INTRODUCTION

What is a writ petition?

A writ petition can be termed a formal written order issued by a judicial authority that
possesses the power to do so. The meaning of the word ‘Writs’ means command in writing in
the name of the court. The court issued a legal document that orders a person or entity to
perform a specific act or cease performing a specific action or deed. Writ Petition is an order
by a higher court to a lower court or courts directing them to act or stop them from doing an
activity. A writ is a form of written command in the name of the court. It directs you to act in
a specific way. Fundamentally, a writ is a formal written order issued by anybody, executive
or judicial, authorised to do so. In modern times, this body is generally judicial. Therefore, a
writ can be understood as a formal written order issued by a Court that has the authority to
issue such an order. Orders, warrants, directions, summons are all essentially writs. A writ
petition is an application filed before the competent court requests a specific writ.

So, basically, a writ means an order issued under an authority. Therefore, a writ can be
understood as a formal order issued by a Court. On the other hand, a writ petition is an
application filed before a Court requesting to issue a specific writ.

India is lucky enough to have a constitution in which the fundamental rights are enshrined
and appointed an independent judiciary as guardian of the Constitution and protector of the
citizen’s liberties against the forces of authoritarianism. In a proper form of democracy, the
rule of a fearless independent and impartial judiciary is indispensable, and it cannot be over-
emphasised. Judicial review of legislation results from two of the most fundamental features
of the Indian Constitution. To begin with, it is the two-tier system of law with the
Constitution as the Supreme law and other legislation being the ordinary law which is valid
only as far as it is consistent with the Constitution. Then is the separation of the legislative,
the executive and the judicial powers of the State. Deriving their powers from the
Constitution, the legislatures in India enact statutes. There is a two-fold limitation on the
validity of the statutes. First, the Legislatures must have the competence to enact them. In
addition, they must not conflict with the Constitution. Hence, they would be invalid to the
extent of their repugnancy with the Constitution.

Constitutional philosophy of Writs

A person with infringement of his right whose right by an arbitrary administrative action may
approach the court for an appropriate remedy. Under Articles 32 and 226, the Constitution of
India confers writ jurisdiction on Supreme Court and High Courts, respectively, for
enforcement/protection of fundamental rights of an Individual. A writ is an instrument or
order of the court by which the Court (Supreme Court or High Courts) directs an Individual
or official or authority to do an act or abstain from doing an act.

Understanding of Article 32

Article 32 is the right to constitutional remedies enshrined under Part III of the Constitution.
The right to constitutional remedies was considered a heart and soul of the Constitution by Dr
Bhim Rao Ambedkar. Article 32 makes the Supreme Court a protector and guarantor of
fundamental rights. Article 32(1) states that if any fundamental rights guaranteed under Part
III of the Constitution is violated by the government, then the person has the right to move
the Supreme Court to enforce his fundamental rights. Article 32(2) gives power to the
Supreme court to issue writs, orders or direction. It states that the Supreme court can issue 5
types of writs habeas corpus, Mandamus, prohibition, quo warranto, and Certiorari, to
enforce any fundamental rights given under Part III of the Constitution. The Power to issue
writs is the original jurisdiction of the court. Article 32(3) states that Parliament by law can
empower any courts within India’s local jurisdiction to issue writs, orders or directions
guaranteed under Article 32(2). Finally, article 32(4) states that rights given under Article 32
cannot be suspended except such suspension provided by the Constitution.

Babasaheb Bhim Rao Ambedkar called Article 32 as heart and soul of the Constitution.

Article 32 is called the heart and soul of the Constitution because it gives the right to people
to move Supreme court directly for enforcement of their fundamental rights. Article 32 is
itself a fundamental right, making Article 32 the soul of the Constitution. According to the
Supreme court, Article 32 is the essential feature of the Constitution. It cannot be amended
even by an amendment in the Constitution.

The scope of Article 32

The scope of Article 32 is not broad enough as Article 226. Article 32 can be invoked only to
enforce fundamental rights under Part III. one cannot approach the Supreme Court for other
rights except fundamental rights. The power to issue writs under Article 32 is mandatory for
the Supreme court because Article 32 is fundamental. The Supreme Court is the protector of
these Fundamental Rights. The writs are vital instruments issued against the government and
government officials

Understanding of Article 226

Article 226 is enshrined under Chapter V of the Constitution. It empowers the High Courts to
issue certain writs. Article 226 gives discretionary power to the High courts to issue direction,
order, writs, including the writs in nature of habeas corpus, Mandamus, prohibition, quo
warranto, and Certiorari. Article 226 is invoked for the fundamental rights and a violation of
other rights. Article 226(1) states that despite Article 32, the High Court has the power to
issue a direction, order, or writs, including the writs like the writs in nature of habeas corpus,
Mandamus, prohibition, quo warranto, and Certiorari to any person, authority, government,
or public officials for enforcement of fundamental rights or any other rights under its local
jurisdiction. Article 226(2) states that despite the seat of government or authority or residence
of the person is not in the local jurisdiction of the High Court still high Court can issue a
direct order to such government, authority, or person if the cause of action wholly or in part
arises concerning its jurisdiction. Article 226(3) states that the

(i)When against a party, an interim order is issued by the high court in the way of interim
injunction or stay, or any proceedings relating to a petition under Article 226 without

(a) giving a copy of the petition or copies of all documents of the interim order to
such party and

(b) giving the opportunity to hear.

(ii) And if such party makes an application to the High Court for the vacation of such interim
order or petition and furnishes a copy of the application of vacation to the party in whose
favour such interim order or petition is made, or to the counsel of the party.

(iii) Then High Court shall dispose of the application within two weeks from the date on
which it is received or,

from the date on which the copy of such application is furnished, whichever date is later or

where the High Court is closed on the last day of that period, before the expiry of the next
day afterwards on which the High Court is open
(iv) and if the application is not so disposed of by the High Court, the interim order shall, on
the expiry of that period, or the expiry of the aid next day will be vacated.

Article 226(4) states that the power given to the High Court to issue direction, order or Writ
will not derogate the power given to the Supreme court under Article 32(2).

The scope of Article 226

The scope of Article 226 is much broad than Article 32. Article 226 not only gives the power
to issue direction, order or writs not enforce fundamental rights but also for the enforcement
of other rights too. Article 226 empowers the High Court to issue directions, orders or writs
to any person, authority, government, or public officials. Article 226 also talks about the
interim order for writs and also states the mechanism of how the High courts will dispose of
interim orders.

How Article 32 is different from Article 226?

 Article 32 gives power to Supreme Court, whereas Article 226 gives power to the
High Court.
 Article 32 is invoked for the enforcement of fundamental rights, whereas Article 226
is invoked for enforcement of fundamental rights and other legal rights.
 The power to High Court under Article 226 is vast than the Supreme court’s power
under Article 32.
 Article 32 is a fundamental right (Right to constitutional Remedies), whereas Article
226 is not a fundamental Right.

Types of Writs

The Indian Constitution provides five types of writs that the Courts can issue. They are:

 Habeas Corpus
 Mandamus
 Certiorari
 Prohibition
 Quo Warranto
 HABEAS CORPUS

The Courts issue the Writ of Habeas Corpus in those cases where a person is illegally
detained. Habeas Corpus means ‘to have the body, and it is one of the most effective
remedies available to a person detained. It is the most valuable Writ for personal liberty.

By this Writ, the court commands the person or authority who has detained or restrained
another person from presenting such person before the court. The court requires the detaining
person to provide the grounds on which the person has been detained, and if he fails to
provide a valid ground, the person who has been detained will be released by the court
immediately.

A writ of habeas corpus derived from the Latin word means “you may have the body” is a
writ (court order) that requires a person under arrest to be brought before a judge or into
court. The principle of habeas corpus ensures that a prisoner can be released from unlawful
detention—that is, detention lacking sufficient cause or evidence. The prisoner can seek the
remedy or another person coming to the prisoner’s aid.

This right originated in the English legal system and is now available in many nations.
Historically, it has been an important legal instrument safeguarding individual freedom
against arbitrary state action.

Even though the purpose of this Writ is to prevent a person from being detained, it will be
applicable only when the detention or restraint is unlawful. If the court finds the grounds for
detaining to be justified, this Writ cannot be issued. Also, if the court orders the detention of a
person, then it does not amount to unlawful detention, and this Writ cannot be issued. This
Writ can be applied not only by the detained person, but some other person can also do it on
behalf of the detained person.

Liberal Approach of the Court

In the cases of Habeas Corpus, the Courts have recognised the existing socio-economic
conditions in the country and the fact that still, many people are illiterate and poor. Thus, the
Courts do not reject the application made by the petitioner because he has failed to show the
proper ground on which he has challenged the detention.

Rules regarding the Writ of Habeas Corpus

The following are the rules related to the Writ of Habeas Corpus:

 The applicant should be in the custody of another

 Usually, the detained person and his family members can apply to habeas corpus, but
the court has also allowed such an application by strangers if done in the public
interest.
 The manner prescribed for filing this Writ is unnecessary, so the Courts accept both
formal and informal applications regarding the Writ. For E.g. a writ application can
also be made by postcard. In the case of Sunil Batra v. Delhi Administration, the
Supreme Court had accepted the application made through a letter by a co-convict (a
stranger) due to the inhuman treatment of prisoners. Accordingly, the letter was
accepted as an application, and the Writ of Habeas Corpus was issued.
 A person cannot make the application for the Writ successively to different judges of
the same court. Thus, if one Judge rejects an application, the same application cannot
be made to another judge of the same court, and if it is done, such an application will
be rejected because of the principle of res judicata.
 This Writ will apply in case of an arrest made by the police when all the formalities
and procedures required to be followed are not followed. For example – the
requirement of presenting the arrested person before a magistrate or the officer in
charge of the police station. [Section 56 of CrPC]

Delay in Furnishing Ground May Entitle Detune to Be Released

The court has consistently shown great anxiety for personal liberty and refused to dismiss a
petition merely because it does not disclose a prima facie case invalidating the order of
detention. Moreover, it has adopted a liberal attitude given the peculiar socio-economic
conditions prevailing in the country. People, in general, are poor, illiterate and lack financial
resources. Therefore, it would not be desirable to insist that the petitioner should set out
clearly and precisely the ground on which he challenges the order of detention. Furthermore,
the scope of the Writ of habeas corpus has considerably increased by virtue of the decision of
the Supreme Court in Maneka Gandhi Vs. Union of India and the adoption of the forty-fourth
amendment to the Constitution. Hence the Writ of habeas corpus will be available to the
people against any wrongful detention.
In Kanu Sanyal v. District Magistrate (AIR 1973 SC 2684), while enunciating the actual
scope of Writ of habeas corpus, the Supreme Court opined that while dealing with a petition
for Writ of habeas corpus, the court may examine the legality of the detention without
requiring the person detained to be produced before it.

In Sheela Barse v. State of Maharashtra (AIR 1983 SC 378), while relaxing the traditional
doctrine of locus standi, the apex court held that if the detained person is unable to pray for
the Writ of habeas corpus, someone else may pray for such Writ on his behalf.

In Nilabati Behera v. State of Orissa (AIR 1993 SC 1960), the Orissa police took away the
petitioner's son for interrogation & he could not be traced. During the pendency of the
petition, his dead body was found on the railway track. The petitioner was awarded
compensation

Additional district magistrate of Jabalpur v. Shiv Kant Shukla (1976 S.C.), also known as the
habeas corpus case, was based upon the grounds of issuance and the viability aspect of this
Writ. This whole case spun 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 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. This decision was the darkest day of Indian history.

In the case of Rudal Shah V. State of Bihar (AIR 1983 S.C.), the petitioner was acquitted
from Muzaffarpur Bihar on June 3 1968, but he was released on October 16, 1982, that is to
say, more than 14 years after he was acquitted. By a habeas corpus petition, the petitioner
asked for his release on the ground that his detention in the jail was unlawful. He also asked
for certain ancillary reliefs like rehabilitation, reimbursements of expenses he may incur for
medical treatment, and compensation for the illegal incarceration. It was held that the
detention was illegal as he was not brought before the magistrate court. Thus, the court
ordered to give compensation of 30 thousand rupees.

The Writ of habeas corpus is not issued in the following cases:

(i) Where the person against whom the Writ is issued or the person who is detained is not
within the jurisdiction of the court.
(ii) To secure the release of a person who has been imprisoned by a Court of law on a
criminal charge.

(iii) To interfere with a proceeding for contempt by a Court of record or Parliament.

Thus, the Writ of habeas corpus is a bulwark of personal liberty. It has been described as “a
great constitutional privilege” or “first security of civil liberty”. The most characteristic
element of the Writ is its peremptoriness, i.e., a speedy and effective remedy for having the
legality of the detention of the person enquired and determined by the court.

MANDAMUS

Mandamus is another critical Writ which is provided for by the Indian Constitution. In the
Writ of Mandamus, the superior courts order the Inferior Courts to do an act or abstain from
doing an act. This order can also be given to an Inferior Tribunal, Board, Corporation or any
other type of administrative authority.

In India, the Supreme Court is the apex court; therefore, it can issue the Writ of Mandamus
even against the High Court even though the High Courts have also been provided with the
power to issue such Writs under Article 226. So, a High Court can issue this Writ under
Article 226 only to the Inferior Courts such as the trial court of a district.

This Writ is helpful for enforcing the duty required by law or by the office which a person
holds. E.g. the Judge of the Court has a duty to follow the principles of natural justice, and if
the judge fails to do so, a Writ can be issued by the Superior Court to observe the fulfilment
of this duty.

One of the most critical points about the Writ of Mandamus is that it cannot be issued against
a private person, and therefore, only the State or the people who hold any office which falls
in the category of a public office can be compelled to do or to abstain from doing an act.

Grounds for Mandamus

The Courts can issue this Writ on the following grounds:

  The petitioner has a right recognised by law. The whole purpose of this Writ is to
enforce the rights of the citizens, but if no right accrues to a plaintiff, he cannot
approach the court to issue the Writ of Mandamus.

 The right of the petitioner has been infringed. However, having a right does not
automatically provide ground for issuing the Writs because any person will approach
the court without having any cause of action. Thus only when a right is violated the
Writ can be issued by the court.

 The petitioner has demanded the authority to perform their duty, but such duty has
been non-performance. Therefore, the Writ is issued to compel the authority to do the
act they are required to do by law or by the post they are holding; thus, it is an
essential ground for Mandamus.

 The last essential ground for Mandamus is the absence of an adequate alternative
remedy that can be resorted to by the petitioner to enforce the duty of the authority.

 The petitioner must show the court that a duty is owed to him by the authority, and
such authority has not performed their duty. This Writ can be issued against all the
administrative actions which are unlawful.

The authority has many duties, some of which are mandatory, and some are left at their
discretion to be performed. Thus, if an authority does not perform its mandatory duty, the
court will issue the Writ of Mandamus. However, in cases of discretionary duties, the Writ
cannot be issued, but the authority still has to act in good faith while deciding whether the
discretionary duty should be performed or not.

In the case of Vijaya Mehta v. State of Rajasthan (AIR 1980 Raj 207), a petition was filed in
the High Court for compelling the State to perform its duty of appointing a commission to
look into the climate change and floods in the State. The court held that the State Government
would have to appoint a commission only when a resolution was passed by the Legislature;
moreover, it was a discretionary duty and not a mandatory duty, so the Writ of Mandamus
was not issued in this case.

In the case of Bhopal Sugar Industries Ltd. v. Income Tax Officer, Bhopal (1977 SCR (3)
578), the Income Tax Appellate Tribunal had given clear directions to the respondent Income
Tax Officer by its final order. The Income Tax Officer had still refused to carry out the
directions given by the Tribunal. The Supreme Court held that the Income Tax officer had a
mandatory duty to fulfil the directions given by the Tribunal, and non-performance of which
amounted to grave injustice. Thus, the Writ of Mandamus was issued to direct the officer to
carry out the directions of the Tribunal.

When is Mandamus not allowed?

The Writ of Mandamus is a discretionary power of the court and is not a right that the
petitioner can enforce; therefore, in many cases, this Writ can be refused by the Courts.

The Courts can refuse to issue these Writs in the following cases:

 Where the right of the petitioner has lapsed

 The duty has already been fulfilled by the authority against which such a Writ is
sought to be issued, and therefore issuing the Writ would amount to nothing in such a
situation.

Who can apply for this Writ?

Usually, the person whose right is infringed is allowed to apply for the Writs of Mandamus.
However, after the Supreme Court adopted a liberal view and the advent of Public Interest
Litigation in India, a public-spirited citizen can also apply for issuing the Writ of Mandamus
on other people’s behalf.

To issue a Writ of Mandamus, the following considerations are of great importance:

 The duty which is sought to be enforced is a public duty.

 Such duty is enforceable by law.

In the case of Ratlam Municipality v. Vardhi Chand (1981 SCR (1) 97), it was held that
Ratlam Municipality was a statutory body that owed duties to the public such as removing
night soil and rubbish; removing any public nuisance etc. Therefore, the court issued the Writ
of Mandamus to enforce these duties by the Municipality. Thus, an application for
Mandamus can be made not only by the affected people but also by those who want to
enforce these Writs on behalf of others in the public interest.

CERTIORARI

Certiorari is a different type of Writ when compared with other Writs. This Writ is corrective,
which means the purpose of this Writ is to correct an error that is apparent on the records.

Certiorari is a Writ that a superior court issues to an inferior court. This can be issued when
the superior court wants to decide a matter in the case itself or an excess of jurisdiction by the
inferior court. This Writ can also be issued when the inferior court follows a fundamental
error in the procedure or 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.

Grounds for Certiorari

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 oversteps 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 court can
issue the Writ of Certiorari. The principles of natural justice form an important part of
the Indian Constitution as these principles have been recognised 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 an error is 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 law provisions and not merely because the judgement was wrong.

Important Conditions for Certiorari

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 that affect the people's rights.
Accordingly, 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 Supreme Court or High Court issues a writ of Certiorari to the

subordinate courts or Tribunal in the following circumstances:

1. When a subordinate court acts without jurisdiction or by assuming jurisdiction where it

does not exist, or

2. When the subordinate court acts more than its jurisdiction by way of overstepping or
crossing the limits of jurisdiction, or

3. When a subordinate court acts in flagrant disregard of law or rules of procedure, or

4. When a subordinate court acts in violation of principles of natural justice where there is no
procedure specified.

5. There must be a court with the authority or a legal right to act judicially.

6. If the judgement by any inferior court is against the laws mentioned under the Constitution.

7. If the judgement given by a lower court contains an error.

In the cases related to the Writ of Certiorari, the person who is aggrieved by the wrongful
exercise of jurisdiction by the court should bring the petition before the superior court. In this
regard, this Writ is different from the Writ of Habeas Corpus as Habeas Corpus can be
applied for even by a non-aggrieved person, and the courts will accept such an application.
The proceeding in the case of Certiorari is an original proceeding before the Superior Court
which a petitioner can initiate before the High Court under Article 226 and before the
Supreme Court under Article 32 of the Indian Constitution.

Against whom this Writ lies?

The Writ of Certiorari lies against those bodies which are judicial or quasi-judicial. Thus,
when anybody or a person performs 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 and not judicial.

Certiorari under Article 226 is issued for correcting the gross error of
jurisdiction, i.e. when a subordinate court is found to have acted:

1. Without jurisdiction or by assuming jurisdiction where there exists none

2. In excess of its jurisdiction by overstepping or crossing the limits of jurisdiction

3. Acting in flagrant disregard of law or rules of procedure or acting in violation of principles

of natural justice where there is no procedure specified, thereby occasioning failure of justice.

Writ of Certiorari in Simplest Form

In the literal sense, the word Certiorari means ‘to be certified’. One can issue the Writ of
Certiorari by the Apex court to transfer the matter to it or any superior authority for proper
consideration. You can issue the Writ of Certiorari against the inferior Court or Tribunal.
(e.g., a high court writ petition can be issued against lower district courts).

In the case of State of U.P. Vs. Mohammed Noor (AIR 1958 SC 816), the Supreme Court
stated that one could issue the Writ of Certiorari. To mainly reform the jurisdiction-related
mistakes of the inferior Court or Tribunal. Subsequently, in another judgment of Hari Vishnu
Kamath Vs. Ahmed Ishaq (AIR 1995 SC 233). The Supreme Court held that one could only
issue the Writ of Certiorari to correct the errors apparent on the face of records, but not to
correct an error of fact.

The Essential Condition for Writ of Certiorari

 There should be Court, tribunal or an officer having the 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. Alternatively, more than the judicial authority vested by law in such
Court, Tribunal or officer.

 The order could also be against the principles of natural justice. Alternatively, the
order could contain an error of judgment in appreciating the facts of the case.

PROHIBITION

The Writ of Prohibition is not issued often and is an extraordinary remedy that a Superior
Court issues to an inferior court or Tribunal to stop them from deciding a case because these
courts do not have the jurisdiction.

If the court or tribunals do not have jurisdiction and it still decides the case, it will be an
invalid judgment because it should have the sanction of law for an act to be legal. E.g., if a
District Court is hearing an appeal against the High Court's judgment, such an act is bound to
be prohibited because the District Court does not have the power to hear such an appeal. So, a
Writ of Prohibition will be issued against such an act of District Court.

The term prohibition simply means ‘to forbid’. The Writ of prohibition can only be issued
against judicial and quasi-judicial authorities. This Writ is generally not available against
administrative authorities and private individuals. A writ of prohibition is issued by a Court
to prohibit the lower courts, tribunals, and other Quasi-judicial authorities from doing
something beyond their authority. It is issued to direct inactivity and thus differs from
Mandamus, which directs activity. It is issued when the lower Court or Tribunal acts without
or more than jurisdiction or violates rules of natural justice or contravention of fundamental
rights. It can also be issued when a lower court or Tribunal acts under a law that is itself ultra-
virus.
It can be issued against a lower court or by a superior court to forbid the act performed
outside its jurisdiction at any stage of its proceedings. 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

(c) Proceeds to act under a law which is itself ultra virus or unconstitutional

(d) Proceeds to act in contravention of fundamental rights

Rules of Writ of Prohibition

In cases of Writ of Prohibition, the following rules are observed:

 The Writ can be issued only when:

 The inferior Court or Tribunal has overstepped its jurisdiction

 The Court or Tribunal is acting against the provisions of law

In cases where the court is partly acting within its jurisdiction and partly outside it, the Writ
will be issued against the act which is partly outside its jurisdiction.

The fact that the applicant has a right to appeal against the order of the inferior court will not
be a bar to issuing this Writ.

This Writ can be issued only when the proceedings are pending in the inferior court and not
when that court has already passed an order. Thus, this Writ is a preemptive remedy
exercised by the superior court to prevent the inferior court from acting outside its
jurisdiction.

The Writ of Prohibition can be issued only against a judicial or a quasi-judicial body, and it
cannot be issued against any administrative body.

Prohibition can be further classified as

As the name suggests, the Writ of Prohibition is a court petition issued either by the Supreme
Court or High Court to prohibit.

“When the lower courts including the tribunals, forums or any public authority (magistrate,
commissions or any other judicial officers) do something which exceeds their jurisdiction, the
Supreme Court or High Court prohibits them by issuing the writ of prohibition,”.

Prohibition writ for the court is issued to stop or put a stay on the power exercised by the
authority and is commonly known as stay order. In India, a writ petition is issued against the
proceedings going on in lower courts, and in such proceedings, the lower court is exceeding
its powers. Once the Writ of prohibition is allowed either by the Supreme Court or in High
Court, the lower court proceedings come to an end.

The Supreme Court in the case of Govind Menon Vs. UOI (AIR 1967 SC 1893) laid down
the conditions for issuing the Writ of prohibition. The conditions by the court are:

• When there is an excess of jurisdiction

 When there is an absence of jurisdiction

Difference between Prohibition and Certiorari

Both the Writs Certiorari and Prohibition appear to be the same, but there is one major
difference between the two. In the Writ of Prohibition, the superior court issues the Writ
before the Inferior Court passes the final order, and therefore, this is a preventive remedy,
while in Writ of Certiorari, the superior court issues the Writ after the inferior court has made
the final order. Thus, the Writ of Certiorari is a corrective remedy by which the order of the
inferior court is quashed.

There is a fundamental distinction between writs of prohibition and Certiorari. They are
issued at different stages of proceedings. For example, 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 a superior court to
quash the decision/order on the ground of want of jurisdiction.
 QUO WARRANTO

The courts issued the Writ of Quo Warranto against a private person when he assumes an
office on which he has no right. Quo Warranto means ‘by what authority, and it is an
effective measure to prevent people from taking over public offices. The power to issue this
Writ is discretionary on the courts, and therefore, nobody can demand that the court is bound
to issue this writ.

Conditions for issuing Quo Warranto

The Writ can be issued only when these conditions are fulfilled:

 The office that the private person has wrongfully assumed is a public office.

 The office was created by the Constitution or by any other statute.

 The nature of the duties which arises from this office is public.

 The term of office must be permanent, and it should not be terminable at any person
or authority’s pleasure.

 The person against whom the Writ is sought to be issued is in actual possession of the
office and is using such office.

This Writ can also be issued in those cases where a person was entitled to hold the office
earlier, but after getting disqualified, he is still in possession of the office.

Thus, in cases where the office is private, the court cannot issue this Writ. The court held this
view in the case of Niranjan Kumar Goenka v.The University of Bihar, Muzaffarpur (AIR
1973 Pat 85), in which the court observed that the Writ of Quo Warranto cannot be issued
against a person who is not holding a public office.

In the case of Jamalpur Arya Samaj Sabha v. Dr D Rama, the petitioner in the Patna High
Court made an application for the Writ of Quo Warranto against the Working Committee of
Bihar Raj Arya Samaj Pratinidhi Sabha, which was a private body. However, the court
refused to issue the Writ because it was not a public office.
The Constitution of India has provided the power to issue Writs to the Supreme Court under
Article 32 and to High Courts under Article 226. These Writs are a command that the Courts
give for the performance of an act to the public authority that has a duty to perform it.

Of these Writs, the scope of Mandamus is the widest. While other Writs are issued in certain
circumstances only, such as when a person is illegally detained (Habeas Corpus) or
overstepping of jurisdiction by a court (Certiorari), Mandamus can be issued in those cases
where there is on the performance of duty the authority. So, all these Writs have played a key
role in enforcing the rights of the people and have also improved the scope of the power
judicial review of courts.

Articles 32 and 226 provide five types of writs, namely Writ of habeas corpus, Mandamus,
prohibition, Certiorari and quo-warranto. These are known as prerogative writs in English
Law because they had originated in the King’s prerogative power of superintendence over the
due observance of law by his officers and tribunals. The prerogative writs are extraordinary
remedies intended to be applied in exceptional cases where ordinary legal remedies are not
adequate.

How to file a writ petition?

To file a writ petition in either of the courts, a specific procedure

needs to be followed:
1. Firstly, the aggrieved party must approach a particular organisation with necessary
documents like identity proof, residential proof, photographs etc.
2. Then there is the drafting of the petition with the help of a lawyer. The draft includes
the name and address of the aggrieved party and the facts that lead to the violation of
his/her fundamental rights.
3. After this process, the petition draft is sent to the court.
4. Then the date of hearing will be set, and on this date, the court accepts the petition
and generates a notice to the other party. After this, a date is given to assure the
presence of both parties.
5. Finally, after hearing both the parties, the court gives judgement and grants relief
accordingly.
CONCLUSION

Thus it is clear that vast powers are vested with the Judiciary to control an administrative
action when it infringes fundamental rights of the citizens or when it goes beyond the
spirit of Grundnorm of our country, i.e. Constitution of India. It ensures the Rule of Law
and proper checks and balances between the three organs of our democratic system. The
philosophy of writs is well synchronised in our Constitutional provisions to ensure that
the rights of citizens are not suppressed by an arbitrary administrative or Judicial action.