The constitution of India regulates the functioning of the nation. It can be considered a sack full of sections, laws, and orders that are made keeping the welfare of the public in mind.
There are many terms used in the Indian constitution that may not be known to the general public. However, having a good knowledge of the same is very important, as one needs to know their rights, and how India’s constitution functions. This not only makes citizens aware of the law and order but also helps produce future officers and lawyers.
One of the most questioned terms is “writs”. This article gives a detailed overview of writs and types of writs in India. Before we move on to the types of writs, let’s know what writs are.
What Is A Writ?
A writ is a formal, legal document that orders an entity or a person to perform or to cease performing a particular deed or action. Writs are usually drafted by courts, judges, or entities that have judicial or administrative jurisdiction.
Writs are an important part of common law and are issued after a judgment is passed, giving the ones involved in a suit the ability to carry out the judgment.
They can also be termed as written orders from the High Court or the Supreme Court that command constitutional remedies for the citizens of India against the violation of any of their fundamental rights.
Article 32 of the Indian constitution gives the Supreme Court of India the power to issue writs for the enforcement of rights, while the High Court has the same power through Article 226 of the constitution of India.
How Do Writs Work?
Many people ask “what is writs in the Indian constitution?”. It can be termed as an order or a document that can direct any form of action from a court. In simpler terms, writs give directions to a party from an entity that has administrative or jurisdictional power.
Writs were created to be a part of the English common law system and were primarily issued by Anglo-Saxon monarchs.
They were written decrees that comprised administrative commands written in layman’s terms, authenticated by a royal seal at the bottom of the document. On getting issued, writs advised courts of land-granting conveyances. In some cases, they were used to carry out judicial orders. While many writs were deemed open and read aloud in public, others were meant merely for the parties named.
They were later developed as a way to direct the orders of the authorities, both legal and otherwise, to perform certain actions. A modern writ also directs orders from higher to lower courts, from a court to an individual or an entity, or from a government entity/ agency to a party.
A writ can command a party to either take a specific action or stop it from doing it in a certain way. In today’s time, courts also use writs as a way to provide extraordinary relief or rights to appeal court decisions. They also give authorities, like sheriffs the right to seize properties.
Types Of Writs In the Indian Constitution
The Supreme court exercises its power to defend the fundamental rights of the citizens of India. There are 5 types of writs that the Supreme Court issues to enforce the fundamental right of the citizens. These types are as follows:
The Latin word ‘Habeas Corpus’ means ‘to have the body of.’ This type of writ is used to enforce the fundamental rights of an individual or a party against unlawful detention.
Through this writ, the Supreme Court or the High Court orders an individual who has arrested another individual to bring the body of the latter before the court.
Here are some facts about Habeas Corpus:
- he Supreme Court or High Court can issue this writ against public and private authorities.
- Habeas Corpus can not be issued in the following cases:
- When the detention is lawful
- When the proceeding is for the contempt of a court or a legislature
- When the detention is by a competent court
- When the detention is outside the jurisdiction of the court
The meaning of this type of writ is ‘We command’. It is used by the authorized court to order the public official to resume their work if they have failed to perform their duty or refuse to perform their duty. Apart from this, Mandamus can be issued against any corporation, public body, a lower court, government, or a tribunal for the same purpose.
Here are some facts about Mandamus:
- Mandamus can only be issued against a public official and not against a private individual
- Mandamus can not be issued in the following cases:
- To enforce departmental instructions that do not possess statutory force.
- To order someone to work when the kind of work is discretionary and not mandatory
- To enforce a contractual obligation.
- Mandamus can’t be issued against the President of India or State Governors.
- Mandamus cannot be issued against the Chief Justice of a High Court acting in a judicial capacity.
The word ‘Prohibition’ means ‘To forbid’. Herein, a court that is higher in position issues a Prohibition writ against a court that is at a lower position to prevent the latter from usurping a jurisdiction that it doesn’t possess or exceeding its jurisdiction. It can be said that this type of writ directs inactivity.
Here are some facts about Prohibition:
- Prohibition can only be issued against quasi-judicial and judicial authorities
- Prohibition writ cannot be issued against administrative authorities, private individuals or bodies, or legislative bodies
The word ‘Certiorari’ means ‘To be certified’ or ‘To be informed’. It is issued by a court that has a higher authority over a lower court or tribunal ordering them to either transfer a pending case with them to itself or to quash their order in a case. This type of writ is issued based on excess jurisdiction or lack of jurisdiction or an error of the law.
Here are some facts about Certiorari:
- Pre-1991: Certiorari is used to be issued only against judicial and quasi-judicial authorities. It cannot be used against administrative authorities.
- Post-1991: The Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting the rights of individuals
- It cannot be issued against private individuals or bodies and legislative bodies.
The word ‘Quo-Warranto’ means ‘By what authority or warrant’. This writ is issued by the Supreme Court or the High Court to prevent the illegal usurpation of a public office by an individual. The court enquires into the legality of a claim of an individual to a public office through this writ.
Here are some facts about Quo-Warranto:
- Quo-Warranto can be issued only when the substantive public office of a permanent character created by a statute or by the Constitution is involved.
- It can not be issued against private or ministerial offices.
The role of writs in administrative law is very important. They act as a channel to convey orders to parties, individuals, or public officials or bodies.
The constitution of India not only regulates the law and order of the country but also keeps people’s fundamental rights in check. There are many sections and articles that support the fundamental right of Indian citizens. However, many people are unaware of any such terms. One of these terms is ‘writ’.
A writ is an order or document that directs any form of action from the authoritative court. Usually, only the Supreme Court and the High Court have the power to issue a writ.
Many people ask “who can file a writ petition?”; any person who believes that their fundamental rights have been infringed by the state can file a writ petition.
Apart from this, there are 5 types of writs issued by the court, them being Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo-Warranto.
The role that writs play in the Indian constitution is vital. They are a legal channel through which authoritative courts order specific forms of action.
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