Meaning and evolution of the concept of Writs:
The term „writ petition‟
in its general connotation means a Petition filed before the competent Courts,
having prerogative powers, when some special and inherited rights of the people
are infringed bu the government or its officials. in the common laws of English
this term is well settled as a „prerogative writ‟ which means a writ special
associated with then king. It resembled the extraordinary authority of the
Crown/ Court. In English prerogative writs were issued only at the suit of the
king but later on it was made available to the subject also.
Habeas Corpus
Habeas Corpus is a writ requiring the body of a
person to be brought before a judge or Court. In other words, it is prerogative
process for securing the liberty of the subject which affords an effective
means of immediate reLease form unlawful unjustifiable detention whether in
prison or in private custody. It is an ancient supreme right of the subject.
Its object is the vindication of the right of the personal liberty of the
subject.
The High Courts and The
Supreme Court have got a very wide power of protecting the liberty of subjects,
under Art.226 and Art.32 respectively of the Constitution. These powers are to
be exercised on certain fixed judicial principles and not in an arbitrary
manner. The jurisdiction can be exercised if the Court is satisfied that the
detention is illegal or improper, where the Court can also embark upon an
inquiry as to whether the enactment under which a person is detained is proper
or not. A proceeding of habeas corpus is essential of a civil character, and is
concerned with the personal liberty of a citizen. However, the power is
exercised on the criminal side of the High Court‟s appellate jurisdiction. The
High Courts and the Supreme Court exercise this power when satisfied that the
matter is of urgency, and no other legal remedy is available.
An application for habeas
corpus may be made by any person interested in the liberty of the detenue
without unreasonable delay; and it must be supported by an affidavit of the
petitioner. Ordinarily a rule nisi (to show cause) is issued by the Court in
the first instance. It is not open to Court to go behind the reasons given by
Government for the detention, and it must see the motive of the impugned law
and the bonafide of the Government. If the impugned detention has been
induced by malafide and some other strenuous reasons and not for
bonafide cause, it shall be quashed and the individual shall be set at liberty.
Mandamus
It is high prerogative
writ of a most extensive remedial nature. The Supreme Court and high court have
power respectively under Article 32 and Article 226 of the Indian constitution
to issue this writ in the form of a command directing any person holding public
office under the government or, statutory bodies or, corporation or, to an
inferior Court exercising judicial or 54 quasi-judicial function to do a particular act
pertaining to his office or duty and which the court issuing the writ cinsiders
to be the right of the petitioner and is in the interest of justice. It is not
restricted to persons charged with judicial or quasi-judicial; duty only.
It is issued only when
there is a specific legal right, but not specific legal remedy to enforce that
right. It lies for restoration, admission and election to office of a public
nature so long the office is vacant. It may , also, lie for the delivery ,
inspection and production of public books, papers and documents provided that
the petitioner has a direct tangible interest in such books, paper and
documents. It lies for the performance public duties which are not
discretionary and compel public officials to perform such public duties. Mandamus
will not be issued when any alternative remedy by way of appeal or any
other remedy under any other statute is available. Article 32 is limited to the
enforcement of fundamental right of part III of the Constitution only.
Certiorari
The writ of Certiorari may
be issued to any judge, Magistrate or person or body of person or authority
vested with judicial or quasi-judicial functions. An order of Certiorari is
an order directing the aforesaid authorities and requiring them to transmit the
record of the proceedings in any cause or matter to the High Court to be dealt
with there. It may be issued when the decision complained is of an authority
having the legal duty to act judicially or quasi-judicially, and the authority
has either no jurisdiction, or there is an excess of jurisdiction. Mainly it is
issued for quashing decisions only.
Prohibition
The writ of prohibition is
an order directed to an inferior Court or tribunal forbidding such Court or
tribunal from continuing with the proceeding of any cause or matter. It is an
appropriate writ „to a tribunal which threatens to assume or assumes a
jurisdiction not vested in it, so long as there is something in the proceeding
s left to prohibit.‟ The difference between a writ of Prohibition and Certiorari
is that the former is issued to restrain a tribunal from doing an act
before it is actually done, while the latter may be issue during the course of
the proceeding of an act and even after the act is done and the proceeding is
concluded. Both can be issued to the person, or body, or tribunal if charged
with judicial or quasi-judicial duties.
Quo Warranto
It is a writ questioning a
right of a person holding an office of a public nature, and direct him to show
an authority under which he is holding such office or exercising the right. In
older days it lay against the crown who claimed or usurped any office,
franchise or liberty for holding an enquiry by what authority he support his
claim. Now, it may be issued any person holding the office of a public nature
on the application of any person without alleging the violation of his any
specific right. Any member of the public
acting in good faith and whose conduct otherwise did not disentitle him to the
relief can apply to the High Court for this writ.
For instance, any
registered graduate of any university can apply for the instance of this writ
against any member of University Syndicate or Executive Council or Academic
Council or any such other statutory body of that University. Likewise, a
petition may lie against the Speaker, chairman or the parliament of state
legislation or any other statutory or local bodies. If the opposite party fails
to support his claim, he will be ousted from the office and may be ordered to
pay fine and cost of the petition.
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