Constitutional Writs

1
COLLEGE – JAI NARAIN VYAS UNIVERSITY, JODHPUR
NAME – SHUBHAM MODI
CLASS – BBA LLB 5TH YEAR
Shubhammodi93@gmail.com
WRITS IN INDIAN CONSTITUTION
INTRODUCTION
The Indian Constitution empowers the Supreme Court and High Courts to
issue writs for enforcement of any of the fundamental rights conferred by Part
III of Indian Constitution.
The writ issued by Supreme Court and High Court differs mainly in three
aspects:
a) The Supreme Court can issue writs only for the enforcement of fundamental
rights whereas a High Court can issue writs for enforcement of fundamental
rights along with “ for any other purpose” (refers to the enforcement of any legal
right).
b) SC can issue writ against a person or government throughout the territory

whereas High Court can issue writs against a person residing or against a
government located within its territorial jurisdiction or outside its jurisdiction
only if the cause of action arises within the territorial jurisdiction.
c) SC writs are under Article 32 which in itself is a fundamental right thus SC

cannot refuse to exercise its writ jurisdiction. Whereas article 226 is
discretionary thus HC can refuse to exercise its writ jurisdiction.
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WRITS
HIGH COURT SUPREME COURT

Under Under
Article 226 Article 32
of of
Constitutio Constitutio
n of India n of India
Habeas Corpus Certiorari Prohibition Quo Warranto Mandamus
CHART OF KINDS OF WRITS
TYPES OF WRITS:
WHO CAN FILE AN APPLICATION-
An application for habeas corpus can be made by any person on behalf of the
prisoner as well as by the prisoner himself, subject to the rules and conditions
framed by various High Courts. The writ of habeas corpus is an effective
means of immediate release from unlawful detention whether in prison or
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private custody. Physical confinement is not necessary to constitute detention.
Control and custody are sufficient.1
Thus if a child is forcibly kept apart from his parents, if a man is wrongfully
kept in confinement as a lunatic, if a nun is alleged to be prevented from
having her covenant, if, in short, any man, woman or child is or is asserted
apparently on good grounds, to be deprived, of liberty, the Court will always
issue a writ of habeas corpus to any one who has the aggrieved person in his
custody and have such person brought to the Court and if he is suffering
restraint without lawful cause, set him free."2
Legal background
Under the Constitution, Article 32 gave a full-fledged jurisdiction to the
Supreme Court to issue habeas corpus. Since it constituted a part of Part III of
the Constitution, the right to habeas corpus was given to the various High
Courts under Article 226. These provisions made the statutory restriction
embodied under Section 491 of Criminal Procedure Code, unimportant. Being
a guaranteed right under Article 32, habeas corpus could not be suspended
except under Article 359 read with clause (4) of Article 32, i.e., where
proclamation of an emergency is in operation by the order of the President.
When the Writ does not lie
1 Cox v. Haiker (1819) 15 AC 506
2 Dicey – Law of the Constitution 9 th edn., p.219
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It is a writ in the nature of calling upon the person who has detained another
to produce the latter before the Court in order to let the Court know the
grounds on which he has been confined and to set him free if there is no legal
justification for the imprisonment. The writ will not lie in the following
circumstances :—
1. If it appears on the face of the record that the detention of the person
concerned is in execution of a sentence on indictment of a criminal charge.
Even if in such cases it is open to investigate the jurisdiction of the Court
which convicted the petitioner, but the mere jurisdiction would not justify
interference by habeas corpus. In Bohar Singh v. State of Punjab,3 the Court
held that a convict undergoing imprisonment under the judgment of a criminal
Court which has become final, cannot prefer and maintain a writ of habeas
corpus to assail his detention. A writ of habeas corpus would not lie against a
considered judicial judgment of the High Court on the alleged tenuous ground
of an infraction of Article 21 of the Constitution. No writ would lie against the
judicial process established by law.
2. In habeas corpus proceedings the Court is to have regard to the
legality or otherwise of the detention at the time of the return and not with
reference to the date of institution of the proceedings. It was, thus, held in
Gopalan v. State,4 that if a fresh and valid order justifying the detention was
3 AIR 1981 NOC 196 (Punj and Har).
4 AIR 1966 SC 816 (868).
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made by the time of the return to the writ, the Court cannot release the detenu
whatever might have been the defect of the order in pursuance of which he was
arrested or initially detained.
3. There is no right to habeas corpus where a person is put into physical
restraint under a law unless the law is unconstitutional or the order is ultra
vires the statute.5 But the petitioner can challenge the constitutionality of a law
in a habeas corpus proceeding and the Court is bound to release him if the law
is held to be unconstitutional.6
4. Under Article 226, a petition for habeas corpus would lie not only where he
is detained by an order of the State Government but also when he is detained
by another private individual. In Vidya Varma v. Shiva Narain,7 the Supreme
Court stated that no petition would lie to Supreme Court under, Article 32 in
the latter case, because Article 32 does not apply unless a "fundamental right"
has been infringed.
The writ of habeas corpus is issued by a High Court only when the person or
authority against whom the writ is sought is within the territorial jurisdiction
5 State of Punjab v. Ajaib Singh, 1953 SCR 254.
6 Makkan Singh v. State of Punjab, (1950) SCR 88.
7 AIR 1959 SC 357.
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of the High Court, on the date of the application as well as at the time when
the writ is sought to be issued.
Where during the pendency of an appeal against an order refusing an
application for habeas corpus the applicant is released from custody, the
appeal must be dismissed and the Appellate Court cannot be asked to
pronounce upon the correctness of the judgment by which habeas corpus has
been refused.8 But a temporary release on bail does not bar an application for
habeas corpus to test the legality of the arrest.9
Grounds of Habeas Corpus :
The writ of habeas corpus is in the nature of an order, the effect of which is the
release of the petitioner from custody of any person, or public authority, who
has illegally detained the petitioner. The following grounds may be stated for
the grant of the writ ;
(1) The applicant must be in custody;
(2) The application for the grant of the writ of habeas corpus ordinarily should
be by the husband or wife or father or son of the detenu. Till a few years back
the writ of habeas corpus could not be entertained if it is filed by a stranger.
But now the position has completely changed with the pronouncements of the
Supreme Court in a number of cases. 10 Even a postcard written by a detenu
8 Keshav v. Emperor, AIR 1944 FC 24.
9 Samual v. District Magistrate, 56 All 159
10 See Icchu Devi v. Union of India, AIR 1980 SC 1983
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from jail or by some other person on his behalf inspired by social objectives can
be taken as a writ-petition.
In Sunil Batra v. Delhi Administration II11 the Court initiated the proceedings on
a letter by a co-convict, alleging inhuman torture to his fellow convict. Krishna
lyer, J. treated the letter as a petition for habeas corpus. He dwelt upon
American cases where the writ of habeas corpus has been issued for the
neglect of state penal facilities like over-crowding, in sanitary facilities,
brutalities, constant fear of violence, lack of adequate medical facilities,
censorship of mails, inhuman isolation, segregation, inadequate rehabilitative
or educational opportunities.
The law before the liberalisation of locus standi concept in relation to the writ
of habeas corpus has characteristically been elucidated in an early case of In re
Hardial Singh12 In this case, fifteen persons were arrested under Section 3 of
the Punjab Public Safety Act, 1947, for being members of the Rastriya Swayam
Sewak Sangh. One Jagdish Mittar of Simla applied for release, of all such
persons under Section 491, Criminal Procedure Code of 1898. The petitioner in
the present case is a resident of Simla. He does not seem even to have been
aware of their movements. I wish some rules should be framed by the
authorities concerned limiting the right to move petitions under Section 491,
Cr. P.C., 1898, to the detenues, their relations and the most of their friends, I
11 AIR 1980 SC 1579.
12 AIR 1951 Punj 216.
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understand such is the practice of England and it will save a lot of judicial time
and a good deal of unnecessary embarrassment to the authorities if a similar
practice is introduced in this country. To allow irresponsible people to move
petitions of this nature on behalf of the persons about whose affairs they have
really no knowledge merely on account of the existence between them of any
political or other affinity seems to me prejudicial to the proper and efficient
administration of justice and otherwise undesirable."
(3) A person has no right to present successive applications for habeas corpus
to different Judges of the same court.13
In Bansi v. Additional Director of Consolidation of Holdings 14 it has been held
that if a writ-petition is dismissed in limine and an order is pronounced in that
behalf, if whether or not a dismissal would constitute a bar, would depend
upon the nature of order. If the order is on merits, it would be a bar, if the
order shows that the dismissal was for the reasons that the petitioner was
guilty of laches or that he had an alternative remedy, it would not be a bar
except in certain cases. As regards the applicability of res judicata to the writ of
habeas corpus the Supreme Court has engrafted an exception to the effect that
where the petition had been rejected by the High Court, a fresh petition can be
filed to Supreme Court under Article 3215
13 P.L. Lakhanpal v. Union of India, AIR 1967 SC 908
14 AIR 1967 Punj 28 (FB).
15 Ghulam Sarwar v. Union of India AIR 1967 SC 1335
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(4) All the formalities to arrest and detention have not been complied with and
the order of arrest has been made mala fide or for collateral purpose. When a
Magistrate did not report the arrest to the Government of the Province as was
required under Section 3(2) of the Punjab Safety Act, 1947, the detention was
held illegal.16 If there is an intentional delay in communicating the order with a
view to preventing the detaining persons from getting redress from
Government, mala fides may be attributed to the Government.
Whether mala fide could be inferred from long delay in communicating the
detention order to Government was discussed by Subba Rao, J., in
Venkatramani v. Commr. of Police Madras.17 He said : "If a person is detained
and with a view to prevent him from taking step to get redress from
Government if the appropriate authority intentionally delays the
communication of the said order to the Government, it is possible to infer or
attribute mala fide to the authority concerned."
(5) The order must be defective in substance, e.g., mis-description of detenu,
failure to mention place of detention, etc. A warrant which directs the
committal of James Hasting Soleman Moses in Alter Kaufman v. Government of
Bombay18 without any description of him, is invalid since it may lead to the
16 Amar Singh v. Crown AIR 1949 Punj 130
17 AIR 1947 Mad 605
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arrest of ‘any person bearing the name. Hence complete description of the
detenu should be given in the order of detention.
(6) It must be established that the detaining authority was not satisfied that
the detenu was committing prejudicial acts, etc. It may be noted in this
connection that the sufficiency of the material on which the satisfaction is
based cannot be subject of scrutiny by the court.
In Icchu Devi v. Union of India,19 the Court emphasized upon the need of serving
on the detenu copies of several documents on whom the authority had relied in
grounds of detention. The Court .pointed out that in case of an application for
a writ of habeas corpus, it does not. as a matter of practice, follow strict rules
of pleading nor does it place undue emphasis on the question on whom the
burden of proof lies. Even a postcard by a detenu from jail is sufficient to
activise this Court into examining the legality of detention.
The Court has consistently shown great anxiety for personal liberty and refused
to dismiss a petition merely on the ground that it does not disclose a prima
facie case invalidating the order of detention. It has adopted the liberal attitude
in view of the peculiar socio-economic conditions prevailing in the country.
People in general are poor, illiterate and lack financial resources. It would
18 18 Bom 636.
19 AIR 1980 SC 1983
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therefore be not desirable to insist that the petitioner should set out clearly and
specifically the grounds on which he challenges the order of detention.
The scope of the writ of habeas corpus has considerably increased by virtue of
the decision of the Supreme Court in Maneka Gandhi v. Union of India20 and
also by the adoption of forty-fourth amendment to the Constitution. Since the
judicial interpretation of Article 21 has extended the magnitude of the concept
of the personal liberty and the Court introduced the element -of fairness and
justness in the 'procedure established by law', now a writ of habeas corpus
would lie if the law depriving a person of his personal liberty is not fair, just
and equitable. Next by the forty-fourth amendment in 1978, the right to
personal liberty under Article 21 cannot be suspended even during emergency.
Hence the writ of habeas corpus will be available to the people against any
wrongful detention.
Habeas corpus cannot be used as a device to evade the ordinary law for the
review, revision or appeal of a judgment under which a person is imprisoned.
"An involuntary and illegal confinement of the person in praesenti is the
particular concern of habeas corpus." For the issue of habeas corpus, the
wrongful restraint must exist at the time when the Court has to make the rule
absolute for its issue. If at the time when the rule for the writ is heard and
decided, detention begun originally under an invalid order, has been put in by a
20 (1978) 1 SCC 248
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proper and valid authority even after the presentation of habeas corpus
petition it will be refused.21The application should be in proper manner.22
It is generally a wholesome rule that whenever there is a special alternative
remedy, habeas corpus should not be given. But it is the normal rule. If need
arises, Judges cannot deny the writ.23
HABEAS CORPUS
Introduction - Habeas corpus is a Latin term which literally means " have the
body", “Have his body”, “Bring the body”. The concept of writ of habeas corpus
has originated from England. This is a writ or legal action which can be used
by a person to seek relief from illegal detention.
PURPOSE
The writ is a direction of the Court to a person who is detaining another,
commanding him to bring the body of the person in his custody at a specified
time to a specified place for a specified purpose. Examples are as follows :-
(a) Testing the validity of detention under preventive detention laws;
(b) Securing the custody of a person alleged to be lunatic;
(c) Securing the custody of a minor;
(d) Securing the custody of a marriage partner;
21 Naranjan Singh v. State of Punjab, AIR 1952 SC 106
22 Ram Narayan Singh v. State of Punjab, AIR 1953 SC 277
23 Gopalji v. Shree Chand, AIR 1955 All 28.
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(e) Testing the validity of detention for a breach of privileges by house;
(f) Testing the validity of detention by the executive during emergency, etc.
A writ of habeas corpus has only one purpose: to set at liberty a person who is
confined without legal justification; to secure release from confinement of a
person unlawfully detained. It is an order by a Court to the detaining authority
to produce the arrested person before it so that it may examine whether the
person has been detained lawfully or otherwise. If the Court is convinced that
the person is illegally detained, it can issue orders for his release. The writ is
issued not only against authorities of the State but also to private individuals
or organizations if necessary.
Sheela Barse V State of Maharashtra-
Facts of PIL -
a) The petitioner, Sheela Barse, a journalist, complaining of custodial

violence to women prisoners whilst confined in the police lock up in the
city of Bombay.
b) The petitioner stated in her letter that she interviewed fifteen women
prisoners in the Bombay Central Jail with the permission of the
Inspector General of Prisons between 11 and 17th May, 1982 and five out
of them told her that they had been assaulted by the police in the police
lock up.
c) Of these five who complained of having been assaulted by the police, the
petitioner particularly mentioned the cases of two, namely, Devamma
and Pushpa Paeen who were allegedly assaulted and tortured whilst they
were in the police lock up.
d) Since these allegations were made by the women prisoners interviewed

by the petitioner and particularly by Devamma and Pushpa Paeen and
there was no reason to believe that a journalist like the petitioner would
invent or fabricate such allegations if they were not made to her by the
women prisoners, this Court treated the letter of the petitioner as a writ
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petition and issued notice to the State of Maharashtra, Inspector General

of Prisons, Maharashtra, Superintendent, Bombay Central Jail and the
Inspector General of Police, Maharashtra calling upon them to show
cause why the writ petition should not be allowed.
e) It appears that on the returnable date of the show cause notice no

affidavit was filed on behalf of any of the parties to whom show cause
notice was issued.
2. Writ of Mandamus
Introduction - The Latin word 'mandamus' means 'we command'. The writ of
'mandamus' is an order of the High Court or the Supreme Court commanding
a person or a body to do its duty. Usually, it is an order directing the
performance of ministerial acts. A ministerial act is one which a person or
body is obliged by law to perform under given circumstances.
When it can be issued :-

1. Existence of a legal right.
2. Violation of the right of petitioner.
3. Request of petitioner for compliance of public duty rejected.
4. No alternative remedy is to be there.
KINDS OF WRIT OF MANDAMUS :-

Alternative Mandamus: A mandamus issued upon the first application for
relief, commanding the defendant either to perform the act demanded or to
appear before the court at a specified time to show cause for not performing it.
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Peremptory Mandamus: An absolute and unqualified command to the

defendant to do the act in question. It is issued when the defendant defaults
on, or fails to show sufficient cause in answer to, an alternative mandamus.
Continuing Mandamus: A Mandamus issued to a lower authority in general

public interest asking the officer or the authority to perform its
tasks expeditiously for an unstipulated period of time for preventing
miscarriage of justice.
Example - A licensing officer is obliged to issue a license to an applicant if the

latter fulfills all the conditions laid down for the issue of such license.
Similarly, an appointing authority should issue a letter of appointment to a
candidate if all the formalities of selection are over and if the candidate is
declared fit for the appointment. But despite the fulfillment of such conditions,
if the officer or the authority concerned refuses or fails to issue the
appointment letter, the aggrieved person has a right to seek the remedy
through a writ of 'mandamus'.
CASE LAW :- VISHAKA V STAATE OF RAJASTHAN-

FACTS - 1. That the immediate CAUSE for the filing of this writ petition is an
incident of alleged brutal gang rape of a social worker in a village of
Rajasthan.
2. That The incident reveals the hazards to which a working woman may be
exposed and the depravity to which sexual harassment can degenerate; and
the urgency for safeguards by an alternative mechanism in the absence of
legislative measures.
3. That In the absence of legislative measures, the need is to find an effective
alternative mechanism to fulfil this felt and urgent social need.
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4. That It is a clear violation of the rights under Articles 14 15 and 21 of the
Constitution. One of the logical consequences of such an incident is also the
violation of the victim's fundamental right under Article 19(1)(g) 'to practice
any profession or to carry out any occupation, trade or business'.
5. That the fundamental right to carry on any occupation, trade or profession
depends on the availability of a "safe" working environment.
6. That Instances of sexual harassment resulting in violation of fundamental

rights of women workers under Articles 14 19 and 21 are brought before
supreme court by filing PIL for redress under Article 32, an effective redressal
requires that some guidelines should be laid down for the protection of these
rights to fill the legislative vacuum.
ISSUES INVOLVED-
1. Whether sexual harassment at workplace violates the fundamental

rights of women’s or not ?
Yes, sexual harassment at workplace violates the fundamental rights of
women’s. This PIL has been filed for the enforcement of the fundamental
rights of working women under Articles 14 19 and 21 of the Constitution of
India in view of the prevailing climate in which the violation of these rights is
not uncommon.
2. Whether there is any urgency to provide safeguards for preventing

sexual harassment of women’s at workplace or not ?
 Yes, there is urgency to provide safeguards for preventing sexual harassment
of women’s at workplace. The various incident reveals the hazards to which a
working woman may be exposed and the depravity to which sexual harassment
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can degenerate; and the urgency for safeguards by an alternative mechanism in

the absence of legislative measures.
3. Whether there is any need to apply an effective alternative mechanism

to fulfill this felt in the absence of any legislative measures or not?
 Yes, there is need to apply an effective alternative mechanism to fulfill this

felt in the absence of any legislative measures due to urgent social need , to
prevent violations of fundamental rights of working women’s, to administer
complaints of women’s, to quick redressal of such complaints etc.
4. Whether sexual harassment of women’s at workplace is the matter of
public importance or not?
 Yes, sexual harassment of working women’s at workplace is the matter of

public importance and should be consider present PIL with due care.
5. Whether there is any “SAFE” working environment for women’s at

workplace or not ?
No, In India there is no “SAFE” working environment for women’s at

workplace. The fundamental right to carry on any occupation, trade or
profession depends on the availability of a "safe" working environment.
3. Writ of Certiorari
Introduction - Certiorari means to be certified. It is issued by the higher
court to the lower court either to transfer the case pending with the latter to
itself or to squash the order already passed by an inferior court, tribunal or
quasi judicial authority. The conditions necessary for the issue of writ of
certiorari.
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a. There should be court, tribunal or an officer having legal authority to

determine the question with a duty to act judicially.
b. Such a court, tribunal or officer must have passed order acting without
jurisdiction or in excess of the judicial authority vested by law in such court,
tribunal or officer.
c. The order could also be against the principles of natural justice or the order
could contain an error of judgment in appreciating the facts of the case.
When it can be filed-

1. Error of jurisdiction.
a. Lack of jurisdiction.
b. Excess of jurisdiction.
2. Abuse of jurisdiction.
3. Jurisdictional facts.
4. Error of law apperant on the face of record.
5. Violation of the principles of Natural justice.
6. Order issued by authority is fraudulent
4. Writ of Prohibition
Introduction - The Writ of prohibition means to forbid or to stop and it is

popularly known as 'Stay Order'. This writ is issued when a lower court or a
body tries to transgress the limits or powers vested in it. The writ of prohibition
is issued by any High Court or the Supreme Court to any inferior court, or
quasi judicial body prohibiting the latter from continuing the proceedings in a
particular case, where it has no jurisdiction to try. After the issue of this writ,
proceedings in the lower court etc. come to a stop.
5. Writ of Quo Warranto
Introduction - The word Quo-Warranto literally means "by what warrants?" or

"what is your authority"? It is a writ issued with a view to restrain a person
19
from holding a public office to which he is not entitled. The writ requires the
concerned person to explain to the Court by what authority he holds the office.
If a person has usurped a public office, the Court may direct him not to carry
out any activities in the office or may announce the office to be vacant. Thus
High Court may issue a writ of quo-warranto if a person holds an office beyond
his retirement age.
http://gsupsc.blogspot.in/2013/04/writs-in-indian-constitution.html
Any provision in any Constitution for Fundamental Rights is meaningless

unless there are adequate safeguards to ensure enforcement of such
provisions. Since the reality of such rights is tested only through the judiciary,
the safeguards assume even more importance. In addition, enforcement also
depends upon the degree of independence of the Judiciary and the availability
of relevant instruments with the executive authority. Indian Constitution, like
most of Western Constitutions, lays down certain provisions to ensure the
enforcement of Fundamental Rights. These are as under: (a) The Fundamental
Rights provided in the Indian Constitution are guaranteed against any
executive and legislative actions. Any executive or legislative action, which
infringes upon the Fundamental Rights of any person or any group of persons,
can be declared as void by the Courts under Article 13 of the Constitution. (b)
In addition, the Judiciary has the power to issue the prerogative writs. These
are the extra- ordinary remedies provided to the citizens to get their rights
enforced against any authority in the State. These writs are - Habeas corpus,
Mandamus, Prohibition, Certiorari and Quo- warranto. Both, High Courts as
well as the Supreme Court may issue the writs.
(c) The Fundamental Rights provided to the citizens by the Constitution cannot
be suspended by the State, except during the period of emergency, as laid down
in Article 359 of the Constitution. A Fundamental Right may also be enforced
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by way of normal legal procedures including a declaratory suit or by way of

defence to legal proceedings. However, Article 32 is referred to as the
"Constitutional Remedy" for enforcement of Fundamental Rights. This provision
itself has been included in the Fundamental Rights and hence it cannot be
denied to any person. Dr. B.R.Ambedkar described Article 32 as the most
important one, without which the Constitution would be reduced to nullity. It is
also referred to as the heart and soul of the Constitution. By including Article
32 in the Fundamental Rights, the Supreme Court has been made the
protector and guarantor of these Rights. An application made under Article 32
of the Constitution before the Supreme Court, cannot be refused on technical
grounds. In addition to the prescribed five types of writs, the Supreme Court
may pass any other appropriate order. Moreover, only the questions pertaining
to the Fundamental Rights can be determined in proceedings against Article32.
Under Article 32, the Supreme Court may issue a writ against any person or
government within the territory of India. Where the infringement of a
Fundamental Right has been established, the Supreme Court cannot refuse
relief on the ground that the aggrieved person may have remedy before some
other court or under the ordinary law. The relief can also not be denied on the
ground that the disputed facts have to be investigated or some evidence has to
be collected. Even if an aggrieved person has not asked for a particular writ,
the Supreme Court, after considering the facts and circumstances, may grant
the appropriate writ and may even modify it to suit the exigencies of the case.
Normally, only the aggrieved person is allowed to move the Court. But it has
been held by the Supreme Court that in social or public interest matters, any
one may move the Court. Any piece of legislation or law, which tends to
interfere with the power of Supreme Court under Article 32 shall be declared as
void. Hence, there is no way that the legislative or the executive authority can
by-pass the power and responsibility entrusted to the Supreme Court by the
Constitution. In a famous case titled as "Gopalan Vs State of Madras", the
Supreme Court declared Section 14 of the Preventive Detention Act of 1950 as
void, because as per the Supreme Court, the said Section acted as an iron
21
curtain around the acts of the executive authority making the order of
preventive detention.
WRITS
2. The Writ of Mandamus : Mandamus is a Latin word, which means "We

Command". Mandamus is an order from a superior court to a lower court or
tribunal or public authority to perform an act, which falls within its duty. It is
issued to secure the performance of public duties and to enforce private rights
withheld by the public authorities. Simply, it is a writ issued to a public official
to do a thing which is a part of his official duty, but, which, he has failed to do,
so far. This writ cannot be claimed as a matter of right. It is the discretionary
power of a court to issue such writs.
3. The Writ of Quo-Warranto : The word Quo-Warranto literally means "by what
warrants?" It is a writ issued with a view to restraining a person from acting in
a public office to which he is not entitled. The writ of quo- warranto is used to
prevent illegal assumption of any public office or usurpation of any public
office by anybody. For example, a person of 62 years has been appointed to fill
a public office whereas the retirement age is 60 years. Now, the appropriate
High Court has a right to issue a writ of quo-warranto against the person and
declare the office vacant.
4. The Writ of Prohibition : Writ of prohibition means to forbid or to stop and it

is popularly known as 'Stay Order'. This writ is issued when a lower court or a
body tries to transgress the limits or powers vested in it. It is a writ issued by a
superior court to lower court or a tribunal forbidding it to perform an act
outside its jurisdiction. After the issue of this writ, proceedings in the lower
court etc. come to a stop.
5. The Writ of Certiorari : Literally, Certiorari means to be certified. The writ of

certiorari is issued by the Supreme Court to some inferior court or tribunal to
transfer the matter to it or to some other superior authority for proper
consideration. Writs of Prohibition and Certiorari The writ of prohibition is
issued by any High Court or the Supreme Court to any inferior court,
prohibiting the latter to continue proceedings in a particular case, where it has
no legal jurisdiction of trial. While the writ of mandamus commands doing of
22
particular thing, the writ of prohibition is essentially addressed to a

subordinate court commanding inactivity. Writ of prohibition is, thus, not
available against a public officer not vested with judicial or quasi-judicial
powers. The Supreme Court can issue this writ only where a fundamental right
is affected. The writ of certiorari can be issued by the Supreme Court or any
High Court for quashing the order already passed by an inferior court. In other
words, while the prohibition is available at the earlier stage, certiorari is
available on similar
grounds at a later stage. It can also be said that the writ of prohibition is
available during the tendency of proceedings before a sub-ordinate court,
certiorari can be resorted to only after the order or decision has been
announced. There are several conditions necessary for the issue of writ of
certiorari, which are as under: (a) There should be court, tribunal or an officer
having legal authority to determine the question of deciding fundamental rights
with a duty to act judicially. (b) Such a court, tribunal or officer must have
passed an order acting without jurisdiction or in excess of the judicial
authority vested by law in such court, tribunal or law. The order could also be
against the principle of natural justice or it could contain an error of judgment
in appreciating the facts of the case.
Om Prakash is a Human Rights Activist, Advocate and Solicitor, he lives at E /

208, Unit - 8, Bhubaneswar

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1

COLLEGE – JAI NARAIN VYAS UNIVERSITY, JODHPUR

NAME – SHUBHAM MODI

CLASS – BBA LLB 5TH YEAR

WRITS IN INDIAN CONSTITUTION

b) SC can issue writ against a person or government throughout the territory

c) SC writs are under Article 32 which in itself is a fundamental right thus SC

HIGH COURT SUPREME COURT

Habeas Corpus Certiorari Prohibition Quo Warranto Mandamus

CHART OF KINDS OF WRITS

WHO CAN FILE AN APPLICATION-

framed by various High Courts. The writ of habeas corpus is an effective

means of immediate release from unlawful detention whether in prison or

private custody. Physical confinement is not necessary to constitute detention.

Control and custody are sufficient.1

kept in confinement as a lunatic, if a nun is alleged to be prevented from

apparently on good grounds, to be deprived, of liberty, the Court will always

restraint without lawful cause, set him free."2

Under the Constitution, Article 32 gave a full-fledged jurisdiction to the

embodied under Section 491 of Criminal Procedure Code, unimportant. Being

proclamation of an emergency is in operation by the order of the President.

When the Writ does not lie

1 Cox v. Haiker (1819) 15 AC 506

2 Dicey – Law of the Constitution 9 th edn., p.219

concerned is in execution of a sentence on indictment of a criminal charge.

Even if in such cases it is open to investigate the jurisdiction of the Court

interference by habeas corpus. In Bohar Singh v. State of Punjab,3 the Court

held that a convict undergoing imprisonment under the judgment of a criminal

of an infraction of Article 21 of the Constitution. No writ would lie against the

judicial process established by law.

2. In habeas corpus proceedings the Court is to have regard to the

reference to the date of institution of the proceedings. It was, thus, held in

3 AIR 1981 NOC 196 (Punj and Har).

4 AIR 1966 SC 816 (868).

arrested or initially detained.

3. There is no right to habeas corpus where a person is put into physical

is detained by an order of the State Government but also when he is detained

by another private individual. In Vidya Varma v. Shiva Narain,7 the Supreme

has been infringed.

5 State of Punjab v. Ajaib Singh, 1953 SCR 254.

6 Makkan Singh v. State of Punjab, (1950) SCR 88.

7 AIR 1959 SC 357.

the writ is sought to be issued.

Where during the pendency of an appeal against an order refusing an

appeal must be dismissed and the Appellate Court cannot be asked to

habeas corpus to test the legality of the arrest.9

Grounds of Habeas Corpus :

the grant of the writ ;

(1) The applicant must be in custody;

the writ of habeas corpus could not be entertained if it is filed by a stranger.

Supreme Court in a number of cases. 10 Even a postcard written by a detenu

8 Keshav v. Emperor, AIR 1944 FC 24.

9 Samual v. District Magistrate, 56 All 159

10 See Icchu Devi v. Union of India, AIR 1980 SC 1983

a letter by a co-convict, alleging inhuman torture to his fellow convict. Krishna

neglect of state penal facilities like over-crowding, in sanitary facilities,

brutalities, constant fear of violence, lack of adequate medical facilities,

censorship of mails, inhuman isolation, segregation, inadequate rehabilitative

of habeas corpus has characteristically been elucidated in an early case of In re

aware of their movements. I wish some rules should be framed by the

11 AIR 1980 SC 1579.

12 AIR 1951 Punj 216.

and a good deal of unnecessary embarrassment to the authorities if a similar