Thursday, 10 February 2022

WRITS UNDER INDIAN CONSTITUTION

 WRITS UNDER INDIAN CONSTITUTION 

BY NUPUR GARG

INTRODUCTION 

In India, the constitution has provided the Supreme Court with the power to issue the Writ under Article 32 of the Constitution. Under Article 32, when any Fundamental Right of a citizen is violated, that person has the right to directly approach the Supreme Court for the enforcement of his rights and the Court can issue the appropriate Writ for enforcing such right.

The power to issue Writs are also provided to the High Courts of India under Article 226. While citizens can approach the Supreme Court only when his Fundamental Right is infringed, the citizens also have the right to approach the High Court for the issue of Writs in other matters in which the fundamental rights are not violated.

TYPES OF WRITS

HABEAS CORPUS 

This writ is passed to secure the person who is wrongfully detained. Under this the court commands the detaining authority to present the detained person before the court and show the reasonable reasons of his detention. If the authority fails to provide valid grounds, then the court will order to release the person detained.

Illustration:

A is wrongfully detained by B, a police officer. A write to the High Court regarding the same. The High Court summons B with A and asks the grounds for detaining A. If B fails to provide a valid ground or justification for A’s detention, A will be free to go.

In Sheela Barse vs State of Maharashtra 

the writ petition was filed by the Sheela Barse a journalist. She interviewed 15 women prisoners in police lockup in the city of Bombay in May.11.1982. She finds 2 women were assaulted there, so she filed the petition. The court ordered and directed Dr (Miss) A.R. Desai, Director of college of Social Work - to investigate it. Finally, it was proved and the officials were punished and certain safety measures were taken to the safeguard of the women prisoners.

MANDAMUS 

Mandamus is another important 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 to abstain from doing an act. This order can also be given to an Inferior Tribunal, Board, Corporation or any other type of administrative authority.

This writ 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.

In Tata Cellular vs UOI case, the Supreme Court said that the court cannot interfere in the government freedom of contract, invitation of tenders and refusal of tenders. The court can interfere if the government decision was unfair, illegal and unreasonableness.

This Writ is useful for enforcing the duty which is required to be done by law or by the office which a person holds. For 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 fulfillment of this duty.

CERTIORARI

Certiorari is issued by a Superior Court to the inferior or subordinate courts, tribunal and other public authorities to submit the record of a proceeding for review. Generally the writ of certiorari was issued by the Supreme or High Court for quashing the order passed by inferior courts or subordinate courts, tribunals or other quasi judicial authorities.

Conditions For Issue of Writ of Certiorari:

  1. There must be a court, tribunal or an authorized person having a legal right to act judicially.

  2. Such court, tribunal or officer must act or passed an order without jurisdiction or in excess of judicial authority.

  3. If the order was against the principle of Natural Justice.

  4. If the order contains an error of judgement.

  5. If it is against the constitution or contravention to the fundamental rights.

QUO WARRANTO

The Writ of Quo Warranto is issued by the courts against a private person when he assumes an office on which he has no right. Quo Warranto literally means ‘by what authority’ and it is an effective measure to prevent people from taking over public offices.

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.

PROHIBITION

The literal meaning of ‘Prohibition’ is ‘To forbid.’ A court that is higher in position issues a Prohibition writ against a court that is lower in position to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. It directs inactivity.

Facts about Prohibition in India:

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

  2. It can’t be issued against administrative authorities, legislative bodies and private individuals or bodies.

If the court or tribunals does not have jurisdiction and it still decides the case, it will be an invalid judgement because for an act to be legal it should have the sanction of law. 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.

CONCLUSION 

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 which is given by the Courts for the performance of an act to the public authority which has a duty to perform it.


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