ijalr

Trending: Call for Papers Volume 3 | Issue 2: International Journal of Advanced Legal Research [ISSN: 2582-7340]

Writs- Constitutional Remedies

Introduction

In the legal sense, a writ is a written order, issued by a court, ordering someone to do or stop doing something. It has authority, the power to enforce compliance. We all enjoy many rights such as the Right to life, Right to education, Right to Dignity, etc. but we can only enjoy these rights if they are protected. Thus, writs are the constitutional remedies to protect our fundamental rights.

In our Constitution mainly four articles mention the protection of our fundamental rights that is firstly, Article 13 of the Constitution of India, 1949 talks about judicial review, secondly, Article 359 of the Constitution of India, 1949 states that apart from the situation of emergency fundamental rights cannot be curtailed at any point of time, thirdly and lastly, Article 32 of the Constitution of India, 1949 and Article 226 of the Constitution of India, 1949 mentions the protection of fundamental rights. Part III of our Indian Constitution which deals with fundamental rights extends from Article 12 of the Constitution of India, 1949 to Article 35 of the Constitution of India, 1949. This simply means that Article 32 of the Constitution of India, 1949 which mentions the protection of the fundamental right is itself a fundamental right.

Kinds of Writs

Habeas Corpus 

It is a Latin terminology which means ‘to have a body or to produce a body’. This is the most powerful and most used writ. For instance, if any individual is illegally detained by the State then that individual himself or his relatives or his friends can use the writ of Habeas Corpus for the release of that individual. Whenever this writ is used then the Supreme Court or the High Court questions the State regarding the grounds for detaining that individual. If the ground is found unreasonable then that individual is immediately released from detention. This writ cannot be used under these four circumstances-

  • Detention is lawful.
  • Contempt of Court.
  • Detention is outside the jurisdiction of the Court. 
  • Detention is by a Competent Court. 

Rudul Sah v. State of Bihar (AIR 1983 SC 1086)
In this case, an individual who already completed his period of imprisonment was illegally detained in jail for extra fourteen years. The writ of Habeas Corpus was used and the individual was immediately released from detention and was awarded exemplary damages.

Mandamus

It is a Latin terminology that means ‘we command’. It is a kind of command which can be used on constitutional, statutory, non-statutory, universities, tribunals, etc body for performing their public duty. This writ is used to make a public official perform the public duty assigned to them. The only condition to apply this writ is that there should be a public duty.
Gujrat State Financial Corporation v. Lotus Hotels (AIR 1983 SC 848)
In this case, the Gujrat State Financial Corporation had an agreement with Lotus Hotels and stated that they will release their funds so that they can continue with their construction work. But, later they did not release the funds. So, Lotus Hotels appealed its case in Gujrat High Court which issued the writ of mandamus which stated that Gujrat State Financial Corporation has to fulfil its public duty as promised.

Certiorari

It is a Latin terminology which means ‘to be certified’. By using this writ both the Supreme Court and the High Court can command other lower courts to submit their records to them for review. Reviews are made to view whether the judgements delivered by the lower courts are illegal or not. Their judgements can be illegal when it is in excess of jurisdiction or lack of jurisdiction or unconstitutional jurisdiction or it is against the principles of natural justice. If their judgements are reviewed to be illegal then those judgements are quashed.
Gullapalli Nageswara Rao v. Andhra Pradesh State Road Transport Corporation (1959 AIR 308)
In this case, the writ of certiorari was issued to the lower courts and their judgements delivered were quashed. The cases which were reviewed were termed illegal and were held as quashed and invalid for future purpose.
A.K. Kraipak v. Union of India (AIR 1970 SC 150)
In this case, the writ of certiorari was issued to the lower courts and their judgements delivered were quashed. The cases which were reviewed were termed illegal and were held as quashed and invalid for future purpose.

Prohibition

There is a very limited difference between the writ of prohibition and the writ of certiorari. The proverb ‘Prevention is better than cure’ shows the perfect difference between the two writs. Here, prevention is related to prohibition which means ‘to forbid’ and certiorari relates to cure. If a judgement is delivered and it is illegal then to rectify that mistake it is quashed and writ of certiorari is issued which is termed as a cure but if the judgement is yet to be announced and to stop that mistake to occur then the writ of prohibition is issued. This writ can only be used until the judgemnent has not been delivered.

Quo Warranto

It is a Latin terminology which means ‘by what authority’. By using this writ the Courts can question any public official that by what authority that public official has assumed that particular public office. If it is found that the public office was defectively occupied then that public official has to immediately vacate the office. This writ can be filed by any stranger also unlike other four writs.
Article 32 and Article 226 of the Indian Constitution

Article 32 of the Constitution of India, 1949 mainly deals with two kinds of rights and powers. Firstly, it states that if any fundamental right of any individual is violated then that individual can directly approach the Supreme Court of India under Article 32 of the Constitution of India, 1949. Secondly, Article 32 of the Constitution of India, 1949 gives the Supreme Court of India the power to issue five kinds of writs to protect the fundamental rights of any individual. This feature and power of issuing 5 writs for protection of the fundamental rights of any individual give the Supreme Court of India a title as “Protector and Guarantor of Fundamental Rights”. Dr B.R. Ambedkar considered Article 32 of the Constitution of India, 1949 as the heart and soul of the Indian Constitution.

The power of issuing writs is also given under Article 226 of the Constitution of India, 1949. Under Article 226 of the Constitution of India, 1949 an individual whose fundamental right has been violated can approach any High Court of the country. This power has been restored in our Indian Constitution so that any individual can go to the highest authority with their concerned problems. But if any individual directly approaches the Supreme Court of India without going to the High Court then proper valid reasoning has to be stated.

Writs can be issued both under Article 32 of the Constitution of India, 1949 and Article 226 of the Constitution of India, 1949 but there there are two major differences in both the articles. Firstly, Under Article 32 of the Constitution of India, 1949 the power of issuing writs is only for the protection of fundamental rights. Whereas, Article 226 of the Constitution of India, 1949 writs can be issued for the protection the fundamental rights and for any other purpose such as administrative tribunals, etc. Secondly, as Article 32 of the Constitution of India, 1949 falls under the ambit of Part III of our Indian Constitution it is a fundamental right whereas, Article 226 of the Constitution of India, 1949 is not a fundamental right.
Conclusion

Hence, the 5 kinds of writs are Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo Warranto. These writs protect our fundamental rights. Fundamental Rights are properly protected the constitutional machinery, their Guarantee is safeguarded by Supreme Court and High Court. Generally, there are 4 main protections provided for Fundamental Rights – Article 13, Article 359, Article 32 and 226.
The Supreme Court and High Courts have wide power to issue Writs for the Protection of Fundamental Rights.

References

https://www.youtube.com/watch?v=3cG-0QeRF3o&ab_channel=FinologyLegal
https://blog.ipleaders.in/writs-under-the-constitution/
https://www.advocatekhoj.com/blogs/index.php?bid=7384dff0a8c57580980091140&bcmd=VIEW
https://www.vskills.in/certification/blog/types-of-writs-in-indian-constitution/
https://indiankanoon.org/doc/237570/
Image Source
Author: Sneha Mahawar, a law student at Ramaiah Institute of Legal Studies.

1 thought on “Writs- Constitutional Remedies”

Leave a Comment

Your email address will not be published. Required fields are marked *