Types Of Writs – Article - 32 & 226

INTRODUCTION

The writs are the Supreme Remedies available in England. Our Supreme Court and the High Courts are empowered to issue them, at their discretion. These are issued against the State as defined in art-12. There are five such writs. Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo-Warranto.

HABEAS CORPUS

Mean (to have the body)- Under this type of writs the nature of a call to the detaining authority to produce the detinue before the courts in orders to let the court know on what grounds the detinue has been detained. If there are no legal grounds for detention, the detinue is to be released. The writ may be addressed or authority who has detained.


1- The Supreme Court in K.Sanyal V/s District Magistrate Darjeeling, held that the production of the detinue before the court was not necessary.


2- S.C under art- 32(2)and the H.C under art-226 are empowered to issue the writ of Habeas Corpus for enforcement of Fundamental Rights.


3- Any person who has been detained or his next Friend may move the writ of Habeas Corpus. The burden is on the detinue to prove that the detention is without legal authority or with mala fides or in excess of authority.


4- According to the 44th Amendment, even during National Emergency art- 21&22 can’t be suspended.


5- Hence, this supersedes the Habeas Corpus case( ADM Jabalpur v/s Shukla)


MANDAMUS

Literally mandamus means ‘command’. It is a peremptory remedy. It commands him to perform some public or quasi-public legal duty. It is issued in India to the state (art- 12), against govt. and the public officers and others who are bound to do a public duty or statutory duty. It may be issued to court and other judicial bodies when they have refused to exercise their jurisdiction.


Object

To enforce the fundamental rights.

To enforce statutory duties.

To enforce an authority to perform a public duty imposed by a statute.


PROHIBITION

It is issued in a pending case. “Prevention is better than cure”.The writ is issued by the supreme court or High Court to an inferior court. The prohibition is against the inferior court continuing its proceedings in excess of its jurisdiction or usurping jurisdiction which is not legally vested in it. Hence, the inferior courts may be compelled to limits themselves to their jurisdiction. It is available against inferior courts, judicial and quasi-judicial authority.


Grounds

1)- The excess of jurisdiction,

2)- Violation of the principle of Natural justice.

3)-Lower court acting under an unconstitutional law.

4)-Violation of fundamental rights.

The only object of prohibition “to prevent the defect.”


CERTIORARI

This writ comes from certified ( to inform). this is issued by the S.C or H.C only to the inferior courts and tribunals. The conditions are,

It must have acted –

a)- without jurisdiction

b)- in excess of jurisdiction

c)- there must be an error apparent on the face of the record.

That is-

1- Improperly constituted tribunals.

2- Violation of natural justice or fundamental rights.


QUO- WARRANTO

It literally means “by what authority” this writ was issued in England and in India to persons who claimed or usurped any office, liberty or privilege belonging to the state. The object was to enquire by what authority such claim, was done and to decide who had the right to the office, etc.


CONDITIONS

The office must be public, statutory or unconstitutional. This writ is discretionary and, the court may refuse to issue if there is an alternative remedy. This writ is a very powerful instrument for safeguarding against appropriate of Public Office. This writ can be moved by any person.

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