A Writ is a formal
written order issued by a government entity in the name of the sovereign power.
In most cases, this government entity is a court. In modern democratic
countries, the administrative authorities are vested with vast discretionary
powers. The exercise of those powers often becomes subjective in the absence of
specific guidelines etc. Hence the need for a control of the discretionary
powers is essential to ensure that ‘Rule of Law’ exist in all governmental
actions. The judicial review of administrative actions in the form of writ
jurisdiction is to ensure that the decisions taken by the authorities are
legal, rational, proper, just, fair and reasonable. Safeguard of fundamental
rights and assurance of natural justice are the most important components of
writ jurisdictions
Writs are meant as
prerogative remedies. The writ jurisdictions exercised by the Supreme Court
under article 32 and by the high courts under article 226, for the enforcement
of fundamental rights are mandatory and not discretionary. But the writ
jurisdiction of high courts for 'any other purpose' is discretionary. In that
sense the writ jurisdiction of high courts are of a very intrinsic nature.
Hence high courts have the great responsibility of exercising this jurisdiction
strictly in accordance with judicial considerations and well established
principles. When ordinary legal remedies seem inadequate, in exceptional cases,
writs are applied.
Types of Writs:
1. Habeas Corpus: The meaning of the Latin phrase Habeas Corpus
is 'have the body'. According to Article 21, "no person shall be deprived
of his life or personal liberty except according to the procedure established
by law". The writ of Habeas corpus is in the nature of an order directing
a person who has detained another, to produce the latter before the court in
order to examine the legality of the detention and to set him free if there is
no legal justification for the detention. It is a process by which an
individual who has been deprived of his personal liberty can test the validity
of the act before a higher court.
The objective of the writ of habeas corpus is to provide for a speedy judicial
review of alleged unlawful restraint on liberty. It aims not at the punishment
of the wrongdoer but to resume the release of the retinue. The writ of habeas
corpus enables the immediate determination of the right of the appellant's
freedom. In the writs of habeas corpus, the merits of the case or the moral
justification for the imprisonment or detention are irrelevant. In A.D.M.
Jabalpur v. Shivakant Shukla , it was observed that “the writ of Habeas Corpus
is a process for securing the liberty of the subject by affording an effective
means of immediate relief from unlawful or unjustifiable detention whether in
prison or private custody. If there is no legal justification for that
detention, then the party is ordered to be released.”
2. Certiorari: The
writ of Certiorari is generally issued against authorities exercising
quasi-judicial functions. The Latin word Certiorari means 'to certify'.
Certiorari can be defined as a judicial order of the supreme court or by the
high courts to an inferior court or to any other authority that exercise judicial,
quasi-judicial or administrative functions, to transmit to the court the
records of proceedings pending with them for scrutiny and to decide the legality and
validity of the order passed by them. Through this writ, the court quashes or
declares invalid a decision taken by the concerned authority. Though it was
meant as a supervisory jurisdiction over inferior courts originally, these
remedy is extended to all authorities who issue similar functions.
The
concept of natural justice and the requirement of fairness in actions, the
scope of certiorari have been extended even to administrative decisions. An
instance showing the certiorari powers was exercised by the Hon’ble Supreme
court in A.K.Kraipak v. Union of India, where the selection was challenged on
the ground of bias. The Supreme Court delineated the distinction between quasi
judicial and administrative authority. The Supreme Court exercising the powers
issued the writ of Certiorari for quashing the action. Certiorari is corrective
in nature. This writ can be issued to any constitutional, statutory or non
statutory body or any person who exercise powers affecting the rights of
citizens.
3. Prohibition: The grounds for issuing the writs of
certiorari and prohibition are generally the same. They have many common
features too. The writ of prohibition is a judicial order issued to a
constitutional, statutory or non statutory body or person if it exceeds its
jurisdiction or it tries to exercise a jurisdiction not vested upon them. It is
a general remedy for the control of judicial, quasi judicial and administrative
decisions affecting the rights of persons.
The
writ of Prohibition is issued by the court exercising the power and authorities
from continuing the proceedings as basically such authority has no power or
jurisdiction to decide the case. Prohibition is an extra ordinary prerogative
writ of a preventive nature. The underlying principle is that ‘prevention is
better than cure.’ In East India Commercial Co. Ltd v. Collector of Customs, a
writ of prohibition is an order directed to an inferior Tribunal forbidding it
from continuing with a proceeding therein on the ground that the proceeding is
without or in excess of jurisdiction or contrary to the laws of the land,
statutory or otherwise.
4. Mandamus: The writ of mandamus is a judicial remedy in
the form of an order from the supreme court or high courts to any inferior
court, government or any other public authority to carry out a 'public duty'
entrusted upon them either by statute or by common law or to refrain from doing a specific
act which that authority is bound to refrain from doing under the law. For the
grant of the writ of mandamus there must be a public duty. The superior courts
command an authority to perform a public duty or to non perform an act which is
against the law. The word meaning in Latin is 'we command'. The writ of
mandamus is issued to any authority which enjoys judicial, quasi judicial or
administrative power. The main objective of this writ is to keep the public
authorities within the purview of their jurisdiction while performing public
duties. The writ of mandamus can be issued if the public authority vested with
power abuses the power or acts mala fide to it. In Halsbury’s Laws of England ,
it is mentioned that, “As a general rule the order will not be granted unless
the party complained of has known what it was required to do, so that he had
the means of considering whether or not he should comply, and it must be shown
by evidence that there was a distinct demand of that which the party seeking
the mandamus desires to enforce and that that demand was met by a refusal.”
5. Quo Warranto: The
word meaning of 'Quo warranto' is 'by what authority'. It is a judicial order
against a person who occupies a substantive public office without any legal
authority. The person is asked to show by what authority he occupies the
position or office. This writ is meant to oust persons, who are not legally
qualified, fro substantive public posts. The writ of Quo warranto is to confirm
the right of citizens to hold public offices. In this writ the court or the
judiciary reviews the action of the executive with regard to appointments made
against statutory provisions, to public offices .It also aims to protect those
persons who are deprived of their right to hold a public office.
In
University of Mysore v. Govinda Rao, the Supreme Court observed that the
procedure of quo Warranto confers the jurisdiction and authority on the
judiciary to control executive action in making the appointments to public
offices against the relevant statutory provisions; it also protects a citizen
being deprived of public office to which he may have a right.
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