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A note on Writs and relevant Articles of the Constitution of India

A note on Writs and relevant Articles of the Constitution of India

A ‘writ’ is a written command,issued in the name of a competent court, to act or abstain from actingin a way specified therein. Writs have originated in Britain,and have undergone evolutionsince the 11th century AD. Britain has an unwritten constitution, however, for administrative purposes, the king used to issue written orders from time to time. These written orders were known as writs.In Britain, by the Administration of Justice (Miscellaneous Provisions) Act, 1938, the word ‘writ’ has been omitted as a prefix to various writs, except for the ‘Writ of Habeas Corpus’.

The makers of our Constitution were highly inspired by the significance of writs. But as a consequence of the aforementioned development in Britain, while drafting the Constitution of India, wherever the word writ appears, the expression ‘in the nature of’, meaning ‘having the characteristics of’ or ‘similar to’,has been used.

Our constitution recognises that the courts shall have the “…power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever may be appropriate, …”. From this provision it is clear that the competent courts may issue writs including, but not limited to, the five writs specified.

Now, to understand writs better, let us have a brief outline about some relevant constitutional provisions.Let us briefly discuss the provisions of Articles 12, 13, 20, 21, 32, 139, 226, 359 of the Constitution of India.

 Article 12

Article 12 defines the meaning of ‘State’ for the purpose of Fundamental Rights [Articles 12 – 35]. Most of the Fundamental Rights provided to the citizens are protected against the State. Therefore, it is important to know the scope of the term ‘State’. ‘State’ includes the Union Government, President of India, State Governments, Governors, local or other authorities within the territory of India or under the control of Government of India. ‘State’ also includes any department of the government (like the Income tax Department) and any institution controlled by the government or performs sovereign powers (like LICI, ONGC, Electricity Boards, etc.).

 Article 13

The Constitution of India has commencement from January 26, 1950. Laws which were in force in India before the commencement of the Constitution shall be void, if they are inconsistent with the Fundamental Rights. This is determined through the Doctrine of Severability and invalid or inconsistent provisions shall be eclipsed by the Fundamental Rights and they become inoperative, but not dead.

If in the future there is any amendment, and the amended provision is consistent with the Fundamental Rights such provisions shall become active. The state shall not make any law which takes away or abridges the Fundamental Rights.And if there is a contravention, then to the extent of contravention, such a law shall be void. In this Article “law” includes any ordinance, order, bye-law, rule, regulation, notification etc. having force of law. However, administrative instructions or guidance,which are not meant for legal obligation and personal laws, are not laws within the meaning of this Article.Any amendment made under Article 368 cannot be challenged under Article 13 even if this is inconsistent with the Fundamental Rights.

 Article 20                                                                     

Article 20 ensures protection in respect of conviction of offences, except for violation of the law in force at the time of committing the offence and penalty greater than what was in force then. Further for the same offence prosecution and punishment cannot be executed more than once.Also, no person accused of an offence shall be compelled to be a witness against himself. Thus, briefly it protects against ex post facto legislation, provides immunity from double punishment and self-incrimination.

 Article 21

Article 21 provides protection of life and personal liberty. It states, “No person shall be deprived of his life or personal liberty except according to procedure established by law.” When a person is unlawfully deprived of his “life” or “personal liberty” by the “State” then the claim under this article can be made.However, instead of the ‘State’, when private individuals cause these violations, claims under this article cannot be made. Right to life includes all those aspects of life and human dignity without which it is meaningless. Personal liberty includes right to privacy, right against illegal detention, etc. Rights under this article are considered as of supreme importance in a democratic society.

 Article 32

Article 32 states that the right to move the Supreme Court for enforcement of Fundamental Rights is guaranteed and it shall not be suspended except as otherwise provided [Article 359] by the Constitution. For enforcement of the Fundamental Rights the Supreme Court shall have power to issue directions or orders or writs (including the writs in the nature of those five writs specified above). This Article further states that the Parliament may, by law,empower any other court to exercise all, or any, of these powers within the local limits of its jurisdiction. A person can directly move to the Supreme Court for protection of Fundamental Rights but has to establish why he/she has not moved to High Court.

 Article 139

Parliament may, by law, confer on the Supreme Court power to issue directions, orders, or writs, in the nature ofthose five specified writs, for any purposes other than enforcement of the Fundamental Rights.

 Article 226

Under Article 226 High Court has powers to issue directions, orders, or writs, for the enforcement of Fundamental Rights and for any other purpose within its territories, to any person or authority or government. If cause of action arises within its territories,even then the High Court may exercise this power.

 Article 359

Article 359 authorises the President of India to suspend the right to move any court for the enforcement of fundamental rights during National Emergency however rights under Article 20 and 21 cannot be suspended even during National emergency.Fundamental Rights are not suspended, but their enforcement is. Suspension of enforcement related to only those fundamental rights that are specified in the Presidential Order and remain effective for the period of Emergency,or any part thereof. During operation of Presidential Order, the State may make any law or to take any executive action to which it is competent. The Presidential Order shall be laid before each House of Parliament, as soon as may be possible after it is made.

 Now let us discuss about the writs available in India.

Habeas Corpus literally means ‘to have the body of’. It is a writ through which a person or any other person on his/her behalf appeal against an unlawful detention or imprisonment to a competent court. Court orders the custodian of the person to bring the person to the court to determine whether the detention was lawful. This writ may be issued against public authorities as well as private individual. However, if detention is lawful then this writ cannot be issued but if it is unlawful then the detainee has to be released immediately. The detained person may be held incommunicado so other persons are allowed to move this writ on behalf of the detainee.This writ is one of the most efficient safeguards of personal liberty. If the proceeding is for contempt of a legislature or a court or detention is by a competent court or detention is outside the jurisdiction of the court then this writ is not applicable.

Mandamus literally means ‘we command’. Through this writ a command is issued by the competent court to a public official or a public body or a corporation or an inferior court or a tribunal, or government commanding him/it to perform his/its official duties that he/it has failed or refused to perform. Mandamus cannot be issued against a private individual/body or to enforce departmental instruction that does not possess statutory force or if the duty is discretionary and not mandatory or to enforce contractual obligation. Further this writ cannot be issued against the President of India, State Governors, Chief Justice of a High Court acting in judicial capacity.

Prohibition means ‘to forbid’. This writ is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction or if it acts against natural justice. It is popularly known as ‘Stay Order’. This writ can be issued only against judicial and quasi-judicial authorities but cannot be issued against administrative authorities, legislative bodies, private individuals or bodies.

Mandamus directs activity but prohibition directs inactivity.

Certiorarimeans ‘to be certified’ or ‘to be informed’.Through this writ Higher court asks lower court or tribunal to certify how it is dealing with the pending case.This writ is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of a lower court on the grounds of excess of jurisdiction or lack of jurisdiction or error of law. It cannot be issued against legislative bodies or private individuals or bodies.

Prohibition is only preventive but Certiorari is both preventive as well as curative. Both the writs are issued against legal bodies.

Quo-Warranto means ‘by what warrant or authority’. Where there is contravention of the Constitution or a statute in appointing a person to public office, this writ is issued. This writ is issued by the court to enquire into the legality of claim of a person to a public office, it prevents illegal usurpation of public office by a person. It can be issued only in case of a substantive public office of a permanent character created by a statute, or the Constitution. It cannot be issued in cases of ministerial office or private office.

 Supreme Court and High Courts

Supreme Court can issue writs only for the enforcement of Fundamental Rights, whereas a High Court can issue writs both for Fundamental Rights as well as for other purposes. Supreme Court has all India jurisdiction, whereas High Court can issue writs against a person residing, or against a government, or authority, located within its territorial jurisdiction only, or outside its jurisdiction only if the cause of action arises within its territorial jurisdiction. A remedy under Article 32 is in itself a Fundamental Right, andhence the Supreme Court may not refuse to exercise its writ jurisdiction.However, a remedy under Article 226 is discretionary, and hence the High Court may refuse to exercise its writ jurisdiction. Supreme Court is constituted as a defender and guarantor of the Fundamental Rights.

647
Mohan on April 07 2019 16:46:07

"writ" written in a lucid form. Thanks

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