Know about how to voice for your rights, legal bounds, and solve wrong conducts or mistakes by legal officials.
Writs! What do you mean by writs?
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, and subpoenas are common types of writ, but many forms exist and have existed.
Why are Writs needed?
It is a constitutional remedy available to a person to bring his complaint or grievance against any administrative action to the notice of the court.
Types of Writs:
- Writ of Habeas Corpus
- Writ of Mandamus
- Writ of Certiora
- Writ of Prohibition
- Writ of Quo-Warranto,
WRIT OF HABEAS CORPUS
It is also known as the “great writ”
Habeas Corpus means “Let us have the body.”. In other words, it means “you may have the body” which means that a person under arrest is to be brought before a judge or into court. It is an important writ for personal liberty. A person, who is arrested, can move the Court for the issue of Habeas Corpus.
It is an order by a Court to the detaining authority to produce the arrested person before it so that it may examine whether the person has been detained lawfully or not. It ensures that a prisoner can be released from detention if the Court is convinced that the person is illegally detained—that is, detention lacking sufficient cause or evidence.
The person under arrest or any another person on his behalf can file a writ in this. Formal and informal applications in respect of the writ is accepted by the Courts. It is only a procedural remedy and does not necessarily protect other rights, such as the entitlement to a fair trial. A person cannot make the application for the Writ successively to different judges of the same court.
In India, writs are issued by the Supreme Court under Article 32 of the Constitution of India and by the High Court under Article 226 of the Constitution of India.
Writ of Mandamus:
Mandamus means “We Command”. Mandamus is an order from a superior court to a lower court or tribunal or public authority to perform an act, within its duty. In short, it is an order to perform a duty which should have done but failed to do so. It is the discretionary power of a court. It is simply to ensure rights are ensured and the Government Authorities perform their duties.
The writ of mandamus can be granted when there is right to compel the performance of some duty cast upon the authority. It can also be issued to public authority to restrain it from acting under a law which has been declared unconstitutional. The petitioner has a right recognized by law.
The writ cannot be granted when
- Duty is not compulsory.
- Against a private individual, private organization since they are not entrusted with public duty.
- To enforce an obligation arising out of contract.
- Where the right of the petitioner has lapsed
Writ of Certiora
Certiorari means to be certified. The Writ of Certiorari can be issued by the Supreme Court or any High Court for retracting the order which is already passed by an inferior court and to properly investigate the matter and opinions objectively. A writ of certiorari is only granted when a Court has acted without or in excess of its jurisdiction and For correcting error of law. It cannot lie to remove merely ministerial act or to remove/cancel executive administrative acts. It is corrective in nature which means the purpose of this Writ is to correct an error.
When there is an error apparent on the record, it becomes a valid ground for issuing the Writ of Certiorari.
Certiorari can be resorted to only after the order or decision has been announced.
Writ of Prohibition
Writ of prohibition means to cease or to stop. it is also known as a ‘Stay Order’. When a lower court or a body tries to perform an action outside its jurisdiction, This Writ issued by a superior court to lower court or a tribunal to prohibit or forbidden it to do so. The Supreme Court can issue this Writ only where a fundamental right is affected.
In cases where the court is partly acting within its jurisdiction and partly outside it, the Writ will be issued against the act which is partly outside its jurisdiction. This Writ can be issued only when the proceedings are pending in the inferior court and not when an order has already been passed by that court. The Writ of Certiorari can be issued only when the order has passed.
Writ of Quo-Warranto
The word Quo-Warranto literally means “by what warrants?” and ‘by what authority’. It is issued restraining a person from acting in a public office to which is out of bounds. The business or the office in question is public office. The issue of summon is followed by legal proceedings, during which an individual’s right to hold an office or governmental privilege is challenged.
Grounds on what it is issued.
The nature of the duties which arises from this office is public. The person against whom the Writ is sought to be issued is in actual possession of the office and is using such office.
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