5 TYPES OF WRITS | NOTES FOR UPSC LAW OPTIONAL MAINS


NATURE OF WRIT JURISDICTION :


NATURE : It is discretionary power of the courts.

Guiding Factors for exercising discretion

1.Locus Stand : Earlier as per traditional rule, only aggrieved party can file a petition now, any public Spirited person/citizen can file an petition for the grievances of the weak and the disadvantaged persons.


2.Alternative relief : One should generally exhaust all the remedies before seeking the Writ Jurisdiction. However this rule not applicable for breach of FR is prima facie established.


3.Res Judicata : Already decided case cannot be re-agitated before the Courts of Law. One person files an case in HC, which is dismissed. He cannot go to SC on the same matter to SC. However this principle not applicable to Writ of Habeas corpus.


4.LACHES : Laches/inordinate delay can be ground to disentitle to a remedy under Art.32.


5.Questions of facts are not decided by the courts in its writ jurisdiction. Only the question of law is entertained.


A.WRIT OF HABEAS CORPUS :

  • MEANING : You (shall) have the body /bring the body.

  • NATURE : It is in the nature of an order calling upon the person who has detained another to produce the latter before the court. If the grounds for detention are invalid (malafide/unconstitutional/ not authorized by law) or unlawful detention, then court can order to free him.

  • This writ operates as an effective bulwark of personal liberty + safeguards of individual freedom against arbitrary state action which violates FRs u/A. 19,21 & 22 of Constitution.

  • WHO CAN FILE > Under Articles 32 and 226, any person can move for this writ to the Supreme Court and High Court respectively .

  • IF SUSPENDED : If article 32 is suspended as per provisions of Art. 359, then one can move to High court under art.226.

  • NON-COMPLIANCE WILL RESULT IN CONTEMPT : Disobeying this writ is met with by punishment for contempt of court under the Contempt of Courts Act

CASE LAWS : Kanu Sanyal v. District Magistrate : the court may examine the legality of the detention without requiring the person detained to be produced before it


B.WRIT OF MANDAMUS : The word mandamus literally means "we command". The writ of mandamus is a command issued to direct any person, corporation, inferior court, or Government requiring him/it to do a particular thing specified therein, which pertains to his/its office and is further in the nature of a public duty.


CONDITION : The applicant must have a legal right to the performance of a legal duty by the person against whom the writ is prayed for. It is not issued if the authority has discretion.


TO WHOM? The Constitution, through Articles 226 and 32, enables mandamus to be issued by the High Courts and the Supreme Court to all authorities.


CANNOT DIRECT WHOM : President or the Governor of a State / private individual[ Barada Kanta v State of West Bengal].


GROUNDS FOR WRIT OF MANDAMUS : The Writ can granted against a public authority if : Acted against the law/ Exceeded his limits of power/ Acted with mala fides/ Did not apply his mind/ Abused his discretionary powers/ Did not take into account relevant consideration / Has taken into account irrelevant consideration.


C.WRIT OF PROHIBITION : It is to forbid or to stop called as “Stay Order”

WHEN >

  • Issued in cases where is excess of Jurisdiction and where there is absence of Jurisdiction.

  • When the proceedings are pending in the court.

  • Issued by both SC and HC’s to any inferior court or Quasi-Judicial Body but not against legislative or administrative body

While mandamus commands activity, prohibition commands inactivity, it is available only against judicial or quasi-judicial authorities and is not available against a public officer who is not vested with judicial functions. If abuse of power is apparent, this writ may be of right and not a matter of discretion.


D.WRIT OF CERTIORARI : It means “To be Certified”

  • Both preventive and curative.

  • Issued by SC and HC’s for quashing the order of any inferior court, tribunal or Quasi-Judicial body.

Propositions laid in issuing this writ by the High Court in Hari Vishnu Kamath Vs. Ahmad Ishaque

1.It is issued to correct the errors of Jurisdiction.

2.When court or tribunal acts illegal in its jurisdiction.

3.Order against principles of natural justice.

4.Court acts in exercise of its supervisory and not appellate Jurisdiction.

5.An error in the decision or determination itself may also be amenable to a writ of Certiorari

Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors., (1958) SCR 1240, the parameters for the exercise of jurisdiction. 1. Check whether inferior court has exceeded its jurisdiction. 2. Mere formal and technical errors doesn’t attract this.


E.WRIT OF QUO-WARRANTO :


MEANING : It means “what is your authority”.

SCOPE : Issued to restrain a person from holding a public office. The fundamental basis of the proceeding of quo warranto is that the public has an interest to see that a lawful claimant does not usurp a public office. It is a discretionary remedy which the court may grant or refuse.


CONDITIONS : The holder of the office has to show to the court under what authority he holds the office. It is issued when: i) the office is of public and of a substantive nature; ii) created by statute or by the Constitution itself, and iii) the respondent has asserted his claim to the office. It can be issued even though he has not assumed the charge of the office.


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