometimes referred to as the
highest judicial writ known to the law. It is also called one of the flowers of the crown. It seems
originally to have been one of that large class of writ or mandate by which the sovereign of
England guided, the execution of any wanted demonstration by his subjects
Purpose
It is issued for the purposed that justice may be done in all cases where there is a specific legal
right and no specific legal remedy is available for enforcing such rights. It may also issue in
cases where although there is an alternative lawful cure, yet such mode of review is less
advantageous, gainful and powerful.
Conditions for the Writ of Mandamus
There are some conditions for the writ of mandamus:

There must be a public duty.

There must be a specific demand and refusal.
There must be clear right to enforce the duty.

Who May Apply?

An aggrieved person may apply for the writ or order of mandamus.
Against Whom It May Be Issued?
Writ of mandamus may be issued against a person performing functions in connection with the
affairs of federation or province or a province or a local authority to do any thin which he is
required by law to do.

WRIT OF PROHIBITION
The writ of prohibition is given to a lower court by a higher court to stop it from taking up a case.
Typically this is done when the case is outside the jurisdiction of the lower court and the higher
court feels that no further action should be taken on it. The higher court may take over the case
after this writ has been given.
Object of Writ Of Prohibition
Following are the object of the writ of prohibition:

To prohibit any public functionary from doing an act which is beyond its jurisdiction.
To restrain authorities from exercising extra jurisdictional powers.

Who May Apply For Writ Of Prohibition?

Only an aggrieved person may apply for the writ of prohibition. Traditional view of Locus Standi
is applicable on the writ of prohibition.
Grounds on Which a Prohibition May Be Issued
Following are the grounds on which a prohibition may be issued:-

Want of jurisdiction: The writ of prohibition lies only when it is intended to restrain a
tribunal or a court which assumes or threatens to assume a jurisdiction which it does not
possess.
Violation of principles of natural justice: A prohibition may issue when it is found that the
action was in violation of principles of natural justice.
Limits of Prohibition: There are some limits of prohibition:- unlawful jurisdiction Pending
proceedings. Proceeding party without jurisdiction.

Exceptions
This writ cannot be issued against legislative body, political leaders and parties and private
organization etc.

WRIT OF CERTIORARI
Following are the important point regarding writ of prohibition:Meaning of Certiorari
When a lower court has made a decision that a higher court deems incorrect or inappropriate,
this writ will often be used. The writ of certiorari allows a higher court to review the materials
from the decision of a lower court with the option of reversing the decision. This can also be
used in a workplace to make sure that a punishment levied by an employer against an
employee is appropriate.
Nature and Scope
It is an order issued by the Supreme Court or by a high court under the constitution to an inferior
court or any authority exercising judicial or quasi-judicial functions to transmit to the court the
record of proceeding pending therein for scrutiny and decided the legality and validity of the
orders passed by them.
Object
The object of this writ is to keep all subordinate court/tribunal, quasi-judicial authorities within
the limit of jurisdiction if they excess then their decision would be quashed by superior court by
issuing this writ.
Who May Apply For Writ Of Certiorari?
An aggrieved person can apply for the writ of certiorari. It means that Traditional view of Locus
Standi is applicable on the writ of prohibition.
Against Whom Certiorari Is Issued?
The writ of certiorari is issued against:

Court.
Judicial body.
Quasi-judicial body.
Purely executive or administrative tribunal.

Grounds for the Issues of Writ of Certiorari

The grounds on which a writ of certiorari may be issued usually are as under:

Where the inferior court or tribunal acts without or in excess of the jurisdiction granted.
Where the order of the inferior court or a tribunal is erroneous on the face of the record.
Where the order of the inferior court is tainted with fraud, mala fide, corruption or
collusion.
Where the inferior court or tribunal has erroneously decided a collateral question or
assuming jurisdiction which is does not possess.
Where a procedure is followed which is contrary to the principles of natural justice.

WRIT OF HABEAS CORPUS

Habeas corpus (produce the body in Latin) is a writ given to an institution or a prison warden
to release an imprisoned person from custody. This keeps a government from imprisoning
people unlawfully. This is sometimes given when the preservation of life is in danger due to
improper jail conditions or other violations.
Nature and Scope
This is the writ in the nature of an order calling upon the person who has detained another to
produce the latter before the court, in order to let the court know on what judicial grounds he has
been confined and to set him free if there is no legal justification for the imprisonment.
Objects
The object of this writ is to provide a prompt remedy against illegal confinement. The object of
the writ of habeas corpus is to release a person from illegal detention.
Who May Apply?
Modern view of the locus Standi is applicable on the writ of habeas corpus. Any person may
apply for writ of habeas corpus against the detention of another provided he is bona fide
interested in the detenu.
Against Whom It May Be Issued?
This writ of habeas corpus may be issued against any person whether private or natural person.
Conditions
There are some conditions on the writ of habeas corpus:

There must be detention.

Detention must be actual and illegal.
Confinement should be in improper and unauthorized place.

Exceptions
Preventive detention law and article 10 of constitution are the exception to this writ. Another
thing is Res-Judicata. This principle is not applicable in writ of habeas corpus since the liberty of

person is very much important than anything else. For even former application has been
dismissed on other ground fresh application may be filed on any fresh ground.

WRIT OF QUO WARRANTO

A writ of Quo warranto is a writ issued by a superior court against a person who claims or who
usurp any office, franchise or liberty to enquire by what authority he supports his claim.
If a person claims that he has the power of a public office without any legality behind it, he is
issued a quo warranto. After the writ has been given, the person must show by what authority
he has asserted his claim.
Nature and Scope
Quo warranto is a judicial remedy against an occupier or usurper of an independent substantive
public office or establishment or freedom, the usurper is asked by what power quo warranto he
is in such office, franchise or liberty. If the answer is not satisfactory to the court, the usurper can
be ousted by an order of quo warranto.
Who May Apply?
Modern view of the locus Standi is applicable on the writ of habeas corpus. Any person may
apply for writ of quo warranto.
Office In Respect Of Which Writ Is Issued?
It is a public office, in respect of which order or writ of quo warranto is issued, for example, the
office of speaker of national or provincial assembly. The office of advocate general of a
province.
Conditions
There are some conditions on the writ of quo warranto:

That office must be created by statute, by charter, or by constitution.

The office must be public nature.
The office must be some substantive character.
The holder must have been in actual occupation and under of the office in question.

Relief in Writ of Quo Warranto

Relief must be given by issuance of injunction to a person not to act therein. To declare the
office vacant.

Restrictions
Article 199 provides very wide scope regarding the jurisdiction of high court, therefore, it also
impose some restrictions on high court in the exercise of jurisdiction.
Exclusion of Armed Forces
High Court shall not pass an order on the application made by a person or in relation to a
person

Who is a member of the Armed Forces of Pakistan.

Who is for the time being subject to any law relating to any of those Forces.

In respect of

His terms and conditions of service.

Any matter arising out of his service.
Any action taken in relation to him
o As a member of the Armed Forces of Pakistan.
o As a person subject to such law.

Order against Public interest

When a writ petition is filed in the High Court by an aggrieved party seeking an order and the
court thinks that the interim order would have the effect of prejudicing or interfering

With the carrying out of a public work

Being harmful to the public interest
Being harmful to the State property
Of Impeding the assessment
Collection of public revenues

The court shall not pass an interim order.

Time Limit
When an interim order on a matter is passed by the High Court, the High Court is bound to
decide the matter within six months, otherwise the interim order shall cease to have effect.

Conclusion
Writ jurisdiction of high court under article 199 is available only when no other adequate remedy
is available. The high court can issue writs on mandamus, prohibition and certiorari on the
application of the aggrieved person and it can also issue writ of habeas corpus and writ on the
application of interested party. In case of public interest the Supreme Court also has the some
power under article 199. The constitution also provides a few exception and restrictions in the
exercise of jurisdiction by High Court for make it run smoother.