5 Important Writs of India in the point of view IPO exam
Four important writes of India are: 1. Habeas Corpus 2. Mandamus 3.Prohibition 4. Certiorari 5. Quo Warranto!
1. Habeas Corpus:
A writ of habeas corpus is in the nature of an order calling upon the person who has detained another, to produce the latter before the Court in order to let the Court know on what ground she/ he has been confined and to set him/her free if there is no legal justification for the imprisonment.
The words ‘habeas corpus’ literally mean ‘you may have the body’. The writ may be addressed to any person whatever, an official or a private person who has another person in his custody and disobedience to the writ is met with punishment for the contempt of the court.
The different purposes for which the writ of habeas corpus can be issued are: (a) for the enforcement of fundamental rights, (b) to decide whether the order of imprisonment or detention is ultra vires the statute that authorises the imprisonment or detention.
The writ of habeas corpus is, however, not issued in the following cases:
(i) Where the person against whom the writ is issued or the person who is detained is not within the jurisdiction of the Court, (ii) To secure the release of a person who has been imprisoned by a court of law on a criminal charge, (iii) To interfere with a proceeding for contempt by a court of record or by the Parliament.
Mandamus literally means ‘we command.’ It commands the person, to whom it is addressed to perform some public or quasi-public legal duty which she/he has refused to perform and the performance of which cannot be enforced by any other adequate legal remedy.
It is, therefore, clear that mandamus will not be issued unless the applicant has a legal right for the performance of that particular legal duty of a public nature and the party against whom the writ is sought, is bound to perform that duty.
The purposes for which a writ may be issued are as:
(a) For the enforcement of fundamental rights. Whenever a public officer or a Government has acted in a manner violating the Fundamental Right of a person, the court would issue a writ of mandamus restraining the public officer or the Government from enforcing that order or acting against the person whose fundamental right has been infringed,
(b) Mandamus can be issued by a High Court for various other purposes, e.g.,
(i) To enforce the performance of a statutory duty where in a public officer has got a power conferred by the Constitution or a statute. The Court may issue a mandamus directing him/her to exercise the power in case she/he refuses to do so.
(ii) To compel a person to perform his public duty where the duty is imposed by the Constitution or a statute or a statutory instrument,
(iii) To compel a court or judicial tribunal to exercise its jurisdiction when it has refused to exercise it.
(iv) To direct a public official or the Government, not to enforce a law that is unconstitutional.
The writ of prohibition is a writ issued by the Supreme Court or a High Court to an inferior court forbidding the latter to continue proceedings therein in excess of its jurisdiction or to usurp a jurisdiction with which, it is legally not vested.
The writ of prohibition differs from the writ of mandamus in the sense that while mandamus commands activity, prohibition commands inactivity. Further, while mandamus is available not only against judicial authorities but also against administrative authorities, prohibition as well as certiorari are issued only against judicial or quasi- judicial authorities.
The literal meaning of the word ‘certiorari’ is “to be more fully informed of”. Though prohibition and certiorari are both issued against Courts or tribunals exercising judicial or quasi-judicial powers, certiorari is issued to quash the order or decision of the tribunal while prohibition is issued to prohibit the tribunal from an ultra vires order or decision.
While prohibition is available at an earlier stage, certiorari is available at a later stage, on similar grounds. The object of both is to secure that the jurisdiction of an inferior court or tribunal is properly exercised and to see that it does not usurp the jurisdiction for which it does not possess an authority.
5. Quo Warranto:
Quo warranto is a proceeding whereby the court enquires into the legality of the claim which a party asserts to a public office, and to oust him/her from its enjoyment if the claim is found to be fake or invalid.
The conditions necessary for the issue of a writ of quo warranto are as follows:
(i) The office must be public and it must be created by statute or by the Constitution itself;
(ii) The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.
(iii) There has been a contravention of the Constitution or a statute or statutory instrument, in appointing such a person to that office.
The fundamental basis of the proceeding of quo warranto is that the public has an interest to see that an unlawful claimant does not usurp a public office. It is, however, a discretionary remedy that the court may grant or refuse according to the facts, and circumstances in each case. Quo warranto is thus a very powerful instrument for safeguarding against the usurpation of public offices.