Kinds of writs

Articles 32 and 226 specifically provide for five kinds of writs. These writs are
issued in different circumstances and have different implications. They are:

 Habeas Corpus
„Habeas Corpus‟ literally means “to have a body of”. This writ is used to release
a person who has been unlawfully detained or imprisoned. By virtue of this writ,
the Court directs the person so detained to be brought before it to examine the
legality of his detention. If the Court concludes that the detention was unlawful,
then it directs the person to be released immediately. Circumstances of unlawful
detention are:

 The detention was not done in accordance with the procedure laid down.
For instance, the person was not produced before a Magistrate within 24
hours of his arrest.

 The person was arrested when he did not violate any law.

 An arrest was made under a law that is unconstitutional.

This writ ensures swift judicial review of the alleged unlawful detention of the
prisoner and immediate determination of his right to freedom. However, Habeas
corpus cannot be granted where a person has been arrested under an order
from a competent court and when prima facie the order does not appear to be
wholly illegal or without jurisdiction.

This writ can be filed by the detained person himself or his relatives or friends on
his behalf. It can be issued against both public authorities and individuals.

In Sunil Batra v. Delhi Administration (1980 AIR 1579) case, an application

was made to the Supreme Court through a letter written by a co-convict on the
maltreatment of the prisoners. This letter was taken up by the Supreme Court
and it issued the writ of habeas corpus stating that this writ can not only be used
against illegal arrest of the prisoner but also for his protection against any
maltreatment or inhuman behaviour by the detaining authorities.

In Kanu Sanyal v. District Magistrate Darjeeling & Ors. (1974 AIR 510)
case, the Supreme Court held that rather than focusing on the defined meaning
of Habeas Corpus, i.e. produce the body, there should be a focus on the
examination of the legality of the detention by looking at the facts and
circumstances of the case. It stated that this writ is a procedural writ and not a
substantive writ. This case dealt with the nature and scope of the writ of habeas
corpus.

 Mandamus
„Mandamus‟ means „we command‟. It is issued by the Court to direct a public
authority to perform the legal duties which it has not or refused to perform. It
can be issued by the Court against a public official, public corporation, tribunal,
inferior court or the government. It cannot be issued against a private individual
or body, the President or Governors of States or against a working Chief
Justices. Further, it cannot be issued in the following circumstances:

 The duty in question is discretionary and not mandatory.

 For the performance of a non-statutory function.

 Performance of the duty involves rights of purely private nature.

 Where such direction involves violation of any law.

 Where there is any other remedy available under the law.

The writ of mandamus is issued for keeping the public authorities within their
jurisdiction while exercising public functions. The object of mandamus is the
prevention of disorder emanating from failure of justice that is required to be
granted in all cases where there is no specific remedy established in law. It
cannot be issued when the government or public official has no duty to perform
under the law.

A writ petition seeking mandamus must be filed by a person in good faith and
who has an interest in the performance of the duty by the public authority. The
person seeking mandamus must have a legal right to do so and also must have
demanded the performance of the duty and it is refused by the authority.

In All India Tea Trading Co. v. S.D.O. (AIR 1962 Ass 20) case, the Land
Acquisition Officer erroneously refused to pay the interest on compensation
amount. A writ of mandamus was issued against the Land Acquisition Officer
directing him to reconsider the application for the payment of interest.

S.P. Gupta v. Union of India [9], judges were of the view that a writ
cannot be issued against the President of India for fixing the number of
judges in High Courts and filling vacancies.

In the case of Binny Ltd. & Anr v. V. Sadasivan & Ors (2005), the Hon‟ble
Supreme Court laid down the scope of mandamus. It stated that a writ of
mandamus is not applicable against any private wrong. It can be issued only
when any public authority exercises its duty unlawfully or refuses to perform
its duty within the ambit of the law.

 Quo Warranto
„Quo Warranto‟ means „by what warrant‟. Through this writ, the Court calls
upon a person holding a public office to show under what authority he holds
that office. If it is found that the person is not entitled to hold that office, he
may be ousted from it. Its objective is to prevent a person from holding an
office he is not entitled to, therefore preventing usurpation of any public
office. It cannot be issued with respect to a private office.

The writ can be issued only when the following conditions are fulfilled:

 The public office is wrongfully assumed by the private person.

 The office was created by the constitution or law and the person
holding the office is not qualified to hold the office under the
constitution or law.

 The term of the public office must be of a permanent nature.

 The nature of duties arising from the office must be public.

In Kumar Padma Padam Prasad v. Union of India (AIR 1992 SC 1213)

case, Mr K.N. Srivastava was appointed as a Judge of the Gauhati High Court
by the President of India by a warrant of appointment under his seal. A
petition was filed for issuing a writ of quo-warranto contending that Mr K.N.
Srivastava was not qualified for the office. It was held by the Supreme Court
that since Mr K.N. Srivastava was not qualified, quo warranto could be issued
and accordingly the appointment of Mr K.N. Srivastava was quashed.

 Certiorari
„Certiorari‟ means to „certify‟. Certiorari is a curative writ. When the Court is of
the opinion that a lower court or a tribunal has passed an order which is beyond
its powers or committed an error of law then, through the writ of certiorari, it
may transfer the case to itself or quash the order passed by the lower court or
tribunal. A writ of certiorari is issued by the Supreme Court or High Court to the
subordinate courts or tribunal in the following circumstances:

 When a subordinate court acts without jurisdiction or by assuming

jurisdiction where it does not exist, or

 When the subordinate court acts in excess of its jurisdiction by way of

overstepping or crossing the limits of jurisdiction, or

 When a subordinate court acts in flagrant disregard of law or rules of

procedure, or
  When a subordinate court acts in violation of principles of natural justice
where there is no procedure specified.

The writ of certiorari cannot be issued against:

1. An individual
2. A company
3. Any private authority
4. An association
5. To amend an Act or Ordinance
6. An aggrieved party who has an alternative remedy

Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court has
explained the meaning, ambit and scope of the writ of Certiorari. Also, in this
it was explained that Certiorari is always available against inferior courts and
not against equal or higher court, i.e., it cannot be issued by a High Court
against any High Court or benches much less to the Supreme Court and any
of its benches.

T.C. Basappa v. T. Nagappa & Anr. [13], it was held by the constitution
bench that certiorari maybe and is generally granted when a court has acted
(i) without jurisdiction or

(ii) in excess of its jurisdiction.

5. Prohibition
 What does Writ of Prohibition mean?
It is a writ directing a lower court to stop doing something which the law
prohibits it from doing. Its main purpose is to prevent an inferior court from
exceeding its jurisdiction or from acting contrary to the rules of Natural Justice.

 When is the writ of Prohibition issued?

It is issued to a lower or a subordinate court by the superior courts in order to
refrain it from doing something which it is not supposed to do as per law. It is
usually issued when the lower courts act in excess of their jurisdiction. Also, it
can be issued if the court acts outside its jurisdiction. And after the writ is
issued, the lower court is bound to stop its proceedings and should be issued
before the lower court passes an order. Prohibition is a writ of preventive nature.
The principle of this is „Prevention is better than cure‟.
  Important Case Laws
In case of East India Commercial Co. Ltd v. Collector of Customs [16], a
writ of prohibition was passed directing an inferior Tribunal prohibiting it from
continuing with the proceeding on the ground that the proceeding is without or
in excess of jurisdiction or in contradiction with the laws of the land, statutes or
otherwise. Then in the case of Bengal Immunity Co. Ltd [17], the Supreme
Court pointed out that where an inferior tribunal is shown to have seized
jurisdiction which does not belong to it then that consideration is irrelevant and
the writ of Prohibition has to be issued as a right.

 Circumstances when the writ of Prohibition cannot be issued:

1. A writ of prohibition cannot be issued when a subordinate or a tribunal

court is acting within the ambit of its jurisdiction.
2. A writ of prohibition cannot be issued in the situation of a mistake of a
fact or law.
3. A writ of prohibition is not allowed for administrative authorities
discharging administrative, executive or ministerial functions.