Writs and provisions

The Constitution of India. | Library of Congress

Judiciary is one of the most powerful organs of Indian democracy. It has got the power to uphold the provisions laid down by the constitutions. In order to facilitate this, there are several provisions and one such provision is writs.

A Writ means a command of the Court to another person or authority by which such person/authority has to act or abstain from acting in a certain way. Thus, writs are a very essential part of the judicial power of the Courts.

In India, the supreme court and high courts can issue several writs according to the provisions of article 32 and article 226 accordingly. Further, the parliament can empower any other court to issue these writs. So far, no such provisions have been made.

The writs are borrowed from English law where they are known as ‘prerogative writs. They are so called in England as they were issued in the exercise of the prerogative of the king who has and is still, described as the ‘fountain of justice’.

Some Writs mentioned in the constitution are:

Habeas corpus

It is a Latin term which literally means ‘to have the body of’. It is an order issued by the court to a person who has detained another person, to produce the body of latter before it. The court then examines the legality and cause of the detention. It would set the detained person free, if the detention is found to be illegal. Thus, this writ is a bulwark of individual liberty against arbitrary detention.

Mandamus

It literally means ‘we command’. It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform. It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose.

Prohibition

Literally, it means ‘to forbid’. It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. Thus, unlike mandamus that directs activity, the prohibition directs inactivity. The writ of prohibition can be issued only against judicial and quasi-judicial authorities. It is not available against administrative authorities, legislative bodies and private individuals or bodies.

Certiorari

In the literal sense, it means ‘to be certified’ or ‘to be informed’. It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law. Thus, unlike prohibition, which is only preventive, certiorari is both preventive as well as curative. It is not available against administrative authorities, legislative bodies and private individuals or bodies

Quo warranto

In literal sense it means ‘by what authority or warrant’. It is issued by the court to enquire into the legality of claim of a person to a public office by a person. Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.

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