The author of this article is Archana V. S. She is a 6th-semester student of 3 years unitary LLB at Government law college, Thrissur.

INTRODUCTION

Indian constitution laid down the provisions to protect the rights of common citizens to claim ‘Constitutional Remedies’ in the cases of any violations of their Fundamental Rights contained in Part III of the Constitution. On the other hand, the High Courts and Supreme Court of India have been given the status of ‘Constitutional Courts’ by the Constitution. Those Constitutional Courts are often termed as the ‘Watchdog of the Indian Constitution and the Judges of the Courts are often termed as the ‘Guardian of the Indian Constitution. For this reason, the role of the judiciary is recognized as equally vital along with the other branches of the Government to protect the democratic system of a country for upholding the Fundamental Rights of the citizens within the limits of reasonable restrictions. Therefore, it becomes the duty of the Constitutional Courts to ensure the Fundamental Rights of the citizens. The High Courts and Supreme Courts are empowered by the Constitution of India to do so in the course of the administration of justice. Articles 32 and 226 of the Indian Constitution empower the Supreme Court and the High Courts respectively to exercise their ‘Writ jurisdictions’. 

HISTORY OF WRITS 

Writs were first introduced in India in 1774 by a Royal Charter of Britain. During this period, The East India Company started to be subjected to parliamentary control. The Charter created a Supreme Court at Calcutta and conferred on it the right to issue all writs as were issued in England. Subsequently, Supreme Courts of Judicature were added in Madras in 1800 and Bombay in 1823 with similar provisions. Later, the three supreme courts were replaced by High courts in the same places by the Indian High Courts Act of 1861, but the power to issue writs was confined only to those three high courts and that too within their jurisdictions only for writs of prohibition and certiorari. The other high courts in India created under the Act did not have any power to issue writs. Slowly, the authority to issue writs of Habeas Corpus and Mandamus was curtailed and taken away. This remained the scenario until 1950. In 1950, the Constitution of India came into effect. The authority to issue writs of a certain nature was provided in the constitution to the Supreme Court under article 32 for the protection of fundamental rights and to the High Courts under article 226 for the protection of fundamental rights as well as any other rights of any person. Writs may be issued against any organ of the government or any statutory creation. On the Subject of who may file a writ petition, The Supreme court in the landmark case Satyanarayana Sinha v. Lal & Co.,¹ has given itself jurisdiction to determine whether any person or group has locus standi to file a petition. Under Articles 32 and 226 of the Indian Constitution, any person whose Fundamental Rights are violated by any act of the State or Authority can directly approach the Supreme Court and High Courts respectively filing a writ petition and the concerned court may pass any writ as mentioned in both the Articles, exercising its writ jurisdiction if it deems fit to provide Constitutional remedies to him. The powers of the High Courts under Article 226 are sometimes considered to be broader than the Supreme Court because it doesn’t only contain the Constitutional remedies, but also the other remedies guaranteed in the different parts of the Constitution. 

DIFFERENT TYPES OF WRITS

Article 32 of the Indian constitution, refers specifically to five types of writs to provide Constitutional remedy. Those are: 

1) Writ of Habeas corpus 

2) Writ of mandamus 

3) Writ of certiorari 

4) Writ of prohibition 

5) Writ of Quo warranto. 

1) WRIT OF HABEAS CORPUS 

The writ of habeas corpus is the legal procedure that acts as a remedial measure for the person who is illegally detained. The term habeas corpus is the Latin word that means to bring or present the body before the court. It is the most important right available to the person detained unlawfully. The basic purpose for which this writ is used is to release a person from unlawful detention or imprisonment. This writ is of great importance as it determines a person his right to freedom and personal liberty. The concept of habeas corpus can be traced way back to the thirteenth century. The writ of Habeas corpus cum causa is an order calling upon the person who has detained another person, to present the person in the court and justify his actions on what grounds and under what authority he has confined that person. If the court doesn’t find any legal justifications for the cause, then it will order for the immediate release of the person confined or imprisoned. The person who may apply for the writ of habeas corpus should be:- 

• The person confined or detained illegally. 

• The person who is aware of the benefit of the case. 

• The person who is familiar with the facts and circumstances of the case and willingly files an application of the writ of habeas corpus under articles 32 and 226 of the Indian constitution. 

The following conditions when the writ of habeas corpus is refused are as follows: 

• When the court doesn’t have territorial jurisdiction over the detainer. 

• When the detention of a person is connected with the order of the court. 

• When the person detained is already set free. 

• When the confinement has been legitimized by the removal of the defects. 

• The writ of habeas corpus will not be available during an emergency. 

• When the competent court dismisses the petition on the grounds of merits. 

ORIGIN OF HABEAS CORPUS

The origin of Habeas Corpus can be traced back to 1215 AD when King John signed the landmark document of the Magna Carta. The 39th clause of this historical document stated, “No man shall be arrested or imprisoned except by the lawful judgment of his peers and by the law of the land.” The concept of Habeas Corpus is embedded in legal systems all over the world, for instance, in the United States, through the First Judiciary Act of 1789, Congress explicitly authorized the federal courts to grant habeas corpus relief to federal prisoners. The writ of habeas corpus is maintainable during an emergency proclamation, as after the 44th amendment in 1978 it was stated that fundamental rights enshrined under articles 20 and 21 cannot be suspended. And for the enforcement of these rights, the writ petition can be filed in court. 

CASES

 • Additional district magistrate of Jabalpur v. Shivakant Shukla,² This case is also known as the habeas corpus case and it was based upon the grounds of issuance and the viability aspect of this writ. This whole case spins around the situation when the emergency was proclaimed and the question was raised whether the writ of habeas corpus is maintainable in this situation or not. It was held that as in the case of Liversidge v. Anderson,³ during an emergency all the rights were held suspended, the same was held in the instant case where a state has the power to restrain the rights, especially the right to life enshrined under Article 21 of the Indian constitution in an emergency situation. This decision was considered to be the darkest day of Indian history. 

• Sheela Barse v. State of Maharashtra,⁴ In the instant case, a letter was written to the supreme court regarding the condition of the women prisoners who were assaulted in the lockup, and the writ petition was filed regarding this situation by the plaintiff who was a human rights activists. An investigative authority was sent by the court to crosscheck the situation and the allegations made by the plaintiff. It was found that the allegations were correct. It was held that if a person detained or confined can’t file an application for the writ then some other person can file it on his behalf which quashed the locus standi approach. 

• Sunil Batra v Delhi Administration,⁵ In the instant case, it was held by the court that the writ petition of habeas corpus can be filed in the court not only for the wrongful or illegal confinement of the prisoner but also for his protection from any kind of ill-treatment and discrimination by the authority responsible for his detention. Thus the petition can be filed for the unlawful detention and checks the manner in which the detention was caused.

• Nilabati Behra v. The State of Orissa,⁶ In this case, the son of the petitioner was taken away by the Orissa police for the purpose of interrogation. All the efforts made in order to trace him turned out to be futile. So the writ petition of habeas corpus was filed in the court. During the pendency of the petition, the dead body of the petitioner’s son was found on the railway track. The petitioner was awarded compensation for Rs. 1,50,000. 

• Kanu Sanyal v. District Magistrate Darjeeling & Ors.,⁷ In the instant case, it was held that instead of following the traditional method of producing the body before the court there must be a complete focus on the legality of the detention by looking into the facts and circumstances of the case. This case majorly focused on the nature and scope of the case and stated that this writ is a procedural writ and not a substantive writ. 

2) 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. The primary purpose of this writ is to make the Government machinery work properly. An order of mandamus is a command directed to any person, corporation, or an inferior tribunal, requiring them to do some particular thing which pertains to their/his office and which is in the nature of public duty. The public servants are responsible to the public for the lawfulness of their public duties and their actions under them. If a public authority fails to do what is required under law or does beyond what was to be done, a writ of mandamus may be issued to make him do what was required under the law. Mandamus may also be issued to a tribunal to compel it to exercise the jurisdiction vested in it, which it has refused to exercise. Mandamus may also be issued where there is a specific legal right, without specific remedy for enforcement of such right and unreasonableness has no place. The Supreme Court in various decisions has held that the doctrine of legitimate expectation is akin to natural justice, reasonableness, and promissory estoppel. Thus the writ or order in the nature of mandamus would be issued when there is a failure to perform a mandatory duty. but even in the cases of alleged breaches of mandatory duty, the party must show that he has made a distinct demand to enforce that duty, and demand was met with refusal. 

1. The writ of mandamus can only be granted when there is in the applicant a right to compel the performance of some duty cast upon the authority. The duty sought to be enforced must be a public duty and not a private duty. 

2. Thus writ of mandamus can be issued to the public authority to restrain it from acting under a law that has been declared unconstitutional. 

3. The writ of mandamus can be granted only in cases where there is a statutory duty imposed upon the officer concerned, and there is a failure on the part of that officer to discharge the statutory obligation. The writ of mandamus cannot be granted in case of the following circumstances 

• When the duty is merely discretionary. 

• Against a private individual or any private organization because they are not entrusted with public duty. 

• A writ of mandamus cannot be granted to enforce an obligation arising out of a contract. 

HISTORY OF WRIT OF MANDAMUS 

Mandamus came to India by the Letters Patent creating the Supreme Court in Calcutta in 1773. The Supreme Court was empowered to issue the writ. In 1877, the Specific Relief Act added order in the nature of mandamus in the place of the writ of mandamus. It was done for the purpose of requiring any specific act done or forborne within the local limits of its ordinary civil jurisdiction by any person holding a public office. Under the Specific Relief Act, 1963, this provision has been omitted. This omission has done because such a provision under the Specific Relief Act became redundant. The constitution of India also had similar and effective provisions for the enforcement of public duties. Later constitution gave the powers to all high courts to issue writs. The Supreme Court can also issue a mandamus for the enforcement of fundamental rights. 

CASES 

• State of Mysore v. K. N Chandrasekhara,⁸ In the given case high court has issued a writ of mandamus directing the public service commission to include the names of the six petitioners in the list prepared by the Commission under Rule 9 (2) of the Rules for appointment to the cadre of Munsiffs. In the view of the High Court, the appointment of ten candidates whose names were included in the list under R. 9 (2) as fit for promotion could not be disturbed, yet the six applicants should be added to the list and appointments should be made out of that list. Such direction as given by the high court to public service commission can also be issued against any person or body corporate also to perform their public duty. 

• Mani subrat Jain v. State of Haryana,⁹ In the given case Justice Ray A.N. given a definition of an aggrieved person” a person is said to be an aggrieved only when his legal rights have been denied by someone who has a legal duty to do something or denied from doing something. The denied legal right must be a legally enforceable right as well as a legally protected right before one suffering a legal grievance can ask for a mandamus. 

• Umakant Saran v. State of Bihar,¹⁰ In the given case Dr. saran has challenged the order of the High Court by special leave of appeal before the Supreme Court of India. From the facts of the case, it was observed by the court that Dr. saran was not eligible for appointment at the time the decision was taken by the High Court i.e. on March 31, 1965. Whereas respondents 5 and 6 were so eligible, and therefore, Dr. Saran had no right to ask for a writ of mandamus. It was pointed out by the court that the purpose of mandamus is to force the authorities to do something, it must be shown that the statute imposes a legal duty and the aggrieved person had a legal right under the Statute to enforce its performance. Therefore, the appeal was dismissed by the court, and a writ of mandamus was not issued. 

3) WRIT OF CERTIORARI 

Certiorari is a Writ that is issued by a superior court to an inferior court. This can be issued when the superior court wants to decide a matter in the case itself or if there is an excess of jurisdiction by the inferior court. This Writ can also be issued when there is a fundamental error in the procedure followed by the inferior court or if there is a violation of the principles of natural justice. If the superior court finds out that there has been a violation of natural justice or a fundamental error in the procedure adopted, it can quash the order of that inferior court. The Writ of Certiorari can be issued on the following grounds:.

• On the grounds of jurisdiction, a Writ can be issued by the superior court. Whenever an inferior overstep its jurisdiction or abuses the jurisdiction provided to it or when there is an absence of jurisdiction of the inferior court, the Writ will be issued to quash the order made by the inferior court.

• The violation of principles of natural justice is another ground on which the Writ of Certiorari can be issued by the court. The principles of natural justice form an important part of the Indian Constitution as these principles have been recognized by the Constitution such as the principle of Audi alterum partem which means hearing of both sides is an essential part of the Indian Constitution. 

• When there is an error apparent on the record, it becomes a valid ground for issuing the Writ of Certiorari. This Writ can be issued when the error is based on a clear disregard to the provisions of law and not merely because the judgment was wrong. For the Writ of Certiorari the following conditions should be fulfilled: 

• The body or person has legal authority. 

• Such authority is related to determining those questions which affect the rights of the people. 

• Such a body or person has a duty to act judicially in doing its functions. 

• Such a person or body has acted in excess of their jurisdiction or legal authority. 

When all these conditions are fulfilled, only then a Writ of Certiorari can be issued against the body or person who has acted in excess of their jurisdiction. The Writ of Certiorari lies against those bodies which are judicial or quasi-judicial in nature. Thus, when anybody or a person is performing a judicial act, their acts can be subjected to the Writ of Certiorari. It also means that the scope of the application of this Writ is limited to only the judicial bodies or the bodies which perform judicial functions and it will not extend to the Central, State, or Local Governments because their functions are administrative in nature and not judicial. 

CASES 

• Syed yakoob v. Radha Krishnan,¹¹ In this case the Supreme Court held that an error of law which is apparent on the face of the record can be corrected by a writ of certiorari but not an error of fact. 

• State of Uttar Pradesh v. Mohammed Nooh,¹² In this case the Supreme Court held that the writ of certiorari can be issued to a body performing the judicial or quasi-judicial function for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction, or in excess of it or fails to exercise it. 

4) WRIT OF PROHIBITION 

A writ of prohibition is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction in cases pending before it or acting contrary to the rules of natural justice. It is issued by a superior court to inferior courts from usurping a jurisdiction with which it was not legally vested, or in other words to compel inferior courts to keep within the limits of their jurisdiction. Thus the writ is issued in both cases where there is an excess jurisdiction and where there is the absence of jurisdiction. Prohibition is not a continuation of the proceedings to be prohibited. Its object is on the contrary to arrest the inferior tribunal’s proceedings. It is a collateral matter progress essentially between the two tribunals, an inferior one and another superior one by which the latter, by virtue of its power of superintendence over the former, restrains it within its rightful competence. Its nature is held to depend upon the nature of proceeding to be prohibited. The writ can be issued only when the proceedings are pending in a court if the proceeding has matured into the decision, the writ will not lie. When the court, before whom the matter is pending, has ceased to exist, in that condition too, the writ of prohibition will not lie because there can be no proceedings upon which it can operate but on the other hand, if the court is functioning, the writ can be issued at any stage of the proceeding before the inferior court or tribunal. It can be issued only against a judicial and quasi-judicial body and not against a legislative or administrative body. 

CASES 

• East India Commercial Co. Ltd. v. Collector of Customs,¹³ In the given case observation is given by the Supreme Court that writ of prohibition is an order directing inferior courts and tribunals to stop from proceeding therein on the ground that the proceeding is taking place with excess jurisdiction or lack of jurisdiction. 

• P.S. Subramaniam Chettiar v. Joint Commercial Tax Officer,¹⁴ [AIR 1967 Mad 72] In this case, the court held that the issue of the writ of prohibition can only be done when the petitioner can prove that any government official has a duty towards him which falls under his jurisdiction but failed in deploying it. The distinction between Certiorari and Prohibition is that, both these are issued at different stages of proceedings. One is issued to the inferior court when such court acted without any jurisdiction then the person against the proceedings are taking place can move to the superior court for a writ of prohibition, whereas on the other hand for a writ of certiorari court have to hear the matter and gives a decision on that and the aggrieved party can move to the superior court of issuance of the writ. Further, the order may be passed for quashing the decision on the ground of want of jurisdiction. In cases where the inferior court might have passed the order but the same does not completely dispose of the case so it might be necessary to apply both the writs- certiorari for quashing the decided issues and prohibition for barring further proceedings for continuing the case and deciding left issues. Like in cases where interim orders had been passed. Hari Vishnu Kamath v. Ahmad Ishaque,¹⁵ In this case, the supreme court held that in cases where there is a requirement for the prayer of certiorari as well as prohibition and the in the application not a prayer of certiorari has been made then it would be open to the court to issue the writ and stop further proceedings which are affecting the decision. But in case the proceedings have ended then seeking for prohibition will be too late and writ of certiorari must be a proper remedy for quashing. Clearing on the point it was also held that writ of prohibition will lie when the proceeding is pending to a large extent and writ of certiorari will be issued when then the case has been terminated in a final decision. Where the proceedings of inferior courts are partly within the jurisdiction and partly without it, then the writ of prohibition will lie to the extent of the excess of jurisdiction. 

5) QUO WARRANTO 

Quo Warranto Literally means “By what authority,” it is a high prerogative writ and the information in the nature of quo warranto lies against a person who claims or usurps any office, franchise, or liberty, to inquire by what authority he supports his claim in order that the right to the office or franchise might be determined. The object of this writ is to determine the right of a person to hold a particular public office. Such a person is asked to show what is the authority under which he is holding that office. A piece of information in the nature of quo warranto would lie even at the instance of a realtor who has no personal interest in the matter. Information in the nature of quo warranto can be filed in the case of Municipal Corporations of Local Boards on the relation of private parties. It is open to a private individual to bring it to the notice of the Court that a person who is disqualified to hold any office is still holding it. In deciding whether the information in the nature of quo warranto should be refused or whether the rule should be granted, the test is whether there has been a usurpation of an office; in other words, whether there is a legal disability to hold the office by or a legal prohibition against a person occupying a particular place. Where the office is abolished, no information in the nature of quo warranto lies. The office must not be of a private nature when the writ of quo warranto is to be availed of. It does not lie against the master of a hospital and free school appointed by Governors of a private charitable foundation whose duties are not public. 

CASES 

• Anand Bihari Mishra v. Ram Sahay,¹⁶ In this case the office of speaker of a legislative assembly is holding a public office and writ of quo warranto can be issued for inquiring about the appointment made. It can also lie to question the appointment of a High Court judge. 

• Shyam Sunder v. State of Punjab,¹⁷ In the given case writ petition was filed under article 226 before the Punjab and Haryana High Court by municipality requesting an order in the nature of quo warranto, enquiring the elected member of municipality, and on the inquiry, it was found that 10 elected members of Municipality Board were appointed wrongfully and their seats were declared vacant. 

• Jamalpur Arya Samaj v. D. Ram,¹⁸ Writ petition was moved to the High Court by the petitioner against the members of the working committee of Bihar Raj Aryan Pratinidhi i.e is a private religion association. The court dismissed the petition on the ground that a writ of quo warranto can’t be issued against a private association.  

CONCLUSION

One of the important and fundamental concepts in the Indian legal system is Ubi Jus Ibi Remedium, which means, wherever there is a right there is a remedy. The right and remedy are two sides of the same coin and they cannot be separated from each other. One of such remedies available to an individual aggrieved by any action of Administrative authority is a judicial review by way of prerogative remedies. Their prerogative remedies are provided with writs. The construction of India under Article 32 and 226 gives power to the Supreme Court and the High Court to issue prerogative writs in the nature of Habeas corpus, Mandamus, Prohibition, Certiorari, Quo warranto. The framer of the Indian constitution made specific provisions in the constitution itself empowering the Supreme Court and High Courts to issue writs. Therefore these remedies are also known as Constitutional remedies.

END NOTES

1. [AIR 1973 SC 2720]

2. [AIR 1976 SC 1207]

3. [[1941] UKHL 1] 

4. [1986 SCC 96]

5. [AIR 1980 SC 1579]

6. [AIR 1993 SC 1960]

7. [AIR 1974 SC 510] 

8. [AIR 1976 SC 853]

9. [AIR 1977 SC 276]

10. [AIR 1973 SC 964]

11. [ AIR 1955 SC 477]

12. [AIR 1958 SC 86]

13. [AIR 1963 SC 1893]

14. [AIR 1967 Mad 72]

15. [AIR 1955 SC 233]

16.  [AIR 1952 Madh Bha 31]

17. [1992 1 PLR 126]

18. [AIR 1954 Pat 297]