Writ: Provisions under the Indian Constitution

हिन्दी में पढ़ें:

We often hear that a certain court issued a writ to get some work done, or to stop some work, or someone filed a writ petition in the court against some government authority. So, what is this writ or writ petition, when is it used, where are its provisions given in the law, etc.? Let us understand it in this article.

A writ is a constitutional remedy that protects the legal system of the state (country) by ensuring the proper functioning of the law. If an authority does not perform its duty, the appropriate court has the right to issue a writ against it.

What is Writ?

A writ is a constitutional remedy in the form of a formal written order issued by the appropriate court. In India, a writ can be issued by either the High Court or the Supreme Court. Article 226 of the Indian Constitution empowers the High Courts to issue writs, and Article 32 of the Indian Constitution empowers the Supreme Court to issue writs. Writs under the Indian constitution include habeas corpus, mandamus, prohibition, quo warranto, certiorari, etc., and are also called types of writs.

What is Writ Petition?

A writ petition is a formal request to the appropriate court to issue a writ against an authority as per the provisions of law. In India, writ petitions are accepted by the High Court (under Article 226) and the Supreme Court (under Article 32). If the court is satisfied with the writ petition, it can issue a writ against the person against whom the petition is filed. Note: For writ, a writ petition is mandatory, except where the provision is given under the law.

Legal Provision of Writ

The legal provision of writs is given in Article 226 and Article 32 of the Indian Constitution, which are as follows:

Article 226(1) of the Indian Constitution empowers the High Court to issue writs.

• “Notwithstanding anything in article 32 every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.”

Article 32(2) of the Indian Constitution empowers the Supreme Court of India to issue writs.

• “The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.”

Types of Writs

Following are the types of writs given under the Constitution of India:

1. Habeas Corpus

Habeas corpus is a type of writ that is issued when someone is illegally detained. In simple words, it is issued to release a person who has been illegally or unlawfully detained.

Through this writ, the court directs the appropriate body to produce the person before the court who has been illegally detained, if the court finds that the person has been detained illegally or unlawfully then the court issues a direction to release him.

2. Mandamus

Mandmus is issued when a public authority does not perform its duties according to the provisions, and this writ is only issued against the public/government authority.

Through this writ, the court directs the authority to perform its duty against which the writ petition is filed if they are not performing its duty according to the law.

3. Prohibition

Prohibition is issued by a higher court i.e. High Court or Supreme Court to a lower court to not exceed its jurisdiction and not to do a specified act and it is unlike mandamus because in mandamus the court directs to act and in prohibition the court directs not to act but in both the cases the court directs to act as per the provision given under the law.

A prohibition is issued when the case is pending in the lower court so that the court does not exceed its jurisdiction.

4. Quo Warranto

Quo warranto is a type of writ issued by the appropriate court to prove by what authority a person is holding a government office. In simple words, this writ helps to protect the government office from unauthorized occupation.

Through this writ, the court calls the person against whom the writ petition is filed to explain by what authority he is holding the government office, if the court finds that the person has held the office illegally, then he can be removed from it.

5. Certiorari

Certiorari is issued when the lower court exceeds its powers or does wrong, for example, passing an order beyond its powers, not applying proper law, error of law, etc. This writ applies when the lower court has already taken action and its action needs correction. It is issued by the higher court, i.e. High Court and the Supreme Court, to the lower court.

Through this writ, the higher court asks the lower court under what authority it has acted beyond its jurisdiction, if the court finds that the lower court has acted beyond its jurisdiction without any authority, then the higher court takes appropriate action.

Read Also:

• Constitution of Criminal Courts in India (under BNSS)
• Power of criminal courts in India under BNSS
• Bail and its types under BNSS
• Crime: Elements and Stages of a Crime.

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Source:

• https://www.indiacode.nic.in/bitstream/123456789/19151/1/constitution_of_india.pdf