WRITS – THE SAVIOUR OF FUNDAMENTAL RIGHTS


ABSTRACT

This concept has been introduced by Articles 32 and 226 of the Indian Constitution back to the time during the establishment of the very first supreme court of India at Calcutta before independence. A writ petition is an order directed by the superior court on the inferior court to either act or restrain from doing an act. Besides this, the writ is also issued to safeguard our fundamental rights. There are distinct writs provided for distinct grounds. By the writ jurisdiction of courts’, it is meant for the matter between the union and the other party. The significance of the writs lies in the fact that it keeps a check on the whole system covering it’s legal ambit.


INTRODUCTION


The expression ‘writs’ has been evolved from the English Common Law. It refers to an extra ordinary right granted by the superior court to the inferior court on the grounds of incapacity of inferior courts’ legal remedies. These writs are the prerogative remedies that are issued as extraordinary judicial remedies. These extra ordinary remedies of writ jurisdiction also require courts not to entertain matters wherein an alternative remedy is provided. Through these writs the power of Legislature and Executive is controlled. These writs issue an order to omit or fulfill any action needed on moment. This speedy procedure of these writs is due to its creation on the basis of principles of justice, equity and good conscience. Along with this, it also directs the courts in case of any kind of infringement of fundamental rights of public. The Indian Constitution allows the writs jurisdiction in the High Courts and the Supreme Court of India u/A 226 and A 32. The rights so guaranteed shall not be suspended except during the Proclamation of Emergencies as laid down in Article 359 of Indian Constitution.


ORIGIN AND EVOLUTION

The concept of Writs came into existence after passing of a royal order by King George III conferring all powers and privileges of King’s Bench of England in the 13th century under the Royal Seal. The order was presented before the King by the petition in council of exercise of extra judicial remedies into particular matters. These extra judicial powers were exercised by the King’s Bench only into the matters the Common Law Courts were not empowered with. These courts of Common Laws were proven powerless on some grounds to grant relief. Subsequently, the scantiness of remedies and failure to grant relieves became the cause of petition. Initially, power of issuance of writs was vested in the Crown and in the interest of the Crown. Apparently, these writs were availed to the ordinary citizens as well. A fixed charge was set for the filing of a writ that is why the filing was termed as ‘purchase of writ’. These writs were established to stable the royal supremacy, also, on ground of foundation of justice. Tracing the Indian origin of Writs, we should go back to the Regulating Act of 1973 under which the first apex court of India was established i.e., Supreme Judicature at Fort Williams, Calcutta (Kolkata) on October 22’ 1774 by Parliament of Britain. Similar charter also established the Supreme Courts of Madras and Bombay with cognitive provisions of 1801 and 1823 respectively. These powers were inherited to these courts. Letters patent were provided to these courts. Later, the high courts were replaced with the Supreme Courts of Calcutta, Madras and Bombay under High Court Act, 1861. The three presidency high courts were initially given the power to practice these writs, but not all high courts because subsequently, they didn’t possess as much capacity as these presidency high courts did. Special authorities conferred by the charter in these three presidency high courts were not mentioned in the letters patent of subsequent courts. It was only after the birth of Indian Constitution, the powers were handed to the high courts and the Supreme Court vis a vis writ jurisdiction.


ANALYSIS OF TYPE OF WRITS IN INDIAN CONSTITUTION

The Supreme Court has the power to issue order or directions for the enforcement of fundamental rights. This power is also exercised by the high courts. These are in the nature of writs of habeas corpus, mandamus, prohibition, quo warranto and certiorari.


WRIT OF HABEAS CORPUS

Of Latin origin, it translates in English as, ‘to have a body’. It is in nature of an order calling up a person who has detained another for an unjustified reason (whether in prison or private custody), commanding him to produce the detained person before the court to inquire about the reason of his detention. If the court comes to a decision of any sort of illegal confinement, it can order an immediate release of that person. The writ of habeas corpus may be addressed to any person, whether an official or a private person. This writ is one of the significant safeguards of liberty of a person. This writ also proves to be a powerful safeguard against arbitrary acts not only of private individuals but of the executive too. The habeas corpus petition becomes in fructuous if the detenu is produced before the Magistrate. This writ is available for various purposes, like;


✓ For the enforcement of Fundamental Rights. Article 21 of our constitution says that ‘no person shall be deprived of his life or personal liberty except according to procedure laid by law’. Hence, it’s the duty of court to set a person free who has been confined by any official or a private person on any illegal ground and to make sure that the writ meets with punishment for contempt of court.

✓ The writ of habeas corpus will also be issued in case of detention ultra vires (beyond the power) of the statute which does so. Also, there are some cases in which this writ cannot be held valid, these are:

✓ Where the person against whom the writ is issued or the person who has been detained is not within the jurisdiction of the Court.

✓ To secure the release of a person who has been imprisoned on any criminal charge by the Court.

✓ To interfere with a proceeding for contempt by a Court of record or parliament.

✓ When a person is committed to jail custody by a competent court, by an order which prima facie does not appear to be wholly illegal.


WRIT OF MANDAMUS


Mandamus literally means ‘an order or a command’. It demands a command on a person to which it is addressed, to do some public or quasi-public legal duty which he has denied to perform and the performance of which cannot be enforced by any other adequate legal remedy. It is a discretionary remedy and the Court can refuse to grant mandamus where there is an alternative remedy for redress of injury complained for. In India, mandamus will lie not only against officers and other persons who are bound to do a public duty but also the government officials for, Articles 226 and 361 provides that proper proceeding may be brought against the government official(s) doing so. The writ of mandamus is also available against inferior courts or other judicial bodies when they don’t exercise their jurisdiction and thus commands them to perform the duty concerned. The writ of mandamus may be issued for:

✓ Enforcement of Fundamental Rights. Whenever any government official or a public officer does something that violates fundamental rights of people, the court would issue the writ of mandamus to restrain the officer from doing so. Mandamus is also available for several purposes to the High Court’s too;

✓ To enforce the performance of any statutory duty where a public officer has got a power conferred by the Constitution or a statute. The writ will compel the officer to perform his statutory duty.

✓ To order a judicial tribunal or a court to exercise its jurisdiction when it does not do so.

✓ To direct a government official or a public official not to enforce any law that is unconstitutional. The writ of mandamus will not be granted against the following persons;

✓ The President or the Governor of the State, and

✓ Against any private individual or body whether incorporated or not except where the state is in collusion with such private party.


WRIT OF PROHIBITION


Generally, it means forbidding. It prevents an inferior court from exceeding its jurisdiction or acting contrary to the principles of natural justice. The writ of prohibition differs from the writ of mandamus in a way that mandamus orders activity, prohibition orders inactivity. Moreover, mandamus is available to judicial as well as administrative agencies whereas prohibition and certiorari both expand their scopes up to judicial and quasi-judicial agencies. In India, this writ not only covers up the issues of excess of jurisdictions but also in cases where courts or tribunals assumes jurisdiction under a law which itself contravenes some fundamental rights. The writ of prohibition is issued to restrain the tribunal from making ultra vires decision.


WRIT OF QUO WARRANTO

Quo Warranto literally means, ‘by what authority’ or ‘by what warrant ’. This writ verifies the legality of usurpation of a public office and to expel him from enjoyment of the claim if it be founded unwell. The conditions necessary for filing a writ of quo warranto are as follows:

✓ The office must be public and created by any statute or constitution itself.

✓ The office must be a substantive one.

✓ There must have been a contravention of constitution or statutory instrument, in appointing such person to the office. It is a discretionary remedy for which a court could refuse according to the facts and circumstances of the case.


A writ of quo warranto is filed against a person who does not belong to an office of public nature. Such a person is bound by this writ to show, by what authority is he entitled to hold that office. Challenges like any disqualifications debarring the appointment to hold the office can be made under this writ, or when the appointment is contrary to the provisions provided by the statute. This writ is a very powerful weapon against the usurpation of public offices.



WRIT OF CERTIORARI

Certiorari is one of the oldest writs that mean ‘to be more fully informed of’. It is an order by the superior court up on the inferior court or any administrative agency seeking judicial review that whether it is exercising its powers properly and not usurping the jurisdiction that it does not possess. It is a means to obtain a speedy conclusion of a case when the inferior court/tribunal exercises ultra vires jurisdiction or in deficit of it. The writ can be used even before the trial so as to avoid any sort of abuse of the courts’ jurisdiction. In a nutshell it can be said that the main motive of this writ is to secure courts’ jurisdiction. Conditions necessary to file the writ of certiorari are:

✓ There should be a tribunal or an officer having legal authority to control question affecting the rights of subjects and to act judicially.

✓ Such tribunal/officer must have been acted without jurisdiction or if in case of quasi-judicial authority, they should have acted in excess of legal authority, or in case of breach of principles of natural justice.

✓ Initially, the Supreme Court decided that the writ of certiorari would not be issued against purely administrative cases, but to be issued only if authority has the duty to proceed judicially. But, later the apex court wiped out the distinction between administration and quasi-judicial authorities.

In today’s scenario, if any sort of dilapidation of principles of natural justice quashes with the administrative process, the Court may challenge the decisions of the concerned administrative authority.


SUPREME COURT AND HIGH COURTS’ JURISDICTION


Moving on to the jurisdictions after the type of writs, it feels quite significant to keep a check on the jurisdiction of High Courts and the Supreme Court. These writs are one of the contrivances to keep a check on the functioning of these agencies with utmost efficiency. Sometimes, the application u/A 32 of the constitution for issue of the writ for enforcement of fundamental rights are viewed as an original jurisdiction in the Supreme Court. Undoubtedly, the aggrieved party has the right to move to the apex court by raising the petition rather than moving to the High Court by way of appeal, is in a sense, an original jurisdiction. The dispute in such cases is not between the parties of union but in between the aggrieved individual and an agency of government. Regardless of the above mentioned fact, it must be treated as a spate jurisdiction. Consequently, Article 32 of the constitution has no logic to the jurisdiction of the Supreme Court as stated u/A 131 of the constitution. Article 226 of the constitution enables the High Courts to extend their jurisdiction extra ordinarily. It not only remediates the enforcement of fundamental rights but also check on the legality of the administrative decisions given by the government. The trickiest fact of such jurisdiction is that being granted by the constitution, it cannot be struck down or mould in any way of amendment. As already been highlighted, the scope of issuing the writs is wider on part of the High Courts’ whereas in case of the Supreme Court, pre dominantly, it can only be issued on the matter of infringement of fundamental rights. High Courts can not only issue the writs in case of violation of fundamental rights, but also in case of ordinary legal right being infringed. Unnecessary delay in filing the writ would be a great point to refuse the exercising of such discretionary jurisdiction. The extraordinary power shall only be exercised cautiously in cases where it becomes necessary to establish confidence and critical analysis for a justified conclusion. In Union of India Vs. (AIR 2017 SC 101) Rajasthan High Court, the bench of Rajasthan HC under its suo moto power u/A 226 of the constitution issues a direction to the Union Government to include the Chief Justice and the judges of High Court in the list of people excused from embarkation security checks. Keeping aside the judgment of Rajasthan HC, the Supreme Court stated that the powers laid u/A 226 is wide enough to reach out to injustice wherever it may originate. The matter of judgment of Rajasthan HC is an example where court shouldn’t have entered.


LEADING LIGHT CASES ON THE CONCEPT OF ‘WRITS’


In Vineet Narain Vs. (1 SCC 226) Union of India,

a writ was filed in the Supreme Court complaining against the agencies like CBI for improper investigations of the heinous offenses. The petitioner demanded for the appropriate appointment of the officers and reinvestigation into the matter. The court ordered proper investigation seeking speedy conclusion of the matter concerned.


In ADM Jabalpur Vs. (1976 AIR 1207) Shivkant Shukla,

tracing back to the emergency period 1975-77, the then PM Indira Gandhi enacted the Maintenance of Internal Security Act, 1971 to detain the people in charge of violating internal tranquility. This is popularly known as habeas corpus writ, wherein the then PM’s election was challenged on the ground of electoral malpractices in the Allahabad HC. The judgment was delivered in the favor of the ruling government in the ratio 4:1.The judgment held that no person could contest the arrest made via a writ petition u/A 226 of the High Court.


In AK Gopalan Vs. (1950 AIR 27) State of Madras,

it was the first time, the Supreme Court was interpreting fundamental rights. The petitioner alleged the violation of Articles 13, 19, 21 and 22 for the cause of his detention in Madras jail under Preventive Detention Act, 1950. The court stated that each right has its individuality. Although, the provisions of the said act are harsh, they do not curtail the rights u/A 21 & 22 and resultantly declared the provisions of the mentioned Act valid.


In Hari Vishnu Kamath Vs. (1955 AIR 233) Syed Ahmad Ishaque,

the Supreme Court implicated the distinction between the writ of certiorari and prohibition in the High Court via Article 266. It stated that the writ of certiorari is applied secure the dominion when the inferior court/tribunal exceeds or falls behind its jurisdiction. The case was about the proceedings of Election Tribunal and petition was filed by a candidate disputing the election of the respondent in state of Madras. The court elucidated that prohibition is a mere prevention for an order which has already been passed. On the other hand, certiorari interprets the ongoing proceedings.


The case of Issardas and S. Lulla Vs. and Ors. too dealt with the same concept vis a vis Article 226. VITALITY OF WRITS The role of writs dwells in its creation of permissible areas to access powers in exercise, authority and jurisdiction of courts/tribunals effectuated in any state. The writs are those prerogative remedies that keep the administration within the ambit of law. One of the most effective results of these writs is the advent of Public Interest Litigation (PIL). It helps the poor who cannot meet the capacities and expenses of courts along with a speedy conclusion. The significance of writs has also been hinted in the famous Pad field’s Case. Back in the time, in England, courts were not supposed to interfere with government and their decisions, also, with the non-speaking orders passed by any of the officers. These orders were not justified in public. The courts, on such decisions kept their lips sealed and took no accountability of such orders.


CONCLUSION

The concept of writs has been embraced from the ‘English Judicial System’. The prerogative powers of the writ jurisdiction granted by the Indian Constitution u/A 226 & 31 is undoubtedly a discretionary one, having unending limits in the ambit of legality. It aims at securing our fundamental rights. The inception of the concept traces back into the 13th century during the Royal Seal. Chiefly, in India, it was introduced by the time of the Regulating Act of 1973. The Constitutional Laws are the law of laws i.e., nobody is above the law in the entire nation including the administrating bodies. Thus, the remedies provided under the constitution keeps a check on to the functioning of government and everyone who comes under its axis. The writ jurisdictions safeguards the transparency and functioning of the system. Thus, it reviews all the policy decisions judicially which are unfair and unjustified. Constitution provides different writs for different purposes like habeas corpus, certiorari, prohibition, quo warranto and mandamus. The constitution also enables the Supreme Court and the High Courts’ to extend their writ jurisdictions


Authored by

Aditi Saxena (Invertis University)


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