What is a Writ Petition ? Types of Writ issued.

A petition filed under Article 32 or Article 226 of the Constitution of India before the Hon’ble Supreme Court of India or The Hon’ble High Court of a State respectively for the protection of the Fundamental Rights or for the protection of any legal right as the case may be. 

A writ petition can be filed against a person or government authority throughout the territory of India within its territorial jurisdiction only Or outside the territorial jurisdiction in case of the High Court only if the cause of action arises within its territorial Jurisdiction It is said that the Supreme Court of India is the defender of the fundamental rights of the citizen of India. In the golden words of Sri. Dr. BR Ambedkar, the architect of the Indian Constitution, the right to constitutional remedies is the heart and soul of the Constitution. We feel pride to note that the right to the constitutional remedies is the fundamental right of a citizen. Article 32 falls under the Part-III of the Constitution, which gives right to move the Hon’ble Supreme Court for the protection of any fundamental right and is enacted for the protection of the Fundamental Rights. Article 12 to Article 35 are the Fundamental Rights of the Citizen. 

It is said that the Supreme Court of India is the defender of the Fundamental Rights of the citizens and for that it has wide and original powers. The Hon’ble Courts can issues five kinds of Writs for enforcing the fundamental rights of the Citizens. The five kinds of writs are as follows: 

1. Habeas Corpus. 

2. Mandamus. 

3. Prohibition. 

4. Certiorari. 

5. Quo-Warranto. 

We will deal with all the types of Writs one-by-one in detail in a separate blog later. 

However, here we will know in brief about the same. 

1. HABEAS CORPUS: The Latin meaning of the word ‘Habeas Corpus’ is ‘To have the body of.’ The full name of the writ is "Habeas Corpus" ad "Subjiciendum". Habeas Corpus means that you have the body. Habeas Corpus ad Subjiciendum means "that you have the body to submit or answer". 
This is a prerogative process for securing the liberty of the subject by affording an effective means of immediate release from unlawful detention whether in State or in private custody. By it, the Court commands the production of the subject and enquiries into the cause of his detention. If there is no legal justification for the detention the party is ordered to be released. The writ is applicable as a remedy in all cases of wrongful deprivation of personal liberty. The principal aim of the writ is to provide for a swift judicial review of alleged unlawful restraint on liberty of a subject. 
In Cox v. Hakes, (1990) 15 App Cas 506, Lord Halsbury made the following memorable observations: 
"For a period extending as far back as our legal history, the writ of habeas corpus has been regarded as one of the most important safeguards of the liberty of the subject. If upon the return to that writ it was adjudged that no legal ground was made to appear justifying detention, the consequence was immediate release from custody.".

The importance of personal liberty, the vigilance with which it must be protected and the care which must be taken to see that a person is not deprived of his liberty except by due process of law, are not in any way less because the person whose liberty is in question is not meritorious and has not the sympathy of the Court. In this connection, the following observations of Scrutton, L.J. in R v. Secretary of State for Home Affairs; Exparte O'Brien, (1923) 2 KB 361 be quoted:

"The law of this country has been very jealous of any infringement of personal liberty. This case is not to be exercised less vigilantly, because the subject whose liberty is in question may not be particularly meritorious. It is indeed one test of belief in principles if you apply them to cases with which you have no sympathy at all".

As early as 1627, in Darnel's case (1927) 3 State Trial Chief Justice Hyde asserted the power of the Court in the following memorable observation: 

"Whether the commitment be by the King or others, this Court is a place where the King doth sit in person, and we have power to examine it, and if it appears that: any man hath injury or wrong by his imprisonment we have power to deliver and discharge him, if otherwise, he is to be remanded by us to prison." 

Illegal detention is foundation of Court's jurisdiction, where at the time of the application there is no illegal detention, writ will not issue.

Lord Watson in Barnado V. Ford, 1892 App Cas 326, observed as under :

"The remedy of habeas corpus is, in my opinion intended to facilitate the release of persons actually detained in lawful custody and was not meant to afford the means of inflicting penalties upon those persons by them they were at some time or other illegally detained. Accordingly, the writ invariably sets forth that the individual whose release is sought, whether adult or infant, is taken and detained in the custody of the person to whom it is addressed and rightly so because it is the fact of detention and nothing else, which gives the Court its jurisdiction."

The nature of the writ is described in Halsbury Laws of England Vol. II Paragraph 1455 of Fourth Edition as under : 

"The writ of habeas corpus ad subjiciendum unlike the other writs of habeas corpus is a prerogative writ, that is to say it is an extraordinary remedy, which is issued upon cause shown in cases where the ordinary legal remedies arc inapplicable or inadequate".  "The writ is a writ of right and is granted ex debito justitiae. It is not, however, a writ of course. Both at common law and by statute the writ of habeas corpus may be granted only upon ground for its issue being shown. The writ may not in general be refused merely because there exists an alternative remedy by which the validity of the detention can be questioned."

As a matter of fact in Mrs. Elizabeth Dinshow v. Arvand M. Dinshaw, AIR 1987 SC 3, the Supreme Court of India did issue the writ even at the instance of a person who was not a citizen of this country. 

The writ of habeas corpus is of a remedial nature (and not punitive) and not intended to be used for inflicting punishment on the person responsible for the illegal detention; therefore, where the illegal detention has ceased, the writ cannot issue. 

And for the above reasons it is also known as the “Great Writ”. 

Short points to note about Writ of Habeas Corpus in India: 

• The writ of habeas corpus can be issued against both private and public authorities. 

• Habeas Corpus cannot be issued in the following cases: 

• When detention is lawful.

• When the proceeding is for contempt of a legislature or a court.

• Detention is by a competent court.

• Detention is outside the jurisdiction of the court.

• The writ of habeas corpus is of a remedial nature (and not punitive).

• The writ of habeas corpus is and not intended to be used for inflicting punishment on the           person responsible for the illegal detention; therefore, where the illegal detention has ceased,    the writ cannot issue.

• The writ of habeas corpus can be issued even at the instance of a person who is not a citizen of this country. 

• The writs will be issued only in clear cases. 

• Though a writ of right, it is not a writ of course.

• The writ of habeas corpus is also known as the “Great Writ”. 

 2. Mandamus: The literal meaning of Mandamus is ‘We command’. This writ is used by the court to order the public official who has failed to perform his duty or refused to do his duty, to resume his work. Besides public officials, mandamus can be issued against any public body, a corporation, an inferior court, a tribunal, or government for the same purpose. 

Writ of Mandamus is of English origin. In past, the King of England as the “authoritarian autocrat” of the administrative set-up, would frequently issue mandamus to his subjects during the day, ordering them to perform the public duty required of them.

It is difficult to pinpoint the beginning of the issuance of mandamus as a prerogative of the English royal court because it was never seen as an absolute judicial act but rather as an act of a quasi-judicial nature. The King of England employed mandamus to supervise (and supervise) the police (and other public authorities of the same type) in order to maintain social peace and public order at all levels of the State. Mandamus has been used since its inception. 

A writ of mandamus may be issued in favour of a person who establishes a legal right in himself. It may be issued against a person who has a legal duty to perform but has failed or has neglected to do so. Such a legal duty emanates by operation of law. The writ of mandamus is most extensive in regards to its remedial nature. 

The object of mandamus is to prevent disorder emanating from failure of justice and is required to be granted in all cases where law has established no specific remedy. The writ of mandamus is also available against inferior courts (High Court is not an inferior court) and other judicial bodies when they have refused to exercise their jurisdiction and thus resulting in the non-performing of legal duty. 

There are different purposes for which the writ jurisdiction through mandamus can be exercised. It can be issued for the violation of fundamental rights. The writ of Mandamus is issued only in rights and duty situation and the writ of mandamus will not lie to compel the Government authority to exercise a discretionary power. However, it can be granted where discretion or power is coupled with a duty to exercise the same in a given situation in law and facts and also where refusal to exercise is based on irrelevant and extraneous grounds. It may be noted that in certain situations where the statutory power conferred is apparently discretionary in terms, yet it may be considered as coupled with a duty to exercise such power. However, it is also to be noted that the Writ of Mandamus cannot be granted to enforce the contractual terms.

The Hon’ble Supreme Court of India in Bhopal Sugar Industries Ltd. V. Income Tax Officer, Bhopal, (1961) 1 SCR 474=AIR 1961 SC 182 [5 Judge Bench] held that the writ of mandamus may also be issued to compel inferior tribunal to follow superior tribunal and against the refusal of inferior tribunal to follow a superior tribunal destructive of basic principles of administration of justice.

Short points to note about Writ of Mandamus in India: 

• Unlike Habeas Corpus, Mandamus cannot be issued against a private individual. 

• A writ of mandamus may also be issued to compel inferior tribunal to follow superior tribunal and that against the refusal of inferior tribunal to follow a superior tribunal. 

• The writ of Mandamus is issued only in rights and duty situation. 

• Mandamus cannot be issued in the following cases: 

• To enforce departmental instruction that does not possess statutory force 

• To order someone to work when the kind of work is discretionary and not mandatory 

• To enforce a contractual obligation

• Mandamus can’t be issued against the Indian President or State Governors 

• Against a Judge of a High Court acting in a judicial capacity. 

3. PROHIBITION: The literal meaning of ``Prohibition'' is ``forbid''. A superior court issues a writ of Prohibition against a subordinate court to prevent the subordinate court from exceeding its jurisdiction or usurping a jurisdiction which it does not have. 

This Writ was originated in England as a way for the High Courts, including the King's Court and the English Court of Law or the Court of Common Pleas to keep the subordinante courts from going beyond their jurisdiction.

They were initially used against ecclesiastical courts (the courts dealing with Christian spiritual matters), but later also against the Admiralty and the Court of Appeals. Gradually, this writ became a common practice and part of the common law. This helped protect individuals from arbitrary judicial actions at an earlier stage. 

The scope of a writ of prohibition is narrower than that of a writ of habeas corpus or even mandamus. A writ of prohibition can only be issued to a judicial body, and not to administrative bodies. To probe a bit deeper into the scope of this writ, this writ is employed both when there is an excess of jurisdiction and when there is an absence of jurisdiction. Simply put, the writ is applicable when the courts overstep their jurisdiction and where the courts have no jurisdiction at all. The writ can also be issued when there is a ‘departure from the rules of natural justice. 

Short points to note about Writ of Prohibition in India: 

• Writ of Prohibition can only be issued against judicial and quasi-judicial authorities. 

• It cannot be issued against administrative authorities, legislative bodies and private individuals or bodies.

• Writ of Prohibition can only be issued when there is excess of jurisdiction or when there is an absence of jurisdiction or when there is a ‘departure from the rules of natural justice.

4. CERTIORARI: The literal meaning of the writ of ‘Certiorari’ is ‘To be certified’ or ‘To be informed.’. The term certiorari comes from the words used at the beginning of these writs when they were written in Latin certiorārī volumus meaning "[we wish] to be made certain". 

According to the common law of England, certiorari is a high prerogative writ issued by the Court of King’s Bench or Chancery to inferior courts or tribunals in the exercise of supervisory jurisdiction with a view to ensure that they acted within the bounds of their jurisdiction. To this end they were commanded to transmit the records of a cause or matter pending with them to the superior court to be dealt with there, and if the order was found to be without jurisdiction, it was quashed. 

When a superior court issues a rule on an application for certiorari to a lower court or tribunal or administrative bodies exercising quasi-judicial functions ordering them either to transfer a case pending with them to itself or quash their order in a case. It is incumbent upon the inferior courts or the quasi-judicial body to produce the entire record before the Court. It is issued on the grounds of an excess of jurisdiction or lack of jurisdiction or error apparent on the face of law. It not only prevents but also cures for the mistakes in the judiciary. 

This writ is a process to seek judicial review of a decision of a lower court or government agency. It is an English prerogative writ, issued by a superior court of England to direct that the record of the lower court be sent to the superior court for review. Certiorari will lie after a decision has been made by an inferior tribunal or authority even though it has become functus officio after taking the decision. The writ of certiorari will also lie when the inferior tribunal is proceeding without or in excess of jurisdiction but before it concludes the proceedings. A writ of certiorari is maintainable under Article 226 and 227 of the Constitution of India. However, an error of fact, even though apparent on the face of the record cannot attract certiorari.

Short points to note about Writ of Certiorari in India:

• Certiorari is a high prerogative writ.

• A writ of Certiorari is issued on the grounds of an excess of jurisdiction or lack of jurisdiction or error apparent on the face of law.

• A writ of Certiorari is a process to seek judicial review of a decision of a lower court or government agency.

• The writ of Certiorari can be issued against judicial and quasi-judicial authorities and against administrative bodies in exercise of its quasi-judicial functions.

• Certiorari cannot be issued if there is an error of fact, even though apparent on the face of the record. 

5. QUO WARRANTO:  Quo warranto is Latin for "by what warrant” (or authority). A writ of quo warranto is a common law remedy which is used to challenge a person's right to hold a public or corporate office. 

A state may also use a quo warranto action to revoke a corporation's charter. The Supreme Court or High Court may issue this writ to prevent illegal usurpation of a public office by a person. Through this writ, the court enquires into the legality of a claim of a person to a public office. It is to be noted that before a court grants a writ of quo warranto, it must be satisfied that the office in question is a public office and is being held by a usurper without legal authority. 

Lord Halsbury in the Halsbury Laws of England, 3rd Edn. Vol. II, P.145 has observed as: 

“An information in the nature of quo warranto took the place of the obsolete writ of quo warranto which lay against a person who claimed or usurped an office, franchise, or liberty, to enquire by what authority he supported his claim, in order that the right to the office or franchise be determined.” 

A writ of quo warranto can only be issued when the appointment is contrary to a statue or the statutory powers. No writ of quo warranto can be issued on the ground that even though the appointment is not contrary to any statutory rule, it is contrary to the administrative instruction as disclosed by the policy of the Government. A writ of quo warranto does not lie if the alleged violation is not of a statutory provision.

Short points to note about Writ of quo warranto in India:

• Quo-Warranto can be issued only when the substantive public office of a permanent character created by a statute or by the Constitution is involved.

• A writ of quo warranto does not lie if the alleged violation is not of a statutory provision.

• A writ of quo warranto cannot be issued against private or ministerial office.

• It is to be noted that before a court grants a writ of quo warranto, it must be satisfied that the office in question is a public office and is being held by a usurper without legal authority. 

General Knowledge about Writs in India: 

• Article 32 also empowers Parliament to authorise any other court to issue these writs.

• Before 1950, only the High Courts of Calcutta, Bombay and Madras had the power to issue the writs. • Article 226 empowers all the High Courts of India to issue the writs.

• Writs of India are borrowed from English law where they are known as ‘Prerogative writs’. 

Difference between the Writ Jurisdiction of the Supreme Court and of the High Court?

Article 32 of the Indian Constitution empowers the Supreme Court to issue writs;

Article 226 empowers the High Courts of India.

Writ under article 32 to be issued only enforce fundamental rights. 

Writ under article 226 to be issued to enforce fundamental rights but also for other purposes (The expression ‘for any other purpose’ refers to the enforcement of an ordinary legal right). 

Writ under Article 32 is a Fundamental right. 

Writ under Article 226 is not a Fundamental right. 

Writ under Article 32 can be issued against a person or government throughout the territory of India. 

Writ under Article 226 can be issued against a person residing, government or authority located within its territorial jurisdiction only.

Or,

Outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction.

Extra Fact: 

Lord Justice Atkin points out the difference between the writ of certiorari and the writ of prohibition. He says that both writs are of great antiquity and the only difference is that the writ of prohibition restrains the tribunal from proceeding further in excess of jurisdiction and the writ of certiorari requires the record or the order of the Court to be sent up to the King's Bench Division to have its legality inquired into and, if necessary, to have the order quashed. The learned Lord Justice further observes that he could see no difference in principle between certiorari and prohibition, except that the latter might be invoked at an earlier stage.

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