A writ is an order or command issued by a court to anyone or authority to try to do or abstain from doing an act.
We are given two types of rights:
1. Constitutional rights.
2. Statutory rights.
As per the 32 Article and 226 Article of the Indian Constitution, some constitutional remedies are provided to safeguard our Fundamental Rights. Part III of the Constitution discusses Fundamental Rights. It goes from 12th Article to 35th Article of the Indian Constitution. It is often argued that the 32 nd Article is itself a Fundamental Right.
Article 32 of the Indian Constitution
Article of the Constitution of India mainly talks about two rights and powers:
- Firstly, if an individual’s Fundamental Rights are being violated, they will directly move to the Supreme Court for its enforcement.
- Secondly, Article 32 of the Indian Constitution empowers the Supreme Court to issue writs for safeguarding the elemental Rights.
This is the explanation Article 32 of the Constitution confers the title of ‘Protector & Guarantor of Fundamental Rights‘ to the Supreme Court. Article 32 is additionally referred to as the center and soul of the Constitution.
The powers vested in Article 32, the identical powers are vested in Article 226, under which an individual can move to the supreme court.
Difference Between Article 32 and Article 226
The big differences between the 32nd Article and 226th Article of the Constitution are:
- The powers to issue the writ under Article 32 of the Indian Constitution are restricted only to the protection of Fundamental Rights. In contrast, under Article 226 of the Indian Constitution, the writ can be issued for the protection of Fundamental Rights and the other purpose furthermore.
- Article 32 of the Indian Constitution falls under Part III; hence it's a Fundamental Right, whereas Article 226 of the Indian Constitution isn't a Fundamental Right.
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Different Types of Writs In India
There are five types of writs under Articles 32 and 226 of the Indian Constitution. They are:
- Habeas Corpus.
- Quo Warranto.
Let us discuss in a deeper sense.
1. Writ of Habeas Corpus
- Habeas Corpus literally means to possess the body. it's a prerogative writ. it's an order of release. It provides a remedy for someone who is wrongfully detained or restrained. Prerogative means a right or privilege exclusive to a specific individual or class.
- The purpose of Habeas Corpus isn't to punish the official guilty for illegal confinement or damage but to release the person.
- The writ can not be issued for the discharge of an individual who is in judicial custody or police custody.
- In Smt. Jayamma vs the State of Karnataka, the court held that the Writ of Habeas corpus may be used against the State still because the individual (who is detaining someone unlawfully).
- Even at the time of National Emergency, the Writ of Habeas corpus for the enforcement of Fundamental Rights guaranteed under Article 20 and Article 21 is maintainable.
- It is to be noted that the principle of constructive issue is inapplicable to illegal detention and doesn't bar subsequent petition under Article 32 of the Indian Constitution because the Writ of Habeas Corpus.
When the Writ of Habeas Corpus can't be used?
Writ of Habeas Corpus can not be utilized in the subsequent four conditions:
- when detention is lawful.
- when there's contempt of court.
- when detention is not in the jurisdiction of the court it means outside jurisdiction.
- when detention is by a contempt court.
2. Writ of Mandamus
- Mandamus literally means a command. it's issued:
- In favour of the one that establishes a right in itself,
- Against an individual who includes a duty to perform but hasn't done so.
- The Writ of Mandamus covers courts, tribunal, board, administrative authority, corporation, or an individual who is guaranteed to perform some duty fixed by law or related to the office occupied by the person.
- The Writ of Mandamus is very discretionary, that the relief can not be claimed as a right.
- Under the Writ of Mandamus, the court can compel an authority to try and do his duties or exercise his power or prevent from doing an act. Here the word ‘authority’ includes governmental, semi-governmental also and judicial bodies.
Conditions for Writ of Mandamus.
- There must be a lawful violation of rights.
- There should be a responsibility to perform.
- The petition is to be filed in honestness.
- There must be no other remedy available in other laws.
3. Writ of Certiorari
Certiorari means to certify. It's derived from common law. The Writ of Certiorari is correct in nature. It's a command or an order issued to a judiciary or tribunal, board, authorities, officers by state supreme court or Supreme Court to submit the records to review.
- If the order by such a court is without jurisdiction or against the principle of Natural Justice, then such orders are quashed.
- Grounds for issuing the Writ of Certiorari.
- If the court issues an order without jurisdiction.
- If generally, the judicial court takes the excess jurisdiction.
- If an order may be a violation of Natural Justice or is unconstitutional.
Against whom the Writ of Certiorari cannot lie?
The Writ of Certiorari won't lie against the following:
- Private authority.
Who may apply?
- Normally, the party whosoever rights are violated may apply.
- If an issue affects the general public at large, a person may apply.
4. Writ of Prohibition
Prohibition writ means to forbid. Prohibition writ is preventive in nature. It prevents the judiciary from exceeding its jurisdiction or usurping the jurisdiction that it doesn't possess. The Writ of Prohibition is offered only against judicial and quasi-judicial authorities.
Against whom the Writ of Prohibition can't be exercised?
Writ of Prohibition can't be exercised against the following:
- Administrative authorities.
- Legislative bodies.
- Private individuals.
5. Writ of Quo Warranto
Quo warranto means by what authority. the Writ of hearing aims to test the legality of a person’s claim to a post. It is issued to test the claim of office only. If the person is found not entitled to it office, he are often far from it.
Against whom the Writ of hearing cannot lie?
The Writ of hearing cannot lie against the following:
- Private office.
- Ministerial office.
Conditions to issue of the Writ of hearing.
It is often issued only in respect of the general public office. Such a place should be of permanent character.
Such a position should be created by a statute or by the Constitution.
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