The Concept of the Five Writs

The supreme court, and High courts have power to issue writs in the nature of habeas corpus,
quo warranto, mandamus, certiorari and prohibition under Arts. 32 and 226 respectively.
Power to issue writs is primarily a provision made to make available the Right to
Constitutional Remedies to every citizen . In the landmark judgement of Basheshar Nath v.
Commissioner of Income Tax, AIR 1959 SC 149, the court said that the right to
constitutional remedies as we know is a guarantor of all other fundamental rights available to
the people of India and it is a duty of the Court to ensure that all the classes especially the
poor and the backward are not deprived of the Constitutional Rights guaranteed to them.
Habeas Corpus: The latin term habeas corpus means ‘you must have the body ‘ and a writ
for securing the liberty was called habeas corpus ad subjiciendum. By this writ the court
directs the person or authority who has detained another person to bring the body of the
prisoner before the court so as to enable the court to decide the validity, jurisdiction or
justification for such detention, as was held in the case of Shafin Jahan v. Asokan K. M. and
Ors., S.L.P (Crl.) No. 5777 of 2017. The principal aim of the writ is to ensure swift judicial
review of alleged unlawful detention on liberty or freedom of the prisoner. Under Art. 22, a
person arrested is required to be produced before a magistrate within 24 hours of his arrest ,
and failure to do so would entitle the arrested person to be released.
Quo Warranto: The writ of quo warranto is used to judicially control executive action in the
matter of making appointments to public offices under relevant statutory provisions . The writ
is also used to protect a citizen from the holder of a public office to which he has no right. If
he is not entitled to the office , the court may restrain him from acting in the office and may
also declare the office to be vacant. Quo warranto prevents illegal usurpation of public office
by an individual.
Mandamus: Mandamus can be issued when the Government denies to itself a jurisdiction
which it undoubtedly has under the law , or where an authority vested with a power
improperly refuses to exercise it, as was held in the case of Raj Balram Prasad v. State of
Bihar, (2018) 12 SCC 50. The function of mandamus is to keep the public authorities within
the limits of their jurisdiction while exercising public functions .Mandamus can be issued to
any kind of authority in respect of any type of function – administrative , legislative , quasi-
judicial , judicial Mandamus is used to enforce the performance of public duties by public
authorities.
Conditions for the passage of the Writ of Mandamus:
Legal Right -
The Petitioner must have legal rights in existence which he has been denied.
Legal duty-
A Legal duty must have been imposed on the authority and the performance of the duty
should be imperative. Such duty must be statutory either imposed by the Constitution or by
any other statute or or some rule of common law but should not be contractual.
Good Faith -
An Application for mandamus must have been made in good faith and not for any ulterior
motive.
A person whose right has been infringed may apply for a writ of mandamus. The writ of
mandamus is available against against all those bodies falling within the definition of state
under Article 12 of the Constitution.
Certiorari & Prohibition: A writ of certiorari or a writ in the nature of certiorari can only
be issued by the Supreme court under Art. 32 and a High court under Art. 226 to direct ,
inferior courts , tribunals or authorities to transmit to the court the record of proceedings
disposed of or pending therein for scrutiny , and , if necessary , for quashing the same.
A writ of prohibition is normally issued when inferior court or tribunal (a) proceeds to act
without jurisdiction or in excess of jurisdiction (b) proceeds to act in violation of rules of
natural justice or (c) proceeds to act under a law which is itself ultra vires or unconstitutional
or (d) proceeds to act in contravention of fundamental rights. This was mentioned in the case
of East India Commercial company v. Collector of customs, AIR 1962 SC 1893.

There is a fundamental distinction between writs of prohibition and certiorari. They are
issued at different stages of proceedings . When an inferior court takes up a hearing for a
matter over which it has no jurisdiction , the person against whom hearing is taken can move
the superior court for writ of prohibition on which order would be issued forbidding the
inferior court from continuing the proceedings . on the other hand if the court hears the matter
and gives the decision , the party would need to move to superior court to quash the decision /
order on the ground of want of jurisdiction.