Writ Petitions: Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo warranto

INTRODUCTION: The Constitution of India has provided its citizens with different rights like the right to education, right to dignity, right to life, right to express, right to equality, etc. There is no meaning of Rights until they are properly protected. For the protection of our fundamental rights and their safeguard - we have some Constitutional Remedies. Protection of Fundamental Rights (FRs) has been discussed mainly in 4 Articles. Firstly, Article 13 - which talks about Judicial Review. Secondly, Article 359- which says that FRs cannot be curtailed; except during Emergency. Thirdly, Article- 32 and 226, which are related to the Writ petitions. Part III of the constitution talks about FRs and they extend from Article 12 to 35.
Article 32 and 226 of Constitution of India: Art. 32 mainly talks about two types of Rights and Powers. Firstly, it says that if an individual's FR is being violated, Then he can directly use Art. 32 and approach the Supreme Court. On the other hand, Art. 32 empowers the Supreme Court to issue 5 kinds of WRITS for the protection of FRs Because of this feature of Art 32, the Supreme Court is known as "Protector & Guarantor" of FRs. Dr. B.R. Ambedkar has called this Art. as "the Heart & Soul of the Constitution". The powers which are vested under Art. 32; exactly the same powers are also given under Art. 226 to the High Courts. By using Art. 226 - one can approach a High Court. Thus, these two Articles give us the power to approach the highest court of the country, in case our FRs are violated. Also, in order to protect your rights, it is not a rule that you first approach the High Court and then only approach the Supreme Court.

Although, when you directly approach the Supreme Court, you will have to explain, as to why you did not first approach the High Court. Art. 32 & 226 both provide for the issuance of Writs. But there are 2 major differences between these Art. The Writ issuing power was laid down under Art. 32 - is only limited to the protection of FRs Whereas under Art. 226, writs could be issued for "any other purpose" in addition to FRs. for example, a Writ against the decision of an administrative tribunal. As Art 32 falls under Part III of the Constitution, the constitutional remedy under it is an FR. Whereas the remedy under Art. 226 is not an FR.

There are 5 types of the writ. 1. Habeas Corpus; 2. Mandamus; 3. Certiorari; 4. Prohibition; & 5. Quo warranto. All 5 of them are Latin terms! "Writ" means a kind of a Remedy.

1st- Writ of Habeas Corpus: It means to have a body. To produce a body. This is the most powerful and most used writ. If the state illegally detains a person, then such an individual by himself - or through his relatives or friends- can use the Writ of Habeas Corpus for the release of that person. So whenever you use this writ, SC or the HC asks the Detaining authority- That on what basis the person was detained? If the basis is found to be unreasonable, then the detention ends and he is to be released with immediate effect! 1st In the case Rudul Shah v. State of Bihar- A person who had already completed his period of detention- was still kept in prison for - an EXTRA 14 yrs! In this case, the Writ of Habeas Corpus was used- which led to his immediate Release Additionally he was given Exemplary Damages! So Writ of Habeas Corpus is used to demand the production or release of a person who is illegally detained.

2nd - Writ of Mandamus: which means, 'WE COMMAND' You can use this Writ on any statutory, non-statutory, University, Tribunals, etc., and Command them to perform their Public Duty. i.e., Through this Writ, you can command a public official to perform his Public Duty. Let's discuss this case to understand the Writ In this Case, the Financial Co-op had an agreement with the Lotus Hotels that we will release the funds so that you can complete your construction work. Later, they refuse to release the Funds So, Lotus Hotels approach the Gujarat High Court Gujarat HC by using the Writ of Mandamus, directs the Authority to perform the Public Duty which it promised to perform! There is 1 condition pre-requisite for the application of Writ of Mandamus - There should be a Public Duty.

3rd - Writ of Certiorari: It means - 'To be Certified' Thought this Writ, SC amp; HC, can command the Lower Courts to submit its Records- for their Review. In the review, it is checked - that whether the Lower Court Judgments are illegal or not. Now when can Lower Courts' judgments be Illegal? 1. Excess of Jurisdiction 2. Lack of Jurisdiction 3. Jurisdiction is Un-Constitutional 4. Violation of Principles of Natural Justice. If the LC's Judgments are found to be illegal, then they are Quashed. which means that their judgment has no value now and is not to be followed.

4th- Writ of Prohibition: Prohibition and Certiorari have a little difference You must have heard of this statement- 'Prevention is Better than Cure' The difference that`s between Prevention and Cure, the same difference exists between Prohibition and Certiorari Remember it this way: 'P' = Prevention = Prohibition and 'C' = Cure = Certiorari. As we`ve learned that - if an illegal judgment is announced - then to Quash it - to CURE the mistake- you have to use Certiorari But, if before the judgment is announced, if you want to PREVENT the mistake, then you use the Writ of Prohibition Prohibition = 'To Forbid' So Prohibition is used, until the Lower Court has pronounced the Judgment And if the LC has pronounced an illegal judgment.

5th- Writ of Certiorari: For example, you are a College Student - therefore, I am safely assuming that you must have cleared college`s Entrance Eligibility - whether it's Clearing 12th Board or getting minimum marks required or qualifying Entrance Exam You must have qualified in College`s Entrance Eligibility! If it is found out that you have not cleared the Entrance Eligibility - Then you can be removed from the college. Exactly this principle is followed in the Writ of Quo Warranto, which means 'By what Authority' By using this Writ, Courts can question any Public Officer - that by what authority have you assumed this Public Office? If the Officer`s Title is defective- then he has to vacate the Office!

Quick Recap:
  • 1. If you have to ask a Public Officer - that by what authority have you assumed the Office - You use the Writ of Quo Warranto.
  • 2. If you have to stop a Court from pronouncing a judgment - then you use the Writ of Prohibition.
  • 3. But if the Court has already pronounced the Judgment and - you want to stop the judgment from coming into Effect - then you use the Writ of Certiorari.
  • 4. If you want to Command a public officer- to perform his Public Duty - Then you use the Writ of Mandamus
  • 5. And if you want to save a person from Illegal Detention- then use the Writ of Habeas Corpus.

The Editor

भारतीय संविधान आणि भारतीय कायद्यांबाबत, तसेच कायदीय चालू घडामोडी, न्यायालयांचे निकाल, निर्णय, आदेशा याबाबत मराठी आणि इंग्रजी अशा दोन्ही भाषेतून वाचकांना ज्ञान मिळावे यासाठी हा ब्लॉग सुरू करण्यात आला आहे. कायद्याचे अभ्यासक, वकील, विद्यार्थी हे सुद्धा या ब्लॉगवर आपले लेख प्रसिद्ध करू शकतात. संपर्क:- अ‍ॅड. रावण धाबे, raavan@yahoo.com

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