Overview

India being a democratic country, the role of the judiciary in a democracy is an important aspect. Democracy prohibits the authorities of the government bodies from utilising their powers arbitrarily. The rights of the citizens as well as the law of the land that is the Constitution of India must be safeguarded. For protecting as well as enforcing the rights and liberties provided in Part III of the Constitution of India, article 32 and 226 provides the right for moving to the Supreme Court and High Court in case of violation of those rights.

Jurisdiction and power with respect to the writ petition of the High Court have been discussed in this article. Further, the five types of writs namely, habeas corpus, mandamus, certiorari, prohibition, and quo-warranto have been discussed below with case laws briefly. The article also highlights the process of filing writ and by whom writ can be filed.

A writ can be defined as a formal written order which is issued, generally by an executive or judicial body having authority to do so. When a writ is issued by a judicial authority or court it is termed as a writ petition.  It is a legal document that is issued by the court to any individual, body, or entity for performing a particular act or cease to perform such actions as directed or ordered to. 

The literal meaning of writ is a command in the written form specifically issued by the Court. The judicial authority must possess the authority for issuing the writ petition.

Under Article 226 of the Constitution of India, the High Court is empowered to issue orders, directions as well as writs. The High Court is also empowered under Article 226(1) for issuing orders or writs or directing the Government to enforce the fundamental rights along with other legal rights within its own jurisdiction. The High Court also has the power, under Article 226(2), of issuing orders, directions as well as writs to cases beyond its local jurisdiction where the cause of action lies wholly or in part of their own jurisdiction. Under Article 226 (3) the High Court shall decide an application of the respondent of cancelling any interim order within two weeks of receiving application. Cancellation of the above-mentioned order shall be by a respondent against whom an injunction or stay has been passed under this article without furnishing a copy of the petition or being heard. Further, the powers of the High Court under this article are not derogatory to powers empowering the Supreme Court under Article 32.

The scope of article 226 was widened in Bandhua Mukti Morcha v. Union of India as compared to article 32. It was held that the High Court is empowered not only to issue orders, warrants, writs or directions but also enforce the fundamental rights and other legal rights.

Writs are the formal order in writing that can be issued by anybody having the authority to do so. Writs are generally issued by an executive or judicial body. The writ can be in the form of order, warrant, direction, or a summons. When an application for issuing such writ is filed before the authorised body such as the court, it is known as a writ petition.

Under the Constitution of India, five types of writs are available. Following are the five writs-

1. Habeas Corpus- The literal meaning of ‘Habeas Corpus’ is ‘to have the body of’. To release any individual from any lawful detention or imprisonment, this is used. In order to inspect the legality of the detention of such individuals, the writ is issued by the Court. On finding the detention of the individual to be unlawful the Court shall direct the release of the individual with respect to immediate effect. However, this writ cannot be granted in case of lawful detention which is made by the lawful authority.

2. Mandamus- The literal meaning of Mandamus is ‘we command’. In this writ, the direction is given to a public authority by the Court for performing its legal duties that have not been performed or refused to be performed. This writ can be issued against any public official, public organisation, tribunal, inferior court, or the Government by the Court having jurisdiction. The circumstances under which this writ can be issued are-

• The duty that is in question is discretionary or not mandatory;
• To perform any function which is non-statutory;
• The direction is such that violates other law or;
• Availability of any other remedy under the law.

3. Quo-Warranto- the literal meaning of this writ is ‘by what warrant’. When an individual holds a public office having no proper authority, this writ is issued by the Court against such individual. This writ is issued to prevent the individual from holding the office. The circumstances where the given writ can be issued are,
 

• A private individual occupies the public office wrongfully;
• Performance of public duty by the office
• the public office has been established by a statute

4. Certiorari- ‘to be certified’ is the literal meaning of this writ. Here, the court issues the writ to an inferior court for quashing the order of such court on the ground of wrongful order. Certiorari is described as both curative and preventive in nature. This writ is issued after the order by the inferior court has been given. It can be issued against a tribunal or quasi-judicial body as well for exceeding the limit of jurisdiction; causing a violation of principles of natural justice or any wrongful judgement.

5. Prohibition- as the name suggests, it means prohibiting. Unlike the certiorari, writ of prohibition is issued by the court to an inferior court or any tribunal or quasi-judicial body from prohibiting it from exceeding its jurisdiction. This writ can only be issued against a judicial body instead of any legislative or administrative body.

• A habeas corpus writ can be filed by an individual who is detained or by his friends or relatives. In ADM Jabalpur v. Shivkant Shukla, it was held that there can be no suspension of the Habeas Corpus writ during emergency.
• Any individual in good faith having interest in the performance of the duty by the public official can file a writ of mandamus. In Barada Kanta v. State of West Bengal, it was held by the court that there cannot be any issue of the writ of mandamus against a private person.
• It was held in Jabalpur Arya Samaj v. Dr. D Ram 7Ors, that the writ of quo warranto can be issued against an individual holding public office wrongfully.

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