A writ is an order by a court, directing lower courts to either do something or not do something. The concept of a writ was first developed by the Anglo-Saxons in England. The Monarch would issue letters which held orders and directions. Since then, writs have been incorporated by various countries into their legal systems. India has also done so, empowering the Supreme Court and the High Courts to issue such writs.
Prerogative writs under Indian law
Writs under Indian law are prerogative writs, a subset of writs, which are issued as an extraordinary remedy for aggrieved persons. The power to issue prerogative writs has been granted by the Constitution under Article 266 to the High Courts and to the Supreme Court under Article 32. It is a discretionary power which means that the High Court may or may not issue a writ.
Exhaustion of Alternative remedies before moving to High Court
A prerogative writ is also known as an extraordinary writ because it is only issued when alternative remedies have been exhausted. Although this restriction does not extend to the enforcement of Fundamental Rights. The court has laid down a precedent for the same.
This is known as the rule of exhaustion of remedies. The court has justified the same in the case of Union of India v. T.R. Varma AIR 1957 SC 882 and held that the rule of exhaustion exists so that a person is not allowed to circumvent existing statutory proceedings by approaching the High Court under Article 226
Further, the Supreme Court has provided in the cases of U.P. Jal Nigam v. Nareshwar Sahai Mathur 1 SCC 21 and Tigahur Paper Mills Co. Ltd v. State of Orissa 142 ITR 663, certain grounds on which the court may issue writs even if there are other remedies available. They are as follows:
When the remedies provided are not well suited to the situation at hand.
When the alternative remedy is inadequate to meet the needs of the case.
When there is an unreasonable amount of delay.
When there is complete lack of jurisdiction to try the case.
What are the different situations when writs can be issued?
The writ of habeas corpus can be filed in the High Court when a person has been illegally detained by any public authority. For example, if a person has been detained for an unreasonable amount of time and without just cause, he may file a writ of habeas corpus.
A writ of prohibition can be filed when a court acts not within the limits of their jurisdiction but beyond its prescribed limitations. For example, if a trial is being heard without the court having the jurisdiction to do so, a writ of prohibition may be filed.
The writ of Mandamus can be filed in when a person does not do the duty that they are prescribed to do by a statute, common law or custom. For example, when police refuse to take any action against a criminal, for no reason, a writ of mandamus may be filed.
Writ of Quo Warranto can be applied for in situations where a person who has acquired a public office does not have the right to do so. For example, the writ can be filed if the person holding the post of Advocate General does not have a legitimate right to it.
Writ of certiorari can be applied in situations where a court, on passing an order, has gone beyond their jurisdiction in doing so. For example, when the court passes an order for a case which they had no power to do so, the aggrieved can apply for the writ of certiorari.