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Writs - Condition, Case Laws and Legal Perspective.

Updated: Feb 26, 2020

Writ of Habeas Corpus

Writ of habeas corpus, is a Latin phrase, which can be literally translated as "We command that you have the body". It means, you have the body and produce it before the Court. The object of this writ is to release a person who is illegally detained. It secures the release of a person from illegal detention either in prison or in private custody. According to law, no person shall be detained unlawfully.

The Court can direct to have the body of the person detained to be brought before it in order to ascertain whether the detention is legal or illegal. If a person who is arrested is not produced before the Magistrate within 24 hours from the time of arrest, he will be entitled to be released on the writ of Habeas Corpus. It can be issued against any private person or executive authority. The disobedience of this writ amounts to contempt of Court, and is punishable.

Conditions: For this writ, following conditions must be fulfilled.

  • There must be illegal detention of a person.

  • The detention must be illegal at the time of filing the petition.

  • The detention must be unwarranted by law.

Who can apply for writ of Habeas Corpus?

  • A person who has been detained illegally,

  • A prisoner himself whose detention is illegal, or

  • Any person on behalf of the detainee/prisoner.

When writ of Habeas Corpus is not issued?

  • If the detention has been made in accordance with law and procedure.

  • Where the person against whom the writ is issued or the person who is detained is not within the jurisdiction of the Court.

  • If a person who has been imprisoned by a Court of law on a criminal charge.

  • If the proceedings interfere with a proceeding for contempt by a Court of record or by Parliament.

Some cases: Given below are some cases that enhance your understanding of this writ.

In A. D. M. Jabalpur v S. Shukla (1976, p.1207) case, popularly known as 'Habeas Corpus Case ', the Court held that if the enforcement of Article 21 is suspended by the Presidential Order under Article 359, the detenue shall not have right to file a writ petition challenging the legality of detention. However,after44th amendment of the Constitution the rule passed in Habeas Corpus Case is no longer a good law. According to the present position even the Presidential Order cannot suspend the right to life and liberty under Article 21.

In Sunil Batra v Delhi Administration (1978, p. 1575), the solitary confinement imposed on Sunil Batra and Charles Sobhraj, who were under sentence of death was challenged as violation of Article 14,19,20and 21 of the Constitution. The Court treated their letter as writ petition. The Court held that writ of Habeas Corpus can not only be granted for releasing a person illegally detained but also it will be used for protecting him from ill- treatment inside jails.

In Kanu Sanyal v District Magistrate, Darjeeling (1974, p.510), Kanu Sanyal, a top-ranking Naxalite leader was arrested and detained without trial in Visakhapatnam jail. He challenged the validity of his detention and filed a writ of Habeas Corpus. The Court issued necessary directions and held that the production of the body of the person detained before the Court was not necessary for hearing and disposing of the writ petition under Article 32.

In Bhim Singh v State of J & K (1986, p.494), Bhim Singh, an MLA of State of J & K was wrongfully arrested and detained in the police station and was prevented from attending the State Legislative Assembly. The Court awarded a sum of Rs.50,000 to the petitioner as compensation for the violation of his Constitutional right of personal liberty under Art. 21.

Writ of Mandamus

A writ of mandamus, which in Latin means "we command, or sometimes "we mandate", is the name of this prerogative writ in the common law. It is issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly.

Mandamus means 'the order'. Mandamus is an order by Supreme Court or High Courts to any public authority to do or not to do something in the nature of public duty. It is issued against the persons or authorities who fail to perform their mandatory duties. For the purpose of issuing writ of mandamus, the officer must have a pubic duty and must fail to perform such duty. The applicant of this writ must also have right to compel the performance of some duty cast upon the authority.

Conditions: For this writ, following conditions must exist.

  • There must be public duty upon the respondent.

  • The petitioner must have legal right to compel the performance of public duty (State of M. P. v G C. Mandawara, 1954,p.493).

  • Such duty must be mandatory duty cast by law.

  • The petitioner must have demanded for the performance of such duty.

  • The public authority must have failed to perform or refuse to perform the pubic duty (Saraswati hdustiial Syndicate Ltd. v Union of India, 1975)

Against whom Mandamus is issued?

  • Against public authorities and institutions.

  • Against officers exercising public functions.

  • Against Government and public corporations

In Gujarat State Financial Corporation v M/s Lotus Hotel Pvt. Ltd. (1983, p.848) case, the Corporation established under the State Financial Corporation Act, 1951 had entered into an agreement with Lotus Hotels to provide finance on long- term credit and failed to release the funds. The Court issued the writ of Mandamus and directed the Corporation to release the funds as per agreement.

When writ of Mandamus is not issued?

  • When the duty is merely discretionary in nature (State of M. P v Mandawara, 1954,p.493).

  • Writ of Mandamus cannot be issued against private individuals or private organisations because they don't have public duty (Barada Kanta v State of West Bengal, 1963, p.161).

  • Writ of Mandamus cannot be granted to enforce a duty arising out of contract.(Bihar EGF Co-operative Society v Sipahi Singh,1977,p.2149).

In Manjula v Direct06 Public Instructions (1952, p.344), the petitioner published a book namely 'Ama Ithihasa Gapa' and filed a writ of Mandamus to compel the director, Public Instructions to include her book in the list of books approved for the schools. The writ was not granted on the ground that the choice of the textbooks was a matter entirely left to the discretion of the DPI and DPI was not under duty to include the petitioner's book in the approved list.

Writ of Certiorari

It is an Order by the Supreme Court or the High Courts to an inferior Court to remove a suit from such inferior Court and adjudicate upon the validity of the proceedings or to quash the Orders of the inferior Court. Writ of Certiorari can be issued not only against any inferior Courts but also against a body exercising judicial or quasi-judicial functions. This writ is issued under the supervisory or original jurisdiction and not under the appellate jurisdiction.

Conditions : These Include the followings

  • There must be want or excess of jurisdiction.

  • Principles of natural Justice must be violated

  • There must be an error or law on the face of judicial record

When can a writ of Certiorari be invoked or granted?

  • Before the trial to prevent an excess or abuse of jurisdiction and remove the case for trial to higher Court.

  • After trial to quash an order which has been made without jurisdiction or in violation of the principles of natural justice.

In other words, whenever any body of persons having legal authority to determine questions affecting the rights of subject and having the duty to act judicially, acts in excess of their legal authority, writ of certiorari can be granted.

Who can apply for writ of Certiorari?

  • Any person whose fundamental right is violated can apply for writ of Certiorari.

Against whom writ of Certiorari is issued?

  • Inferior Courts, and

  • A body exercising judicial or quasi-judicial functions.

Against whom writ of Certiorari cannot be issued?

  • Against a private individual or body of private persons (A.Ranga Reddy v General Managel; Co-op Electric Supply Society Ltd, 1977, p.232).

When a writ of Certiorari cannot be granted?

  • To remove ministerial acts.

  • To remove or cancel executive acts.

  • To declare an Act as unconstitutional or void.

In the case of Rafiq Khan v State of UP (1954, p.3) the Magistrate maintained the conviction of the accused as passed by a Panchayat Adalat which is no1 authorised under Section 85 of the U. P. Panchayat Raj Act, 1947. Hence, the High Court quashed the conviction by a writ of certiorari.

In G Nageshwara Rao vA.l? (1959,p.308), the Secretary,APSRTC invited objections for nationalisation of motor transport in the State. The petitioner who was running transport business filed his objections, but the Secretary did not pay attention to them. Moreover, the secretary himself was the adjudicating authority and thus violated the principles of natural justice. Hence, the Supreme Court issued writ of Certiorari against the Secretary.

Writ of Prohibition

Prohibition means 'to prevent'. Each Court is expected to act within the limits of their jurisdiction. A writ of prohibition is issued to prevent an inferior Court or Tribunal from exceeding its jurisdiction, which is not legally vested, or acting without jurisdiction or acting against the principles of natural justice.

The writ of Prohibition can be issued not only against the Courts but also against the authorities exercising judicial or quasi-judicial functions.

In East India Commercial Co. v Collector of Customs (1962, p.1893) the Court compelled the inferior court to keep itself within the limits of jurisdiction.

Who can apply for the Writ of Prohibition?

  • The person whose right is violated can apply for the writ of prohibition.

When can a Writ of Prohibition be granted?

  • When the inferior Court or quasi-judicial authority exceeds its jurisdiction.

  • When the inferior Court acts without lawful jurisdiction.

  • When the inferior Court or quasi-judicial authority acts against the rule of natural justice.

  • When there is an apparent error on the face of the judicial record.

When is Writ of Prohibition not issued?

  • When the Court acts within its lawful jurisdiction.

  • When the Court observes principles of natural justice.

Writ of Quo Warranto

Quo warranto means 'what is your authority?' It is an Order questioning the authority of a person holding a public office. It is issued against the holder of a public office calling upon him to show with what authority he holds such office. The object of this writ is to control the executive action in making appointments to the public offices and also to protect the pubic from usurpers of public offices.

Conditions: These include the following.

  • The office must be a public office.

  • The office must be substantive in character with independent title.

  • The respondent must not be legally qualified to hold the public office.

  • The respondent must have held the office against the law.

Who can file Writ of Quo Warranto?

Any member of the public can file writ of Quo Warranto, whether any right of such person has been infringed or not (V enkataraya v Sivarama,

1965, p.491).

When Writ of Quo Warranto is not issued?

  • When the office is a private office.

  • When the holder of the office is qualified to hold that office.

  • When the holder subsequently gets qualified for the office.

  • When issue of writ becomes futile. It means if the writ does not serve any purpose.

Some Cases are given below, which will enhance your understanding of this writ.

In Jamalpur Arya Samaj Sabha v Dr. D. Ram (1954, p.297), the member of the Working Committee of the Bihar Arya Samaj Sabha held the office for more than the prescribed tenure. The High Court refused to issue writ of Quo Warranto on the ground that it was a private association.

In K.Bhima Raju v State of Andhra Pradesh (1981,p.24), the Government pleader was appointed against the rules. The petitioner filed a writ of Quo Warranto. The High Court quashed the appointment of Government Pleader on the ground that the appointment was not made in accordance with rules.

In Ishwar Chand Jain v High Court of P & H (1988, p.370), the appellant was posted asAdditiona1District and Sessions Judge at Hissar. On happening of certain incidents the Bar Association passed a resolution against the appellant, which resulted in his transfer from Hissar to Narnaul.

Thereafter, High Court conducted an inquiry and found the appellant's conduct was bad. Hence, the High Court resolved and recommended to the State Government to terminate the appellant's service. The Supreme Court held the order HC was liable to be set aside because the complaints against the appelant were made on triffling Matters without Justification.

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