Concept of Writs In India

Introduction-
The first question arise in our mind while reading the topic is.. Actually, What Is Writ? The
answer is here- 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

Birth of Writs-

The origin of writs can be drawn from the English Judicial System and were created with the
development of English folk courts to the common law courts. The law of writs has its origin
from the orders passed by the King’s Bench in England. Writs were issued on a petition
presented to the king in council and were considered as a royal order. Writs were a written
order issued in the name of the name of the king. However, with different segments writs took
various forms and names. The writs were issued by the crown and initially only for the interest
of the crown later on it became available for ordinary citizens also. A prescribed fee was
charged for it and the filling of these writs were known as Purchase of a Writ.

Origination In India-

The origin of writs in India goes back to the Regulating Act, 1773 under which Supreme Court
was established at Calcutta. The charter also established other High Courts and also gave them
power to issue writs as successor to Supreme Court. The writ jurisdiction of these courts was
limited to their original civil jurisdiction which they enjoyed under Section 45 of the Specific
Relief Act, 1877.

Constitutional philosophy of Writs:

A person whose right is infringed by an arbitrary administrative action may approach the Court
for appropriate remedy. The Constitution of India, under Articles 32 and 226 confers writ
jurisdiction on Supreme Court and High Courts, respectively for enforcement/protection of
fundamental rights of an Individual. Writ is an instrument or order of the Court by which the
Court (Supreme Court or High Courts) directs an Individual or official or an 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.
Right to constitutional remedies was considered as a heart and soul of the constitution by Dr.
Bhim Rao Ambedkar. Article 32 makes the Supreme court as a protector and guarantor of the
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 right to move the
Supreme Court for the enforcement of 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, for the
enforcement of 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 of courts within the local jurisdiction of India to issue writs, order or directions
guaranteed under Article 32(2). 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

o Article 32 is called the heart and soul of the constitution because it gives rights to
people to move Supreme court directly for enforcement of their fundamental rights.
Article 32 is itself a fundamental right and it makes article 32 soul of the constitution.
 According to the Supreme court In the Chandra Kumar case (1997), the SC ruled that
the writ jurisdiction of both the high court and the Supreme Court constitute a part of
the basic structure of the Constitution. , it cannot be amended even by way of
amendment in the constitution.

The scope of Article 32

The scope of Article 32 is not wide enough as Article 226. Article 32 can be invoked only to
enforce fundamental rights under Part III. one cannot approach the Supreme court for
enforcement for other rights except fundamental rights. Power to issue writs under Article 32 is
mandatory for the Supreme court because Article 32 is itself a fundamental Right and Supreme
Court is the protector of these the Fundamental Rights. The writs are strong 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 not only to for the fundamental rights but also a
violation for other rights. Article 226(1) states that in spite of Article 32, High court has the
power to issue direction, order, or writs, including the writs in the nature of 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 own local jurisdiction. Article 226(2) states that in spite of 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 direction, order to such government, authority or person if the
cause of action wholly or in part arises in relation to its own jurisdiction. Article 226(3) states
that the

(i)When against a party any interim order is issued by high court in way of interim injunction or
stay, or any proceedings relating to a petition under Article 226 without (a) giving copy of the
petition or copies of all documents of the interim order to such party and (b) giving 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 also furnishes a copy of the application of vacation to the party in whose
favor such interim order or petition is made, or to the counsel of the party.

(iii) Then High court shall dispose of the application within a period of two weeks from the date
on which it is received or, from the date on which the copy of such application is so 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
afterward 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, as the case may be, 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 wide 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 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 interim order will be disposed of by the High
courts.

How Article 32 is different from the 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 right as well as other legal rights too.
  The power to High court under Article 226 is wide than the power of the Supreme court under
Article 32.
 Article 32 is itself a fundamental right (Right to constitutional Remedies) whereas Article 226 is
not a fundamental Right

In Devilal v. STO , it has been marked that, “There can be no doubt that the Fundamental
Rights, guaranteed to the citizens are a significant feature of our Constitution and the High
Courts under Article 226 are bound to protect these Fundamental Rights.” In Daryao v. State of
U.P. , it was held that the right to obtain a writ must equally be a fundamental right when a
petitioner presents the case. Thus, it cannot merely be considered as an individual’s right to
move the Supreme Court but it is also the duty and responsibility of the Supreme Court to
protect the fundamental rights.

Does the doctrine of Res Judicata is applied to the Writ Proceedings?

A writ has been defined in Article 32 and Article 226 of the Constitution of India. Article 32 has
given power to Supreme court to issue writs whereas same power is granted to High courts in
Article 226. There are 5 types of writs – Certiorari, Mandamus, Habeas Corpus, Prohibition &
Quo Warranto. The question that whether the doctrine of Res Judicata applies to the writ
proceedings is still disputable?

If we study the explanations of section 141 of the Civil Procedure Code, 1908 we can find that
Section 11 is not applicable to the proceedings under Article 226 of the constitution. But the
doctrine or the principle of Res Judicata can be applied to the writ proceedings when there is
no applicability of Section 11 of the code6. Once the question which has been decided by the
Writ Petition cannot be reopened by subsequent appeal[State of Gujarat v. Bhater Devi
Ramniwas Sanwalram (2002) 7 SCC 500]. It is settled law that the doctrine of Res Judicata is
applied in the Writ proceedings but there is one exception to this is that plea of Res Judicata
should not violate any fundamental rights of the citizen[Ashok Kumar Srivastava v. National
Insurance Company Ltd. (1998) 4 SCC]. The court can apply the principle of Res Judicata in the
writ petition but it is necessary for the court to pass a speaking order[Rabindra Nath Biswas v.
General manager, N.F. Rly AIR 1988 Pat 138.]. The court should give proper reasoning while
applying the res judicata. For the writ of the Habeas corpus, the doctrine of constructive Res
Judicata would not apply. If the petition is dismissed as withdrawn it cannot be a bar to a
subsequent petition under Article 32, because in such a case there has been no decision on the
merits by the Court[Daryao v. The State of U.P. AIR 1961 SC 1457].

Principles of Exercise Writs Jurisdiction

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.

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.”

The writ does not apply where a person is lawfully detained as an accused.

Illustration:
A person named Sumit is arrested by a police officer. Sumit then writes to High court that he
had been illegally detained. The concerned High court sends summons to the police officer to
state the valid grounds of Sumit's arrest. If the police officer fails to do so, Sumit shall set to be
free. Habeas Corpus safeguards Article 21 of the Indian constitution which is regarding the
right to life and personal liberty.

Grounds:

i. The applicant must be in custody

ii. Usually, the detained person and his family members are allowed to file an application
for habeas corpus but the court has also allowed such application by strangers if it is
done in public interest.In other words the relatives of detained person can also file this
writ. Also, any third person can file as public interest litigation.

iii. The manner prescribed for filing this writ is not necessary so both formal and informal
applications in respect of the writ is accepted by the Courts. 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. In this case, the letter was
accepted as an application and the writ of Habeas Corpus was issued.

iv. It can be in the form of letter by co-convict. In the case of Sunil Batra V. Delhi
administration, the writ of habeas corpus was issued on the grounds of letter by his co
convict where it was mentioned about the inhuman treatment by the prisoners.
v. This writ will apply when the formalities of arrest which are to be followed not followed
by the police officer. Example: under section 56 of the CrPc the arrested person is to be
produced before the magistrate within 24 hours. If the police officer, fail to do so the
writ of habeas corpus can be filed and issued.

In the case of Rajakannu Vs. State of Tamil Nadu and Ors, The Habeas Corpus petition
was submitted by R. Parvathy, Rajakannu's wife. They were farm labourers on a daily
pay with four children. The 4th Respondent Police reportedly beat R. Parvathy, her two
kids, and her brother-in-law at the police station on March 20, 1993.

On March 21, 1993, Rajakannu was arrested and the others were freed. On March 22,
1993, the Petitioner's wife witnessed her husband being severely assaulted while
chained to the window bars. She was also banged up after questioning the same. A
homoeopathic doctor was summoned to treat them after they incurred wounds and
their health deteriorated as a result. They were beaten up again after the doctor
departed. The Petitioner's wife was later forced to leave from the police station. Later,
she was told that her husband absconded from the station.

In Kanu Sanyal v. District Magistrate1 , while enunciating the real 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 Maharashtra2 , 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 Orissa3 , the Orissa police took away the son of the
petitioner for the purposes of interrogation & he could not be traced. During the
pendency of the petition, his dead body was found on railway track The petitioner was
awarded compensation of Rs. 1, 50, 000.
2. Certorari

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.

Conditions:

i. The body or person has legal authority

ii. The authority is related to determining those questions which affect the rights of the
people.

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

iv. Such a person or body has acted in excess of their jurisdiction or legal authority.
Grounds of writ

1. Lack of jurisdiction: When the authority has no jurisdiction to take action, it is lack of
jurisdiction. When an authority is improperly constituted or is incompetent to take action and if
it acts under an invalid law, it will amount to lack of jurisdiction. Similarly when the authority
acts without jurisdiction, fails to exercise the vested jurisdiction or acts in excess of the limits,
there involves a defect of jurisdiction or power. The court can issue certiorari to quash such
orders.

2. Abuse of jurisdiction: If an authority abuses its jurisdiction, a certiorari can be issued. When
the authority exercises its power for improper purposes it is abuse of jurisdiction. Similarly if
the authority acts in bad faith or ignores relevant points and facts or acts on some other
considerations abuse of jurisdiction occurs and the writ of certiorari becomes applicable.

3. Jurisdictional facts: A jurisdictional fact is that fact or facts upon which an authority's power
to act depends. In the absence of jurisdiction for collateral facts an authority cannot exercise
jurisdiction over a dispute and decide it. If the authority takes a decision on the wrong
assumption of existence of jurisdictional facts, the order is liable to be quashed by the writ of
certiorari.

4. Error of law apparent on the face of record: A writ of certiorari can be issued to quash an
order if there is an error of law apparent on the record. An error is apparent on the face of
record if it is self evident. i.e. if the error can be ascertained by a mere perusal of the record
without a detailed argument or further evidence. An error of law apparent on the face of the
record is treated as an insult to the legal system. Ignorance or neglect of law, wrong proposition
of law, inconsistency between the facts, law and the decision etc amount to errors of law.

5. Violation of the principle of natural justice: When there is a violation of the principle of
natural justice, a writ of certiorari can be issued. An authority is bound to observe the principles
of natural justice. Anyone who decides a case must adhere to the minimum standards of
natural justice. Hence when there occurs an infraction of fundamental right, the writ of
certiorari comes for restoration of that right
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.

 For e.g., if a District Court is hearing an appeal against the judgement of the High Court, 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.

Grounds:

The writs of prohibition and certiorari are issued more or less on similar grounds.

1. Absence or excess of jurisdiction: The writ if Prohibition prohibits an authority from

exercising a jurisdiction not vested on it. When there is absence of jurisdiction or total lack of
jurisdiction an authority cannot act.

2. Violation of fundamental rights: When an authority acts in violation or infringement of the

fundamental rights of a person, a writ of prohibition can be invoked.
3. Violation of the principles of natural justice: All authorities are to observe the principles of
natural justice while exercising their powers. If an authority fails in this regard the decision of
that authority is liable to be quashed through the writ of prohibition.

4. Statutes or laws against the constitution: When an authority tries to act under a statute or a
law which is unconstitutional, the writ of prohibition can be applied.

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 final order is passed by the inferior court 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.
 

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.

Illustration: 'A' is a public servant. He omits his duties with which 'B' suffers. 'B' can file an
application for the writ of mandamus against the public office in which 'A' works.
Conditions required for mandamus

 The petitioner must have the right to compel the performance of the duty. This writ
cannot be invoked if the person complaining has no legal right.

 There must be public duty. That duty must be mandatory and not discretionary. But at
the same time when a discretionary power is abused or improperly exercised, that
would be treated as non exercise of discretion and the court can command the
authority to exercise the discretion in accordance with law. The petitioner must have
made a specific demand for the performance of the duty and the authority must have
made a refusal to perform. Then only a writ of Mandamus can be sought.

 A civil liability arising under a contract cannot be enforced through mandamus. The
grant of mandamus is discretionary. If there is unreasonable delay in filing the petition
or if there is an adequate alternate remedy mandamus may be refused by the court.

Grounds:

i. The right of the petitioner must be infringed.

ii. There must be no effective remedy.

In the case of Vijaya Mehta V. State of Rajasthan, the petition was filed to appoint the
commission to look after the climate change. The court held that as this duty was
discretionary but not mandatory the writ of mandamus cannot be issued.

iii. The public servant must have failed to omit the duty which he is supposed to do so or
mandatory duty.
 The courts can refuse to issue the writ of mandamus when:

o The right of the petitioner has been lapsed

o The duty has been already fulfilled by the concerned authority.

In the case of Bhopal Sugar Industries Ltd. v. Income Tax Officer, Bhopal , 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. It was held by the Supreme Court that the Income
Tax officer had a mandatory duty to fulfill 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

In order 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 , it was held that Ratlam Municipality was a
statutory body which owed duties to the public such as removing night soil and rubbish,
removing any public nuisance etc. and therefore the Writ of Mandamus was issued by the Court
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.

Exceptions are following

1. The writ of mandamus cannot be issued against the president or the governors of states.
They cannot be insisted to exercise powers and to perform duties.
2. The writ of mandamus cannot be issued against the state legislature to prevent it from the
execution of a law alleged to be violative of the provisions of the constitution.

3. The writ of mandamus cannot be issued to an officer who acts on the orders of his superior

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.

1. Illustration: A who is a private citizen and has no qualifications for the post of sub-
inspector assumes such office. Here a Writ of Quo Warranto can be issued against A to
call into question his authority on which he has taken the control of the office of sub-
inspector. 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:
 i. The office which has been wrongfully assumed by the private person is a public office.

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

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

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 of private nature, this Writ cannot be issued by the Court. This view was held by the court in
the case of Niranjan Kumar Goenka v. the University of Bihar, Muzzfarpur, 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, an application for the
Writ of Quo Warranto was made by the petitioner in the Patna High Court against the Working
Committee of Bihar Raj Arya Samaj Pratinidhi Sabha which was a private body. The court
refused to issue the Writ because it was not a public office.