Types of Writs and Article 32 of the Constitution: Explained

In this article, the author has explained the meaning of Article 32 of the Constitution under the context of various writs, with the help of various Judicial precedents

Introduction

Article 32 of the Indian Constitution provides for the right to constitutional remedies. This gives the individuals in India to file a petition in the Supreme Court in case of violation of their fundamental rights. The article specifically provides for five Writs in India that can be issued by the apex court. It includes habeas corpus, mandamus, prohibition, quo warranto, and certiorari.

Types of Writs

Habeas Corpus

Habeas Corpus in a literal sense means “You shall have the body”. When an individual is arrested, he is supposed to be presented before the court in 24 hours. In the case of the contrary, habeas corpus is applied. This writ can be claimed by the arrested person itself or someone else on their behalf to check the lawfulness of the arrest.

ADM Jabalpur v. Shiv Kant Shukla, also known as the Habeas corpus case, was filed in the Supreme Court of India. The court held that the writ of Habeas corpus cannot be claimed in case of emergency under Article 359. However, this was overruled in the case of K.S. Puttaswamy v. Union of India.

In the case of Sunil Batra v. Delhi Administration, the court held that the writ of habeas corpus can not only be issued when an individual is illegally detained but also to protect the prisoners from inhumane treatment.

Mandamus

The meaning of “mandamus” is “we command”. This writ is issued by a court to an inferior court or government official to perform their official duties properly. According to the Black’s Law Dictionary, 9^th edition, mandamus is defined as “A writ issued by a court to compel performance of a particular act by a lower court or a governmental officer or body, to correct a prior action or failure to act.” For example, even though a police officer has the right to investigate all the cases under his jurisdiction when it comes to the notice of the court that it has been done in a mala fide manner, then the court can issue a writ of mandamus. However, this cannot be issued against President and Governors.

In Raman & Raman v. State of Madras, the Supreme Court held that mandamus can be issued only when the petitioner has a legal right that gives rise to the performance of a legal duty.

In the case of State of Madhya Pradesh v. Bhailal Bhai, the court held that writ of mandamus cannot be issued when there was an undue delay in filing of the petition.

Further, in S.P. Gupta v. Union of India and C.G. Govindan v. State of Gujarat, the court that writ of mandamus cannot be issued against the President and the Governor, respectively.

Prohibition

Prohibition is a writ issued by the superior court to the inferior courts or quasi-judicial body when they exceed the power vested in them or exceed their jurisdiction. This can simply be called a ‘Stay Order’. This writ prohibits the inferior court from continuing the judicial proceedings. The reason for the existence of this writ is to make sure that the inferior courts exercise their jurisdiction properly. This can be issued in case of violation of principles of natural justice or fundamental rights as well.

In the case of East India Commercial Co. Ltd v. Collector of Customs, the Supreme Court issued an order of prohibition to restrain the Customs Authority from continuing the investigation as they had no jurisdiction.

In S. Govinda Menon v. Union of India, the court held that the issuance of the writ of prohibition is not only limited to the excess of jurisdiction or absence of jurisdiction but also in case of departure from the rules of natural justice.

Quo Warranto

Quo Warranto means “by what warrant or authority”. When a person holds a public office and if it is found that he is not entitled to hold the same, then the writ of quo warranto shall be issued. This office should be public and substantive.

In Jamalpur Arya Samaj v. Dr. D. Ram, the court held that the writ of quo warranto cannot be issued if the office is private and not public.

In the case of P.L. Lakhanpal v. Ajit Nath Ray, the court decided not to issue the writ of quo warranto against the Chief Justice of India as he can be re-appointed based on the rule of seniority.

In Purushottam Lal v. State of Rajasthan & Dr. Y.S. Rajasekara Reddy v. Nara Chandrababu Naidu & Ors., the court held that the Chief Minister cannot be ousted in quo warranto from his office as he was duly elected by the people.

Certiorari

Certiorari means “to certify or to be made certain”. This writ is issued by the superior court to the inferior court or public authorities after checking the legality of the proceedings. If the proceedings are found to be bad in law, then the order passed by the courts or the quasi-judicial body or public authorities shall be quashed.

In the case of Nagendra Nath Bora v. Commissioner of Hills (1958), the court held that “mere formal or technical errors” cannot be an adequate ground to issue the writ of certiorari.

 In Surya Dev Rai v. Ram Chander Rai & Ors, the court explained the writ of certiorari and its ambit. The court emphasized that while exercising certiorari jurisdiction, it can only be done against an inferior court.

Conclusion

Article 32 gives the power to the individuals to approach the Supreme Court in case of violation of their fundamental rights. For the very same reason, it is called the heart and soul of the Constitution.

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