What is a writ Jurisdiction 

Lessons From The Law

The Supreme Court acts as a custodian of the fundamental rights of citizens. It is considered the “guarantor” and “defender” of the fundamental rights of the citizens of India. It has the power to issue five types of writs; habeas corpus, mandamus, quo warranto, certiorari, and prohibition. A writ is an order or command from a higher authority (Supreme Court or High Court) which directs an individual to perform or abstain from performing a certain act. A writ petition can be filed by any individual when his/her fundamental rights are infringed upon by the state.

Different types of writs 

There are five types of writs which are guaranteed by the Indian Constitution to the public in case their fundamental rights are being violated. The five types of writs mentioned below are issued in distinct circumstances, and each of them has different imputations.

1. Habeas corpus is a Latin term which means “to have a body of”
2. Mandamus is a Latin term which means “to command”
3. Quo warranto is a Latin term which means “by what authority”
4. Certiorari is a Latin term which means “to certify”
5. Prohibition is an English term which means “to forbid or to stop”

Writ of habeas corpus

The phrase ‘Habeas corpus’ in its longer form is called—”Habeas corpus coramnobisadsubjiciendum,” which means “you must have the body before us for submitting.”

This writ helps in the release of an unlawfully detained person. By virtue of this writ, any person who is either in police or judicial custody or private custody is presented before the court of law and released if such detention is found to be illegal. The burden of proof lies with the public official or the private person who is taking a person into his custody. Article 20 of the Constitution states that a person cannot be forced to be a witness against himself or herself and that a person cannot be convicted twice or more for the commission of the same offence. The Article also states that a person can only be held liable for a certain offence if, at the time of the commission of the offence, there exists a law which is being violated by the commission of such an offence. This writ is used to enforce the fundamental right of personal liberty under Article 21 of the Constitution against unlawful detention.

The writ petition can be filed by the detained person himself/ herself, or by any of his/ her friends or relatives on his/ her behalf. The writ can be issued against both public authorities and private individuals.

In which situations can the writ be issued

1. When the detention is not in accordance with the procedure established by law.
2. When an arrest is made under a law that in itself is unconstitutional.
3. When the procedure established by law is not strictly followed.

In which situations can the writ not be issued

1. The writ is not available during the proclamation of an emergency.
2. The writ is not available if the writ petition is dismissed by the competent court.
3. The writ is not available when the detention of the person is related to the order of the court.
4. The writ is not available when the confinement of the person is shown to be legal by providing the necessary evidence.

Illustration– Ram, a person, was taken into police custody by B, a police officer without a warrant to arrest Ram. B did not present Ram before the magistrate and also did not allow his family members to know about Ram’s whereabouts for many days. B was physically and mentally torturing Ram. Thus, it can be said that B has wrongfully detained Ram, and a writ of habeas corpus can be issued by Ram’s family on his behalf. 

Relevant case laws

1. In the case of KanuSanyal v. District Magistrate Darjeeling and Ors.,(1974), it was held by the Supreme Court that this writ is a procedural writ and not a substantive writ. The Court also said that there should be a focus on examining the legality of the detention according to the facts of a case.
2. In the case of LallubhaiJogibhai Patel v. Union of India and Ors.,(1980), it was held that a second writ petition could not be issued if it is filed on the same grounds as the first writ petition. However, if there are certain additional grounds which were missed to be mentioned in the first petition on reasonable grounds, only then will a second writ petition be entertained by the Hon’ble Court. The writ petition, in this case, was filed challenging the order of detention, which was received by the petitioner on certain grounds. Later on, a few more additional grounds were added and thus a second petition was filed for the issuance of the writ of habeas corpus by the petitioner.
3. In the case of Sunil Batra v. Delhi Administration,(1979), the Supreme Court widened the scope of the writ of habeas corpus and held that the writ cannot only be issued in case of unlawful detention but can also be issued against ill-treatment of prisoners by the officers in authority while in custody, i.e., the writ also provides for the protection of prisoners.

Writ of mandamus

This writ is issued by a court of higher authority directing the lower courts, or any other public servant, who has failed to perform their duty, to perform their mandatory public duty correctly and efficiently. This writ is the last resort, i.e., it is issued only when all other attempts to solve the problem have been made. The writ can be issued against any type of authority; legislative, judicial, quasi-judicial or administrative.

The writ petition can be filed by any person who, in good faith, wants a public authority to function properly. The writ can be issued against any person or public authority who has failed to perform their mandatory public duty.

In which situations can the writ be issued

1. The person or any public authority against whom the writ has to be issued must be under an obligation by law to perform a certain duty, which he has failed or neglected to do.
2. The public duty must be mandatory in nature, and there must be a failure to perform such a mandatory act.
3. The petitioner must have a legal right to compel the performance of such public duty.

In which situations the writ cannot be issued

1. This writ cannot be issued against the judges of the High Court and Supreme Court, compelling them to perform their duty.
2. This writ cannot be issued against the President of India and the Governor of any state, compelling them to perform their duty.
3. This writ cannot be issued against the working Chief Justice of India, compelling him to perform his duty.
4. This writ cannot be issued when the nature of the duty is discretionary.
5. This writ cannot be issued against a private individual.
6. This writ cannot be issued to enforce a private contract.

Example- The writ can be issued to compel the performance of certain public duties like- holding elections, preventing dissolution of panchayats and municipalities, or restoration of public offices.

Relevant case laws

1. In the case of A. Co-operative Society v. the State of Maharashtra,(1966), the state government had denied the jurisdiction to revise the order of the lower authorities. The issue was to grant membership in the society to the respondent, which was first denied and then accepted by the Registrar of the society. Hence, an application for the issuance of this writ was filed in the concerned High Court, failing which the respondent reached the Supreme Court by special leave petition. It was held by the Hon’ble Supreme Court that the writ of mandamus can be issued where a public servant has denied its jurisdiction, which it has under the law.
2. In the case of Sohanlal v. Union of India,(1957), the Government of India allotted plots to the refugees from Pakistan, provided they met the eligibility criteria set by the government. However, the appellant was evicted from his allotted plot and thus a petition was filed by him for the issuance of this writ. The Supreme Court said that a writ of mandamus can be issued against a private individual provided the private individual has merged with a public authority.
3. In the case of ManjulaManjari v. Director of Public Instruction (DPI),(1952), the Orissa High Court denied issuing a writ of mandamus against the DPI to order him to include the petitioner’s book in his list of approved books because this was a discretionary duty and not mandatory in nature. The petitioner’s contention was that she suffered a great amount of loss in terms of money when her book was not included in the list of approved books for the next year.

Writ of quo warranto

This writ is issued asking public servants or any private person to prove under what authority they are holding a certain public office. The burden of proof lies with the concerned person. However, if the concerned person fails to prove his authority, he can be removed from public office. This writ prevents any person from wrongfully usurping a public office without any authority.

The writ petition can be filed by any person whose fundamental rights are being violated, or in the public interest. The writ can be issued against any unlawful holder of a public office (public or private person).

In which situations can the writ be issued 

1. There must be an existence of a public office created by law.
2. The public office must be substantive and permanent in nature.
3. The position in a public office may be unlawfully held by a private person.
4. There has been a contravention of the law in appointing a person to the concerned public office.
5. The duties arising from public office must be public in nature.

In which situations the writ cannot be issued 

1. This writ cannot be issued if there is any political gain to the petitioner by the issuance of this writ.
2. This writ cannot be issued against any state minister.

Illustration- If A, a public servant, is holding a public office even after his retirement, then this writ can be issued against him as he no longer has the authority to hold such a public office.