The Constitution of India confers the power of issuing writ upon the High Courts in India under Article 226 of the Constitution. It allows the courts to issue formal orders to the authorities in case of violation of fundamental rights by the government authorities or government bodies. Types of writs mentioned in the Indian Constitution:
- Habeas Corpus
- Quo Warranto
Writ of Habeas Corpus is a legal remedy for the person illegally detained by the government authorities or some individual. This writ provides forÂ a prompt and effective remedyÂ against any restraint which is illegal and unreasonable, and its sole purpose is enforcement of personal freedom and right of liberty.
Who May Apply â€“ the courts in various cases has ruled that the writ petition of Habeas Corpus can be filed by the prisoner or detainee himself/herself or by any other person who is aware of the merits of the case, and is acquainted with the facts and circumstances and has recognized interest in moving of such application in front of the court. The Supreme Court in the case of Vinoy Kumar vs. the State of U.P. and Ors (2001) 4 SCC 734, ruled that the petitioner filing the writ of habeas corpus must be having bona fide locus standi in filing such petition otherwise such petition will be dismissed for lack of locus standi.
Territorial Jurisdiction â€“ can be filled in the High Court within whose jurisdiction the cause of action arises, and the High Court has authority to give the order to the respective government body.
The writ of Mandamus is a legal remedy for the courts having writ jurisdiction to issue orders to the subordinate courts, government authority or a public corporation to carry out or restrain from carrying out any duty which the respective body is obliged to perform under the law.
Who May Apply â€“ the petitioner applying for issuance of writ of Mandamus must be able to prove that he/she has the legal right to compel the respondent to carry out or refrain from carrying out the specific duty and such duty should be having public nature and compulsory to be performed or refrained from performing under the law.
Against Whom â€“ in the case of the Centre for Policy Research Vs. Brahma Chellaney and Ors.Â (2010) ILR 5 Delhi 87 ruled that the writ of Mandamus can also be against the entity not classified as a state under Article 12 of the Constitution for enforcement of a public function.
The writ of Prohibition is issued by the High Court or the Supreme Court to the subordinate court or the tribunal to prevent them from exceeding their jurisdiction which hasnâ€™t been vested upon them under the law.
Against whom â€“ in the case of Brij Khandelwal Vs. Union of India AIR 1975 Delhi 184, the court ruled that the writ of Prohibition can only be issued against the judicial or quasi-judicial bodies and any other authority carrying out an executive function.
When it May be Issued â€“ the court in the case of Thirumala Tirupati Devasthanams & and vs. Thallappaka Ananthacharyulu & Ors. ruled that the writ of Prohibition can be issued only in rarest of the rare case where the inferior Court or Tribunal (a) proceeds to act without or in excess of jurisdiction, (b) proceeds to act in violation of rules of natural justice, (c) proceeds to act under law which is itself ultra vires or unconstitutional, or (d) proceeds to act in contravention of fundamental rights.
The writ of Certiorari is issued by the High Court or the Supreme Court to the judicial or quasi-judicial authorities when such authority passes the order without having jurisdiction in such case, exceeding the jurisdiction conferred upon it, or when it violates the principle of natural justice. But such writ cannot be issued if any of the above authority passes a wrong decision. In the case where the court finds that the subordinate authority had the jurisdiction to pass such order, but such order is wrong then only other provisions provided under the law can be utilized, but the writ of Certiorari cannot be issued by the court. The petition for issuance of a writ of Certiorari can be filed only by the party to the case in which such order was passed by the judicial or quasi-judicial body which didnâ€™t have jurisdiction to pass such order.
The writ of Quo Warranto is issued by the court to inquire into the legality of the claim made by the person who is holding a public office. The writ mainly orders the person to whom it is directed towards to show what authority he/she has to exercise some power, or right they claim to hold. In order to get the writ of Quo Warranto issued the applicant has to prove that a public office or public officer is acting in a manner which he/she doesnâ€™t have any legal backing as per the law.
Who May Apply â€“ the court in the case of Rajendarkumar Chandanmal v. Government of State of M.P. and others AIR 1957 MP 60 ruled that the applicant neither needs to have any specific interest in the filing of such petition nor need to have infringement of any legal right for filing for issuance of writ of Quo Warranto as itâ€™s a discretionary writ.
General rules governing Writ petitions
The law nowhere specifies any specific time limit for the courts within which they are required to dispose of a writ petition but usually the time limit for disposing of writ petitions is 90 days which can be extended by giving valid reasons for the same. The writ of Habeas Corpus being important, therefore the court is expected to dispose of such writs on priority based on the facts of such writs.
The rule of Res Judicata applies while filing writ petitions and the writ petition once disposed of by the court cannot be filed before the same court based on the same facts again. But in case the material facts of the petition change then the writ petition can be filed again in the court.
(This article was submitted by Lavanay Gupta, a 2nd year student of law at Jindal Global Law School, as a part of B&B Associates LLP’s winter internship program.)