Types of Writs in India (Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo warranto)
Writs - Provisions in Indian Constitution
The Indian Constitution empowers the Supreme Court to issue writs for enforcement of any of the fundamental rights conferred by Part III of Indian Constitution under Article 32. Thus the power to issue writs is primarily a provision made to make available the Right to Constitutional Remedies to every citizen. The Right to Constitutional Remedies, as we know, is a guarantor of all other fundamental rights available to the people of India.
In addition to the above, the Constitution also provides for the Parliament to confer on the Supreme Court power to issue writs, for purposes other than those mentioned above.
Similary High Courts in India are also empowered to issue writs for the enforcement of any of the rights conferred by Part III and for any other purpose.
Types of Writs
There are five types of Writs - Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo warranto.
1. Habeas Corpus
"Habeas Corpus" is a Latin term which literally means "you may have the body." The writ is issued to produce a person who has been detained , whether in prison or in private custody, before a court and to release him if such detention is found illegal.
Mandamus is a Latin word, which means "We Command". Mandamus is an order from the Supreme Court or High Court to a lower court or tribunal or public authority to perform a public or statutory duty. This writ of command is issued by the Supreme Court or High court when any government, court, corporation or any public authority has to do a public duty but fails to do so.
Literally, Certiorari means to be certified. 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, tribunal or quasi judicial authority.
There are several conditions necessary for the issue of writ of certiorari .
- There should be court, tribunal or an officer having legal authority to determine the question with a duty to act judicially.
- 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 officer.
- The order could also be against the principles of natural justice or the order could contain an error of judgment in appreciating the facts of the case.
The 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. The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, or quasi judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to try. After the issue of this writ, proceedings in the lower court etc. come to a stop.
Difference between Prohibition and Certiorari:
- While the writ of prohibition is available during the pendency of proceedings, the writ of certiorari can be resorted to only after the order or decision has been announced.
- Both the writs are issued against legal bodies.
5. The Writ of Quo-Warranto
The word Quo-Warranto literally means "by what warrants?" or "what is your authority"? It is a writ issued with a view to restrain a person from holding a public office to which he is not entitled. The writ requires the concerned person to explain to the Court by what authority he holds the office. If a person has usurped a public office, the Court may direct him not to carry out any activities in the office or may announce the office to be vacant. Thus High Court may issue a writ of quo-warranto if a person holds an office beyond his retirement age.
Conditions for issue of Quo-Warranto
- The office must be public and it must be created by a statue or by the constitution itself.
- The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.
- There must have been a contravention of the constitution or a statute or statutory instrument, in appointing such person to that office.
Writs in brief
|Type of Writ||Meaning of the word||Purpose of issue|
|Habeas Corpus||You may have the body||To release a person who has been detained unlawfully whether in prison or in private custody.|
|Mandamus||We Command||To secure the performance of public duties by lower court, tribunal or public authority.|
|Certiorari||To be certified||To quash the order already passed by an inferior court, tribunal or quasi judicial authority.|
|Prohibition||-||To prohibit an inferior court from continuing the proceedings in a particular case where it has no jurisdiction to try.|
|Quo Warranto||What is your authority?||To restrain a person from holding a public office which he is not entitled.|
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