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WRITS- CONSTITUTION

Updated: Mar 25, 2022

WRITS- CONSTITUTION


The prerogative writs are the 'Supreme remedies' available in England. Our Supreme Court and the High Courts are empowered to issue them, at their discretion. These are issued against the 'State' as defined in Art. 12. There are five such writs: Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo Warranto.



Habeas Corpus ( means To have the body):

It is in the nature of a call to the detaining authority to produce the detinue before the court in order to let the court know on what grounds the detinue has been detained. If there are no legal grounds for detention, the detinue is to be released. The writ may be addressed to anybody or authority who has been detained. The Supreme Court in K. Sanyal V. District Magistrate Darjeeling held that the production of the detinue before the Court was not necessary.


The Supreme Court under Art. 32 and the High Courts under Art. 226 are empowered to issue the writ of Habeas Corpus for enforcement of Fundamental Rights :(Eg.: Art. 21). The detention is valid if it is according to Art. 21 or 22 of the constitution. A writ will be issued if the arrested person is not produced before the court within 24 hours as per Art. 22. Any person who has been detained or his 'next friend' may move the writ of Habeas Corpus. The burden is on the detinue to prove that the detention is without legal authority or with mala fides or in excess of authority. According to 44th Amendment, even during National Emergency, Arts.21&22 cannot be suspended. Hence, this supersedes the Habeas Corpus case (A.D.M. Jabalpur V. Shukla). The position now compares well with England, where even during the I & II World Wars Habeas Corpus was not suspended.


(Liversidge V. Anderson and in re Halley: Leading English Cases on this). Writ may be issued against detention under contempt of the Parliament (In re V'.P.Legislature tangle).

Andhra Pradesh Legislature Case (1989) : The Supreme Court issued a Writ of Habeas Corpus to release 30 persons who had been detained under the orders of the Speaker.

Preventive Detention: A person may be detained under any law made under this, but Art.22 (2) to (7) must be followed. Otherwise, the detention law becomes bad. The writ may be issued.Khudiram Das V.St.of West Bengal.


Leading Cases : (Supreme Court).

(a) In re Madhu Limaye 1969.

(b) Dr. Ram Manohar Lohia V. Supt. 1955.




Writ of Mandamus :

Literally, mandamus means 'Command'. It is a peremptory remedy. It demands masterly activity on the authority or body or person to whom it is addressed. It commands him to perform some public or quasi-public legal duty. When the doing of duty is by wilful means, the writ of mandamus may be sought after. It is issued in India to the State (Art. 12), against Govt. and the public officers and others who are bound to do a public duty or statutory duty. It may be issued to court and other judicial bodies when they have refused to exercise their jurisdiction.


Purpose:

(a) To enforce fundamental rights, A Communal Govt. order of Madras which infringed the right of the petitioner was held ultra vires by the Supreme Court, and the Government was ordered to consider and dispose of the petitioner's application for the job on merit, without the government order. (Venkataramana V State of Madras).

(b) To enforce statutory duties.

(c) To enforce an authority to perform a public duty imposed by a statute.

(d) To compel the court to exercise jurisdiction.

(e) To direct a public official or government not to enforce an unconstitutional law.

(f) lt may be granted against the President (i) Privy Purse Case ; (ii) Sawyers Case (United States) (iii) Board of Education V. Rice. This cannot be issued against Private Bodies or Organisations. It cannot be issued to the executive when the duty is merely discretionary.


Prohibition :

Is issued in pending cases. This writ is issued by the Supreme Court or High Court to an inferior court. The prohibition is against the inferior court continuing its proceedings in excess of its jurisdiction or usurping jurisdiction which is not legally vested in it.Hence the inferior courts may be compelled to limit themselves to their jurisdiction.

Prohibition commands masterly inactivity. It is available against inferior courts, judicial and quasi-judicial authority.


Grounds for issue of the Writ:

(1) Excess of Jurisdiction or without Jurisdiction.

(2) Violation of the principle of natural justice.

(3) Lower court acting under an unconstitutional law.

(4) Violation of fundamental rights.

The object of this writ is to prevent the defect, whereas certiorari cures the defect.



Certiorari:

It comes from 'Certified' (to inform). This is issued by the Supreme Court or the High Courts only to the inferior courts and tribunals.


The conditions are :

(i) The lower court or tribunal must have the legal authority to decide questions touching the rights of an individual.

(ii) It must have acted

(a) without jurisdiction

(b) in excess of jurisdiction or

(c) there must be an error apparent on the face of the record.


That is:

(1) Improperly constituted tribunals.

(2) Subject matter of inquiry is beyond the tribunal's jurisdiction.

(3) The tribunals acting in violation of principles of natural justice.

i.e., Rule against Bias, and Audi alterem partners. This means, no one should be a judge in his own cause and that reasonable opportunity must be given to defend (Hear and decide).


Leading Cases:

(1) Gallapalli Nageswara Rao's Case.

(2) Khushal Das Advani's Case.

(3) Hari Vishnu V. Syed Ahmed: Error apparent on the face of the record.

The Election Tribunal had decided a petition, allowing votes which would be invalid as per the Representation of People Act. Held, this was an error apparent on the face of the record and hence certiorari was issued by the Supreme Court. This writ is not issued against private bodies or organizations.




Quo Warranto :

Means by what Authority?

This writ was issued in England and in India to persons who claimed or usurped any office, franchise, liberty, or privilege belonging to the State. The object was to enquire by what authority such claim or usurpation, was done and to decide who had the right to the office, etc.


Conditions:

The office must be public, statutory, or constitutional. It must be a substantive one.

The basis of the writ is to see that by an unlawful claim a person does not usurp a public office. The writ is discretionary and, the court may refuse to issue if there is an alternative remedy. This writ is a very powerful instrument for safeguarding against the usurpation of public office. This writ can be moved by any person (Public Interest Litigation). In Karkare's Case, a private individual moved a writ against the Advocate General of MR Writ was issued. University of Mysore V. Govinda Rao: G who was a reader in English, petitioned for a Quo Warranto writ against Sri Anniah Gowda who was appointed as Professor of English.


The Supreme Court held that as per the law, the University could prescribe the qualifications, and the court would not go into the nature of qualification required.lt held that the qualifications were fulfilled by Sri Annaiah Gowda. Hence, Quo Warranto was not issued against the University.


















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