Writs

By Vineet Kaushal

Thewrit of prohibitionis issued by a higher court to a lower court prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. Thus, the higher court transfers the case to itself. Thewrit of habeas corpusis issued to a detaining authority, ordering the detainer to produce the detained person in the issuing court, along with the cause of his or her detention. If the detention is found to be illegal, the court issues an order to set the person free. Thewrit of certiorariis issued to a lower court directing that the record of a case be sent up for review, together with all supporting files, evidence and documents, usually with the intention of overruling the judgement of the lower court. It is one of the mechanisms by which the fundamental rightsof the citizens are upheld. Thewrit of mandamusis issued to a subordinate court, an officer of government, or a corporation or other institution commanding the performance of certain acts or duties. Thewrit of quo warrantois issued against a person who claims or usurps a public office. Through this writ the court inquires 'by what authority' the person supports his or her claim.

Writ Jurisdiction: Art. 32and Art.22

Habeas Corpus Mandamus Prohibition Certiorari Quo Warranto
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(I) Writ of Habeas Corpus:

It is the most valuable writ for personal liberty. Habeas Corpus means, "Let us have the body." A person, when arrested, can move the Court for the issue of Habeas Corpus. It is an order by a Court to the detaining authority to produce the arrested person before it so that it may examine whether the person has been detained lawfully or otherwise. If the Court is convinced that the person is illegally detained, it can issue orders for his release

Habeas Corpus
To have a body Object: To set free a person illegally detained Producing Body in Court Necessary? Petition by friend/Relative also. Locus Standi liberalised Writ addressed to:
Government An Official Private Person

For disobedience : Contempt of Court P. Rajan

Cases
InKanu Sanyal v. District Magistrate, while enunciating the real scope of writ of habeas corpus, the Supreme Court opined that while dealing with a petition for writ of habeas corpus,the court may examine the legality of the detention without requiring the person detained to be produced before it.(AIR 1973 SC 2684). InSheela Barse v. State of Maharashtra, while relaxing the traditional doctrine of locus standi, the apex court held thatif the detained person is unable to pray for the writ of habeas corpus, someone else may pray for such writ on his behalf.(AIR 1983 SC 378) InNilabati Behera v. State of Orissa, the Orissa police took away the son of the petitioner for the purposes of interrogation & he could not be traced. During the pendency of the petition, his dead body was found on railway track Thepetitioner was awarded compensation of Rs. 1, 50, 000. (IR 1993 SC 1960) InMalkiat Singh v. State of U.P, the son of a person was allegedly kept in illegal custody by the police officers. It was established that the son was killed in an encounter with the police. The court awarded Rs. 5,00,000 as compensation to the petitioner.(AIR 1999 SC 1522)

In A.D.M Jabalpur vs. ,Shivakant Shukla (1976) 2 SCC 521 AIR 1976 SC 1207 - This case is popularly known as Habeas Corpus Case. On 25th June, emergency was proclaimed under Article 359. Large number of persons was arrested under N11SA (Maintenance of Internal Security Act. 1971) without informing the grounds for arrest. Some of there filed petition in various high Courts for writ of Heabeas Corpus. The petitioners contend that their detention is violation of Article 21. It was argued on the other side that the protection uinder Article 21 is not available (suspended) during emergency. The preliminary objection (not to file writ petitions during emergency). The Preliminary objection (not to file writ petitions during emergeyc was rejected by various High Courts. The Madhya Pradesh Government through Additional District Magistrate. Jabalpur and Government of India filed appeals before Supreme Court. The question before Supreme Court was, whether there was any rule of law in India apart front Article 21 of the Constitution. The Supreme Court by majority held that there is no rule of law other than the constitutional rule of law. Article 21 is our rule of law. If it is suspended, there is not rule of law. P Rajans case.

(II) The Writ of Mandamus:

Mandamus is a Latin word, which means "We Command". Mandamus is an order from a superior court to a lower court or tribunal or public authority to perform an act, which falls within its duty. It is issued to secure the performance of public duties and to enforce private rights withheld by the public authorities. Simply, it is a writ issued to a public official to do a thing which is a part of his official duty, but, which, he has failed to do, so far. This writ cannot be claimed as a matter of right. It is the discretionary power of a court to issue such writs.

There are three kinds of mandamus:

Alternative Mandamus: A mandamus issued upon the first application for relief, commanding the defendant either to perform the act demanded or to appear before the court at a specified time to show cause for not performing it. Peremptory Mandamus: An absolute and unqualified command to the defendant to do the act in question. It is issued when the defendant defaults on, or fails to show sufficient cause in answer to, an alternative mandamus. Continuing Mandamus: A Mandamus issued to a lower authority in general public interest asking the officer or the authority to perform its tasks expeditiously for an unstipulated period of time for preventing miscarriage of justice.

Mandamus
Mandamus = A Command Order to do something: demands some activity Command to perform Public duty Writ available against:
Government Public Servant Judicial Body

Writ not available against

President of India Governor Private Individual

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Cases
Mani Subrat v. State of Haryana (1977) 1 SCC 486- No one can ask for a mandamus without a legal, right. There must be a judicially enforceable as well as legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing it In CIT v. State of Madras AIR 1954 Mad. 54There was a threat of breach of contract on the part of the government. The petitioner sought a writ of mandamus, but the court refused, holding that the writ is only granted to compel the performance of a duty of a public nature.


State of M.P. v. G.C. Mandawa (AIR 1954 SC 493) - No mandamus will lie where the duty is of a discretionary nature. In Pragya Tools Corpn. V. C.A. Imanual (1969 1 SCC 585) A writ of mandamus does not issue to, or an order in the nature of mandamus is not made, against private persons Sohan lal v. Union of India, AIR 1957 SC 529

(III) The Writ of QuoWarranto:

The word Quo-Warranto literally means "by what warrants?" It is a writ issued with a view to restraining a person from acting in a public office to which he is not entitled. The Writ of quo-warranto is used to prevent illegal assumption of any public office or usurpation of any public office by anybody. For example, a person of 62 years has been appointed to fill a public office whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a Writ of quo-warranto against the person and declare the office vacant.

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Quo Warranto
Quo Warranto = What authority? Court inquires into legality of claim to Public Office Court ousts incumbent if claim not well founded Object: To prevent usurpation of Public Office (Constitutional or Statutory) When?
Disqualified for the post Procedure not followed Irregular appointment

Locus standi liberal

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(IV) The Writ of Prohibition:

Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This Writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. It is a Writ issued by a superior court to lower court or a tribunal forbidding it to perform an act outside its jurisdiction. After the issue of this Writ proceedings in the lower court etc. come to a stop. The Writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, prohibiting the latter to continue proceedings in a particular case, where it has no legal jurisdiction of trial. While the Writ of mandamus commands doing of particular thing, the Writ of prohibition is essentially addressed to a subordinate court commanding inactivity. Writ of prohibition is, thus, not available against a public officer not vested with judicial or quasi-judicial powers. The Supreme Court can issue this Writ only where a fundamental right is affected.

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Prohibition
Order to stay a judicial Proceeding When?
Excess of Jurisdiction No Jurisdiction

During pendency of proceeding (Prevention) To whom?

Judicial Authority Quasi-judicial Authority Public Servant having duty to act judicially

Not to Administrative Authority S. Govind Menon vs. union of India, AIR 1967 SC 1274

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(V) The Writ of Certiorari:

Literally, Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme Court to some inferior court or tribunal to transfer the matter to it or to some other superior authority for proper consideration. The Writ of Certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court. In other words, while the prohibition is available at the earlier stage, Certiorari is available on similar grounds at a later stage. It can also be said that the Writ of prohibition is available during the tendency of proceedings before a sub-ordinate court, Certiorari can be resorted to only after the order or decision has been announced. There are several conditions necessary for the issue of Writ of Certiorari, which are as under: (a) There should be court, tribunal or an officer having legal authority to determine the question of deciding fundamental rights with a duty to act judicially. (b) Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or law. The order could also be against the principle of natural justice or it could contain an error of judgment in appreciating the facts of the case. Judicial review

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Certiorari
To whom: Judicial or Quasi-Judicial Authority Object: To quash order or decision (Cure) When?
Court or Tribunal acts without jurisdiction Principles of Natural Justice not followed:
Bias: Personal, Pecuniary Audi Alteram Partem Speaking Order

Decision obtained by Fraud, Collusion, Corruption Error of Law apparent on the face of record

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