Types of Writs in India

Types of Writs in India

Enforcement of Fundamental Rights

For the enforcement of fundamental rights, the judiciary has been armed with the power to issue writs.

• The power to issue these writs for the enforcement of the Fundamental Rights is given by the Constitution to the Supreme Court [Ref: Art. 32] and High Courts [Ref.: Art. 226].

• Supreme Court has the power to issue writs only for the enforcement of Fundamental Rights, whereas under Article. 226, a High Court can issue writs for the enforcement of Fundamental Rights and/or for the redress of any other injury or illegality.

• The Supreme Court can issue a writ against any person or Government within the territory of India, while a High Court can issue a writ against a person, Government, or other authority only if they are located within the territorial jurisdiction of the High Court.

Types of Writs

1. Habeas Corpus

• A writ of Habeas Corpus calls upon the person who has detained another to produce the latter before the court, to let the court know on what ground he has been confined, and to set him free if there is no legal justification for the imprisonment.

• The words 'habeas corpus' literally mean 'to have a body'.

• This writ may be addressed to an official or a private person who has another person in his custody.

2. Mandamus

• Mandamus literally means a command.

• It commands the person to whom it is addressed to perform some public or quasi-public legal duty which he has refused to perform and the performance of which cannot be enforced by any other adequate legal remedy.

• Mandamus cannot be granted against the President or the Governor of a state, for the exercise and performance of the powers and duties of his office.

3. Prohibition

• The writ of prohibition is issued by the Supreme Court or a High Court to an inferior court, forbidding it to continue proceedings in excess of its jurisdiction or to usurp a jurisdiction with which it is not legally vested.

• While mandamus is available not only against judicial authorities but also against administrative authorities, prohibition and certiorari are issued only against judicial or quasi-judicial authorities.

4. Certiorari

• Certiorari is issued to quash the order or decision of a Court or Tribunal.

• Though prohibition and certiorari are both issued against Courts or Tribunals exercising judicial or quasi-judicial powers:

  • Prohibition is issued to prevent ultra vires orders and is available during the pendency of proceedings.

  • Certiorari is issued after the order has been made.

5. Quo Warranto

• Quo warranto is a proceeding whereby the court enquires into the legality of the claim which a party asserts to a public office and ousts him if the claim is not well-founded.

• Conditions for the issue of a writ of quo warranto:

  1. The office must be public and created by a statute or the Constitution.

  2. The office must be substantive and not merely a function or employment at the will of another.

  3. There has been a contravention of the Constitution or a statute in appointing such a person to that office.

Limitations on the Enforcement of Fundamental Rights

• Parliament has the power to modify the application of Fundamental Rights to members of the Armed Forces, Police Forces, or intelligence organisations to ensure proper discharge of duties and discipline. [Ref. Art. 33]

• When martial law is in force, Parliament may indemnify any person in the service of the Union or a State for any act done by him. [Ref. Art. 34]

• Certain fundamental rights may remain suspended during a Proclamation of Emergency made by the President under Article 352.

Right to Information

• The Right to Information has been granted to every citizen of India under the Right to Information Act, 2005, which came into force on 12th October, 2005.

• It is not a Fundamental Right, but it entails a penalty for delay in giving information to the applicant.

• The Information Commission has been set up at the central and state levels to oversee the implementation of the Act.

Final Thoughts

The Fundamental Rights in India are essential for protecting individual freedoms and ensuring justice and equality. The judiciary, through its power to issue writs, acts as a guardian of these rights. Writs like Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto provide effective mechanisms to challenge illegal detentions, violations of duty, and misuse of power.

While the Constitution provides strong safeguards, certain limitations exist for members of the Armed Forces, Police, and during emergencies, reflecting the need to maintain discipline and national security. The Right to Information Act, 2005, though not a fundamental right, strengthens transparency and accountability in governance.

Overall, understanding these rights, writs, and legal protections empowers citizens to assert their freedoms, hold authorities accountable, and contribute to a democratic and just society.