Writs
Writs are the formal order in the name of the sovereign,
court or any commanding authority directs to do or refrain from doing some act.
Writ especially associated with the King in the earlier times. Originally writs
were issued only at the suit of the king, but which were later made available
to the subject.
In India, the prerogative remedies derive their power from the constitution
from article 32 and 226.
Prerogative Remedies – Writs were born in
procedural style by medieval English law to impose legal order on the administration
and were called prerogatives as they were the crown’s remedies.
Discretionary Remedy - When the grounds for issuing the writ exist, but
the court may refuse them in appropriate circumstances.
So, all the writs in India except habeas corpus are discretionary remedy and have been known as prerogative remedy.
Salient features of Writ:
1. Alternative Remedies or Exhaustion of remedies - You must exhaust all your
alternative remedies available and no shortcut shall be taken, like directly
going to the High or the Supreme Court
2. Laches or Unreasonable delay - If the time duration has
passed as per the Limitation Act, then one cannot file the writ in the court.
3. Res Judicata - The concept of Res Judicata applies in
writ proceedings as well. as per section 11 of the Civil Procedure Code, which
means that if the matter is adjudicated before a competent court, then the same
matter by the same parties cannot be appealed or further pursued.
4. Locus Standi - the doctrine of locus standi has been
relaxed now, through various decisions. Like a person can file PIL etc. Which
mean that it is not necessary that only the person who has suffered or is a
victim, only he can file writ but any person on his behalf may also file the
writ.
5. Against whom writ would lie - It can be issued against State, Statutory bodies, Person charged with public duties. The writ can also be issued against a private person as well. For e.g.: if the father detains his daughter in the room (for whatever reason, like restraining her to marry a person from other religion), then the writ can be issued against him to present her daughter before the court.
Difference between SLP and Writ?
SLP (Special Leave Petition) if filed u/a 136 of the
Constitution. It is the grant of special leave to appeal before Supreme Court from
any judgement. Whereas writ petition (whether civil or criminal) is filled
before Supreme Court u/a 32 of the Constitution. SLP provides appellant jurisdiction
to the court whereas writ petition provides original jurisdiction to the court
as when your fundamental right gets violated one can directly approach the
Supreme Court of India.
But it is only the duty of the state to protect the
fundamental right and the writs are issued only against the violation of
fundamental right. So, how does the writ can be issued against the private
individual?
A writ cannot be issued against private individual, President
of India, Governors of States or working Chief Justices. A writ can be issued to
public officials, public corporations, tribunals, lower courts or the
government. As the duty to protect fundamental right is the responsibility of
the state and not any private individual.
1. Habeas Corpus
A writ of right, not a writ of course
"Grantablr ex debito justitiae"
Everybody has writ as a right and the court his bound to
take cognizance of the writ filed. It is not a matter of discretion but a
matter of right and the court is bound to address the case.
Whereas what the end decision would be is another question
whether the person in habeas corpus would be detained or released is an altogether
different thing. for eg: Habeas corpus cannot be granted when the concerned
person is under lawful restrain such as he/she has been committed to custody
under an order from competent court and prima facie the order does not appear
to be without jurisdiction or wholly illegal.
So, the writ does not tell you what the end would be result
it merely tells you that in case your fundamental right got breached, it will
be heard by the court.
Every petition must be supported by the affidavit.
S. Soundrajan v UoI
The writ of Habeas corpus is not available to question the
correctness of a decision by a legally constituted court of competent
jurisdiction.
Sunil Batra v Delhi Administration
Though the traditional function of the writ of Habeas corpus
has been to give relief to the person who has been illegally detained but also
to the person who is detained with the inhuman condition and cruel treatment in
jail. The Supreme Court hence widen the scope of the writ.
Kanu Sanyal v District Magistrate
While dealing with the writ of Habeas corpus, the court may decide whether the person shall be physically be presented before the court or not while deciding the legality of the detention.
2. Quo Warranto
-by what authority
PL Lakhanpal v AN Ray[1]
There were 4 senior judges present before appointing AN Ray
as the Chief Justice of India. By what authority was AN Ray was made the Chief
Justice of India was asked through this case to the legislature? As CJI S.M.
Sikri was not consulted before by the government to change the common practice
of appointing the senior most judge as the next Chief Justice of India. In
protest to that, the 4 other senior judges resigned. The appointment was held
valid as far as this writ was concerned and the case was dismissed.
Requirements to file this writ:
a) The officer must be a public officer.
b) The office has been created by law.
c) The holder must be in actual occupation of
the office.
d) The person is not legally qualified to hold the
said office.
Who may apply?
Any private person may apply this writ. He might not be
personally aggrieved or interested in the subject matter.
Delay and Laches do not constitute an impediment. So, if the
delay of time is taken place in filing the writ for challenging the
appointment, then the court does not consider the delay in consideration and
dismiss the case. But the person must be holding the position or that
appointment at the time of filing the writ.
3. Mandamus
- a command
A command that can be issued by the Supreme Court or the
High Court wither to direct the administrative authority to do or to refrain
from doing something.
It cannot be filed on any private person or private
institution, unlike habeas corpus. As it is filled for directing the public
body to do any public duty or refrain them from doing something in the interest
of the public. In order to check the administration is doing their job
properly. Every Public authority doing any public duty will be covered under
the writ of Mandamus.
It is a discretionary remedy, that the court will decide
whether to give the command (issue the writ) or not. Mandamus can be issued if
there is a breach of public duty and to keep the tribunal and authorities
exercising public functions within the limit of their jurisdiction while
exercising a public function.
Halsbury's Laws of England - "The order is of
Mandamus is of a most extensive remedial nature and is in the form a command
issuing from the high court of justice, directed to any person, corporation or
inferior tribunal, requiring him or then to do some particular thing therein
specified which appertains to his or their office and is in the nature of a
public duty".
Conditions precedent to issue Mandamus:
a. There must be a public law duty as imposed through any statute or rules or order having the force of law.
b. The public duty must be an absolute duty - In
any case of corruption to be filed, one has to take sanction from the state
government. it is the discretion of the state government, but it is the duty of
the state government to at least consider the application/request filed for
sanction. The state government have to take the cognizance of the application.
If the government rejects the application, then the writ cannot be filed.
Under Prevention of Corruption Act, a writ petition was filed before the court that the State government has rejected the application for granting the sanction. The court thereafter directed the government to provide the sanction, which the later Supreme Court overturn that the court’s order and said that the judiciary cannot step in the shoes of the legislature and cannot direct them to give the sanction[2]. Even the judiciary will not take the merits of the decision of the state government for deciding the application of rejecting the sanction.
c. Petitioner must have a right to enforce the duty.
d. There had been a demand and refusal.
e. Petition filed in good faith.
Continuous Mandamus
It is a process by which the court issues direction periodically and the court may issue interim direction from time to time. Largely this writ is adopted in case of PIL (Public Interest Litigation) on environmental matters.
Vineet Kumar v Union of India
The Supreme Court directed the CBI and other investigating
authorities/agencies to complete the investigation expeditiously while keeping
the court informed from time to time of the progress of the investigation so
that the court retained seisin of the matter till the investigation was
completed and the charge sheet was filed in the competent court for being dealt
with, thereafter in accordance with the law. This check over the progress made
by the authorities is called continuous mandamus.
4. Certiorari and Prohibition
Both are extremely similar in nature.
Certiorari means 'to inform'. The higher judicial body can question the lower
judicial body about the judicial decision taken by it. For e.g.: if the party
files the writ of Certiorari in the HC or SC while stating that right to be
heard was not given to them by the lower court, then the higher court may by
using this writ may quash that decision of the court if found the writ to be
true.
Whereas Prohibition means to forbid. In which the higher court can directs the lower court from not exceeding its jurisdiction or usurping its jurisdiction that it does not possess. This writ can stop the proceedings from happening. On the other hand, writ of certiorari gives power to quash the judgement or order of the lower court.
Difference between article 227 of the constitution and Certiorari?
Solution of writs is provided in the speedier form as compare to that of
article 227. Also, the Suo moto cognizance can be taken by the court in the case
of article 227, which is not the case with writs. The aggrieved person has to
move to the court for the court to take the cognizance. It is an original jurisdiction for the writ and revisionary jurisdiction for
article 227.
Grounds for both the writs-
1. Absence or excess of jurisdiction.
In the case of Mayapati v State of Haryana - Tribunal, the collector
does not go for survey and send some other person and made report based on his findings
over acquisition of property. The jurisdiction with the collector will not
remain with him if the initial step is not taken by him properly, i.e., to
himself go for a survey of the area. The writ ofc certiorari was issued by court stating that initial step
of going to the site was not fulfilled and hence collector cannot make decisions
over the property.
2. Violation of natural justice.
3. Error apparent on the face of the record.
In the case of Hari Vishnu Kamath v Ahmad Ishaque.
During the time of the election, what kind of ballot paper will be used for the
election was the issue. There was some infirmity for the same. As per the
rules, it was stated if there is any kind of infirmity with regard to the ballot
paper, then the vote will be rejected. But this issue might lead the other
contender to win the election. The tribunal decided that the vote will be taken
into consideration. The writ of certiorari was filed to this decision of the
tribunal. The court said that the while disposing of a writ petition of certiorari,
the court cannot look onto the facts that what evidence were taken into
consideration by the tribunal. There are certain limits over which the court
cannot go in the writ of certiorari. The court will look into the error which
is visible prima facie.
4. Unconstitutionality or ultra vires to statute.
[1] AIR 1975 Delhi 66
[2]
Mansukhlal Vithaldas v State of Gujarat, 1997
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