One of the most important aspects, Fundamental Rights are provided under Part III of the Indian Constitution. If summed up together, they are Right to Equality, Right to Freedom, Right against Exploitation, Right to Freedom of Religion, Cultural and Educational Rights and the Right to Constitutional remedies.
Whenever a person has something of value, they first think of how to protect it. Just like that, Fundamental Rights (FR) are of great value and must be protected. To safeguard the rights, some remedies have been given to the people by the Constitution. Whenever these rights are violated, one can knock the door of the High Court (HC), or the Supreme Court (SC) through Writ Petitions.
What Are Writs?
Whenever a Fundamental Right is violated, one can file a writ petition seeking the court’s help. After reviewing this petition, the court issues a writ. A writ is a formal order given by the court. It could be in the form of warrant, order, direction etc. Writs were borrowed in the constitution from England, where they had developed and thus collected systematic technicalities. Writs are a constitutional guarantee provided to its people through two important articles. The aggrieved party can file a writ petition under Art.32 and Art.226 of the Constitution.
Art.32 relates to SC. It stands for the Right of Constitutional Remedies. Itself being a Fundamental Right, it has dual properties. The SC can issue writs in matters concerning of FR only.
1) If an individual’s FR is being violated, he/she can directly approach the SC by taking the help of the remedy provided under Art.32.
2) It empowers the SC to issue 5 types of writs for the protection of Fundamental Rights.
It is because of this feature that the SC is called as the ‘Protector and Guarantor of Fundamental Rights’.
The powers given to the SC are also given to the HC under Art.266. The aggrieved party can approach the HC in case of a violation of their FR. The HC can issue writs in “any other purpose” in addition to fundamental rights. An example can be issuing of a writ against a decision given by an administrative tribunal. However, the remedy under Art.266 is not a fundamental right.
Further, it is not mandatory to follow the hierarchy of courts while filing writ petitions. That is, it is not mandatory to approach the HC before approaching the SC. However, in the case of, Union of India (UOI) vs Paul Manickam and Anr., it was stated that while directly petitioning to the SC, the reason for not approaching the HC first, had to be given.
Who Can File A Writ Petition?
First, any person whose Fundamental Rights have been violated can file for a writ petition.
Secondly, under Public Interest Litigation, public-spirited writ petitions can be filed by an individual even when personally his/her rights are not violated.
5 Types of Writs
There are 5 types of writs that a court can issue, namely, Habeas Corpus, Mandamus, Quo Warraranto, Certiorari and Prohibition. These are Latin terms.
This first type of a writ means “to have a body of” or in other words, ‘to produce a body’. This is one of the most important and most used writs. This writ is used when one believes that the detention or imprisonment of a person is unlawful. The person in custody or his family and friends can file a petition in any court. The Court then may move forward to ask the authority who has held the person, to bring him/her before a court to decide the validity, justification and the jurisdiction of the authority in detaining or imprisoning that person. Art.19- Art.22, embody the right to freedom. Art.22 deals with the imprisonment of a person. Under this article, there are given various grounds under which the custody should go through. Such as, the person should know the reason if imprisonment and be produced in front of the magistrate in 24 hours of their arrest. If the Court finds that the basis of detention is unreasonable, then the detention ends and the person should be released on immediate effect. A Habeas Corpus can be invoked not only against the state but also against any other person who is holding any person in custody.
The conditions under which Habeas Corpus cannot be used are:
- Detention is lawful.
- Contempt of Court
- If detention is outside the jurisdiction of the court
- Detention is by a competent court.
In the case of Rudul Sha V. State of Bihar, Sha was imprisoned in 1953 for murdering his wife. Even after his acquittal in the year 1968, he was not released from imprisonment for another 14 years. When the media heard about his plight, a writ of Habeas Corpus by PIL was filed. Although Sha was released due to media influence before the hearing, he sought relief and compensation from the court. After gathering information from the State authorities, it was held that the extra 14 years was unjustified and thus, Sha received compensation and relief from the court.
Mandamus means, “We command”. Through this writ, the court can issue orders commanding any authority to do their public duty as imposed to it by the law. When a body vested with power or authority to perform something, refuses to perform, the writ of mandamus can be used to make the body perform its function. The writ of mandamus can be issued against a public body, a public official, university, tribunal, an inferior court or the government. The main aim of this writ is to keep public authorities within the limit of their jurisdiction and to exercise its public functions. Unlike the writ of Habeas Corpus, Mandamus cannot be issued against a private individual. The main condition to exercise this writ is that there must be a ‘public duty’ involved.
The conditions under which this writ cannot be used are:
- The duty in question is not mandatory, or in other words, the duty is optional.
- When the instruction is non-statutory (is not provided under law).
- It cannot be issued against the president, state governors or any high court chief justice.
In the case of, Bombay Municipality V. Advance Builders, the court gave directions to the municipality through the Writ of Mandamus. The municipality had failed to act on their town planning scheme which was approved by the government. The court thus commanded the municipality to finish its duty.
This Latin term means “by what authority”. This writ extends to holders of a public position, i.e., public officials. By using this writ the court can ask any public official by what authority they have assumed the post in question. Simply stating, when a public official’s post is in question, the court uses this writ to ask, under what authority is the public officer holding this post. The official is asked if they have the eligibility criteria for that post. If it is found that the official has been holding the position illegally or by force, the court has the full authority to render the post vacant. It can even be used for officials who have been holding their office post-retirement age.
The conditions of a Quo Warranto are:
- The writ cannot be issued against those working under private sector.
- The office must be created under a statute or by the constitution itself.
- The office in question must hold a substantive role.
In the case of, Purshottam Lal Sharma vs State Of Rajasthan And Ors., a petition for the writ of Quo Warranto was made. This case questioned the position of the then Chief Minister of Rajasthan, saying that he had been elected into the house invalidly. The court dismissed the petition because it questioned the position of the CM in the assembly. It said that if the CM had gained the post without authority, then it would have been unconstitutional. However, the office of the CM is created by the constitution and is the member of the assembly is not its purpose. Thus, the court dismissed the petition saying that the election of CM into the office should have been questioned through an election petition.
Certiorari means, “To be certified”. This writ is essentially used for review of judgements for their validity or legality. The SC and the HC can ask, through this writ, any lower courts or quasi-judicial bodies to submit their records for review by the higher court. If the judgments are found to be invalid or illegal, the higher court has the authority to quash the judgements. This would mean that the judgements are no longer of value and should not be followed. The main reason this writ came into being is to prevent excess power by authorities and for general reedy as control over judicial and quasi-judicial bodies. It is a corrective writ.
When can the judgements of a lower authority be illegal?
- Excess of Jurisdiction or the Lack of jurisdiction
- Jurisdiction is un-constitutional
- The judgement violates the principle of Natural justice.
In the case of, A.K Kraipak v. Union of India, the higher court quashed the judgement of a quasi-judicial body because it went against the principle of natural justice. The case relates to the selection to Indian Forest Service from the employees of Forest Department for the State of J&K. The selection committee included a person who was among the candidates for the service. Thus, the other candidates filed a certiorari writ petition to the court. The court said in the aspect, “You cannot be the judge of your own case”, and hence quashed the selection.
This means, “To forbid”. The easiest way to understand this writ is to see it in
comparison to the writ of certiorari. The phrase, “Prevention is better than cure”, is a way to see these two writs. While cure would be the writ of certiorari, prevention is the writ of prohibition. Instead of correcting a wrong after it is done, it is always better to stop it. This writ is popularly known as “Stay order”. Higher Courts can use this writ to intervene between the act of a lower authority when it exceeds its limits or powers. In other words, this writ is issued to a lower authority to prohibit it from continuing the proceedings of the particular case. It is used when an inferior court or quasi-judicial bodies:
- Proceed to act in excess or complete lack of jurisdiction
- Violate the principle of natural justice
- Act in an unconstitutional manner
- Contravene FR.
In the case of, S. Govinda Menon vs The Union of India & Anr, the SC explained the writ of prohibition. The main motive of the writ is to restrain inferior authorities from exceeding their jurisdictional limits. It also lies when principles of natural justice are not followed. It is not for correction of the course of proceeding, but to stop it completely.
Writs are a very important provision given by the constitution. The misuse of rights and liberties can be prevented by the effective working of these principles. It further highlights the importance of the judicial wheel of the nation. It keeps in check the three pillars of the nation, safeguards its people and promotes ease of access to Justice. The maxim, “ubi jus ibi remedium” meaning, “where there is a right there is a remedy” is exercised gracefully through Writs. They thus stand as a very important element in India.
 Union of India (UOI) vs Paul Manickam And Anr., AIR 2003 SC 4622.
 Rudul Sha V. State of Bihar, AIR 1983 SC 1086.
 Bombay Municipality V. Advance Builders, AIR1972 SC 793.
 Purshottam Lal Sharma vs State Of Rajasthan And Ors. AIR 1979 Raj 18.
 S. Govinda Menon vs The Union Of India & Anr, 1967 AIR 1274