Justice P.N. Bhagwati in the landmark judgment of the Supreme Court in S.P. Gupta v. Union of India, 1981 said “The Supreme Court and the High Courts have been constituted the protectors and guarantors of the fundamental rights, and it is their solemn duty to protect the fundamental rights zealously and vigilantly.”
The framers of Constitution incorporated the fundamental rights, but without remedy, rights are mere words written on a piece of paper. The remedies for these fundamental rights were instituted as Article 32 and Article 226 of the Constitution of India.
WHAT IS A WRIT?
A Writ is a special type of Application/Petition which is filed before the Hon’ble High Court or Hon’ble Supreme Court of India to enforce the infringed fundamental or legal rights of a citizen and bunch of fundamental rights granted to non – citizens also. There are five kinds of Writ as per Constitution of India to deal with different natures of grevieances of citizens and non-citizen.These are in natures of Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo warranto. The Writs can be issued by following proper court rules & procedures.
TYPES OF WRITS
As already mentioned in above paragraph, there are five kinds of Writs of different natures which are Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto.
(For reading about how to identify which Writ would be applicable, please visit www.ahrklegal.com )
WRIT OF HABEAS CORPUS
The Habeas Corpus is a Latin Maxim which means “To present the body”. This Writ can be issued in a situtaion where there is unlawful Detention/Arrest of a person. It can be issued even by admitting a informal letter received by Hon’ble Courts. The main purpose of this Writ is to protect the Fundamental right engraved under Article 21 of Part III of Constitution of India.
Hon’ble Justice V. R. Krishna Iyer in Sunil Batra v. Delhi Administration (1979) said “This writ petition originated, epistolary fashion in a letter by a prisoner, Batra, to a Judge of this Court … the letter was posted on the Bench to be metamorphosed into a habeas proceeding … The essence of the matter is that in our era of human rights’ consciousness the habeas writ has functional plurality and the constitutional regard for human decency and dignity is tested by this capability.” And hence ruled out that a mere informal letter or postcard showing gross violation of Article 21 can be admitted as Writ Petition in nature of Habeas Corpus.
The best part about this Writ is that it is an only type of Writ which can be issued against Private Indiviuals/entities also.
WRIT OF MANDAMUS
The Mandamus is again a Latin Maxim having meaning as “To Direct / To Command.” It is a nature of Writ which is issued to the public bodies under circumstances where public bodies is not performing/ following the duties they are bound to perform/follow by any law/rule/regulations e.g. it is a settled law that a government school have to grant “School Leaving Certificate” in the names of children who wants to study elsewhere. Now if that government school is not granting certificates to the parents of concerend children within prescribed time and after following the procedure, A Writ of Mandamus could be issued in the name of that specific government school praying the Hon’ble Court to direct the school to issue the “Schhol Leaving Certificate.”
Hon’ble Supreme Court of India in its landmark judgment of “Praga Tools Corporation v. C.A. Imanual & Ors. (1969) 1 SCC 585” pronounced that Writ of Mandamus can be issued against the performance of a public duty in the performance of which the petitioner has a sufficient legal interest. Also if a private body is performing any duty of a public nature then Writ of Mandamus lies against them also.
WRIT OF PROHIBITION
The word prohibition have a meaning “To Stop”, the Writ of Prohibition is issued against any public body if the public body is performing an act which is ultra vires in nature and by performing so, the public body infringes the Fundamental right/s of a person or a group of persons e.g. it is well known that a public body can exercise its power within the jurisdiction they are granted by delegation. If that public body exercise its powers beyond the jurisdiction, a person whose Fundamental rights are infringed by the actions of that public body can file the Writ of Prohibition nature to stop the public body from exercising its powers ultra vires.
Hon’ble Supreme Court in its leading judgment of East “India Commercial Co. Ltd. v. Collector of Customs, Calcutta (1962) 3 SCR 338” observed that“The writ of prohibition is issued to a court or a quasi-judicial authority forbidding it to continue proceedings therein in excess of its jurisdiction or in contravention of the laws of the land.”
WRIT OF CERTIORARI
The writ of certiorari is basically a safeguard against public authorities going beyond their powers. Today, it is not only the courts that make decisions affecting people’s rights; a lot of it is done by government departments, licensing boards, service commissions, and other public bodies. These authorities are expected to act fairly, give people a proper chance to be heard, and decide matters strictly within the powers given to them by law. But when they cross those limits e.g. when a licensing body cancels someone’s permit without hearing him, or a disciplinary authority imposes punishment without following the rules, the superior courts can step in through certiorari and strike down such unlawful orders.
This writ is corrective in nature. It does not stop a public body before it acts (that is the role of prohibition), but it sets right what has already gone wrong. The idea is simple public bodies cannot behave as if they are above the law.
Hon’ble Supreme Court in its Judgment in “T.C. Basappa v. T. Nagappa (1954 SCR 580)” provided the principle on which Certiorari works which is “Certiorari is issued when a tribunal or authority acts without jurisdiction, in excess of jurisdiction, or in violation of natural justice.”
WRIT OF QUO WARRANTO
The Writ of Quo Warranto is like a check on public offices. Quo Warranto is a Latin Maxim holding meaning of “By what authority are you holding this position?” This writ is issued to make sure that nobody takes up a public office without legal right. Public offices include positions in government departments, statutory authorities, universities, corporations, or regulatory bodies. These roles affect people’s lives, so it is important that only qualified and legally appointed persons hold them e.g. if someone is made chairman of a government corporation, vice-chancellor of a university, or a member of a regulatory commission without meeting the rules, any citizen can file for Quo Warranto. The court will then ask the person to prove their authority. If they fail, the court can remove them from the office.
Hon’ble Supreme Court in “University of Mysore v. C.D. Govinda Rao (1965) 1 SCR 404” stated that “a Writ of Quo Warranto can be issued to challenge the authority of a person holding a public office without legal entitlement.” In this case, the Court emphasized that an individual must possess the prescribed qualifications to hold a public office, and the absence of such qualifications renders the appointment invalid.
CONCLUSION
The Constitution of India vests power in Hon’ble Supreme Court and as well as Hon’ble High Court to issue Writs against the appropriate bodies which violates the aggreived person’s fundamnetal rights. These both Courts are the gurdians of Fundamental rights, one can directly approach to Hon’ble Supreme Court to ascertian that ultra vires act of public bodies would not curtail the sacred fundamental rights of a citizens as well as non-citizens.Yet Article 32 empowering Hon’ble Supreme Court posses limited juridisction to treat a matter involving fundamental rights only but Article 226 empowers Hon’ble High Court to enforce fundamental rights