Writs

Writs

There are five types of writs in the Indian Constitution - Habeas Corpus, Certiorari, Quo-Warranto, Mandamus and Prohibition.

1. Writ of Habeas Corpus -

This writ literally means 'you may have the body'. This writ is issued to produce a person physically before the court who has been imprisoned or detained by the law and to set him free if there is no legal justification of his detention.

This writ can be issued against authorities of states or organisations or individuals.

2. Writ of Certiorari -

This writ literally means 'to be certified'. This writ is issued by the higher court to the lower court for quashing the order already passed by the lower court or removing a suit from the lower court to higher court for speedy disposal.

3. Writ of Quo-Warranto -

This writ literally means 'by what warrants?' or 'what is your authority'. It is a writ issued by the Supreme Court or High Court with a view to restrain a person or authority from holding a public office to which he is not entitled. The writ requires the concerned person or authority to explain to the Court by what authority he/it holds the office.

4. Writ of Mandamus -

This writ literally means 'we command'. It is a a judicial writ issued by the Supreme Court or a High Court as a command to an inferior court or tribunal or a person to perform a public or statutory duty.

5. Writ of Prohibition -

This writ is popularly known as 'Stay Order'. This writ is issued by a higher court to a lower court to stop proceeding in a case on the ground of over-stepping of jurisdiction or absence of jurisdiction. It is issued before the judgement or order is made in such cases.

Writs in the Indian Constitution

The Indian Constitution grants the Supreme Court the power to issues Writ Petitions. The Supreme Court issues Writ to enforce any fundamental rights under Article 32 of the Indian Constitution.

In India, the legal ability to issue a writ petition is firstly a provision i.e., the Right of Constitutional Remedies to each citizen. This right works as guarantor for all the other fundamental rights in the Indian constitution.

There are five different types of the writ petitions which one can file either before the High Court or the Supreme Court. They are:

1. Habeas Corpus
2. Mandamus
3. Prohibition
4. Certiorari and
5. Quo Warranto

Habeas Corpus

The courts use the writ of Habeas Corpus to find out if a person has been illegally detained. When proven yes, the court orders for their release. If you detain or restrain someone, then they or their surrounding members can file a writ of Habeas Corpus. Habeas Corpus means ‘Let us have the body’ in Latin. Through Habeas Corpus, the court shall thus summon the person to detained or imprisoned.

To file a Habeas Corpus petition

If you detain or arrest anyone, they can file a petition, as per the Habeas Corpus. Also, on behalf of the person, anyone can file the petition. The court shall issue the writ can against both public authority or an individual.

Mandamus

A higher court issues a writ of Mandamus to a lower court, tribunal or a public authority to perform an act which such a lower court performs. If a public official is not performing their duty, the court can order it them to do that. Mandamus means ‘we command’.

To file a Mandamus petition

The court can issue the writ of Mandamus against anyone. It can issue it even against the president or governor of the state, chief justice etc. Accordion the law, any public body or an individual shall file a writ petition when holding the legal rights to do so.

Prohibition:

A lower court or a body receives a writ of prohibition, also known as a ‘stay order’, to stop acting beyond its powers.

The court issues a writ of mandamus for any illegal activity. Whereas, it issues the writ of prohibition against the lower courts to condemn their inactivity in the concerned matter. The lower courts can be a such as magistrates and commissions, for inactivity in the matter of concern. The High Court and the Supreme Court can issue the Writ of Prohibition.

What are the differences between Mandamus and Prohibition?

Writ of Mandamus	Writ of Prohibition
Here, the court directs the activity performance to a lower court.	Hare, the Supreme Court orders the lower court to stop doing anything excessive of their jurisdiction.
One can issue this writ of mandamus against any administrative authority, judicial or quasi-judicial.	One can’t issue the writ of prohibition against the administrative authority but can issue against the judicial or quasi-judicial.

Writ of Certiorari:

The Supreme Court issues the Writ of Certiorari to a Lower Court or any other body. It is to transfer a particular matter to the higher courts than itself. The high court issues the Writ of Certiorari to the lower courts or tribunal. The high court issues when an error of jurisdiction or law takes place.

Writ of Certiorari is a curative writ.

Quo Warranto

Quo Warranto is by what warrant. The court issues the writ of Quo warranto to investigate the legality person’s or authority’s claim. The claim is to act in a public office even when not entitled to. The writ is only for the public offices and not private institutions/offices.

NOTE: Quo warranto meaning – a writ or legal action which shows on what warrant the particular person is held. 

Click here for a format of a writ petition in Supreme Court.

If your fundamental rights are violated, then you can file a writ. Generally, one shall file a writ petition against any of state and government agencies. However, one can also issue a writ against private authorities when proven to be discharging public functions.

How do the Writ Jurisdiction differ between the Supreme Court and the High Court?

The Indian Constitution empowers the Supreme Court and High Court to issue the writ under different articles such as Article 32 and Article 226. There are a few differences in the writ jurisdiction between the two courts. They are:

1. Purpose: The Supreme Court issues a writ to enforce fundamental rights. Whereas, the high court issues a writ to enforce the fundamental rights and also for any other purposes.
2. Territorial Jurisdiction: The Supreme Court issue a writ against any person or government in the Indian territorial jurisdiction. Whereas, the high court can issue the writ only against the person or the government within its jurisdiction. The high court can issue a writ only outside the jurisdiction if the cause of action has arisen from the inside of the jurisdiction.
3. Power: The Supreme Court cannot refuse to execute its power in issuing a writ. Whereas, the high court can refuse the power to issue a writ.

Habeas Corpus     - You should have the body

Mandamus            - To command

Certiorari               - To inform

Quo Warranto       - By what warrant

Prohibition            - a ‘stay order’, to stop acting beyond its powers.