Writs in Indian law

In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs and subpoenas are common types of writs but there are many others.

Writs are extra ordinary remedies in cases where there is either no remedy available under the ordinary law or the remedy available is inadequate.

Articles 32 and 226 of our Constitution empower anyone, whose rights are violated, to seek writs, Under Article 32; the Supreme Court can be moved for enforcement of fundamental right only.  However, under Article 226.  High Court can be moved for enforcement of any right including fundamental right.

History

Originally, a writ became necessary, in most cases, to have a case heard in one of the Royal Courts, such as the King's Bench or Common Pleas. Some franchise courts, especially in the Counties Palatine, had their own system of writs that often reflected or anticipated the common law writs. The writ would act as a command that the case be brought before the court issuing the writ, or it might command some other act on the part of the recipient 

The origin of writs in India goes back to the Regulating Act, 1773 under which Supreme Court was established at Calcutta. The charter also established other High courts and these High Courts had analogous power to issue writs as successor to the Supreme Court. The other courts which were established subsequently did not enjoy this power. The writ jurisdiction of these courts was limited to their original civil jurisdiction which they enjoyed under section 45 of the Specific Relief Act, 1877

Role of Writs

Now as far as the role of the writs is concerned, let us go by illustration over the cases on discretion. Conferment of discretionary powers has been accepted as necessary phenomena of modern administrative and constitutional machinery. Law making agency legislates the law on any subject to serve the public interest and while making law, it has become indispensable to provide for discretionary powers that are subject to judicial review. The rider is that the Donnie of the discretionary power has to exercise the discretion in good faith and for the purpose for which it is granted and subject to limitations prescribed under the Act. The Courts have retained their jurisdiction to test the Statute on the ground of reasonableness. Mostly, the courts review on two counts; firstly whether the statute is substantively valid piece of legislation and, secondly whether the statute provides procedural safeguards. If these two tests are not found, the law is declared ultra vires and void of Article 13 of the Constitution called Judicial Review

Beside this, Courts control the discretionary powers of the executive government being exercised after the statutes have come to exist. Once they come into existence, it becomes the duty of the Executive Government to regulate the powers within limitations prescribed to achieve the object of the Statute. The discretionary powers entrusted to the different executives of the Government play substantial role in administrative decision making and immediately the settled principles of administrative law trap the exercise of powers. If these discretionary powers are not properly exercised, or there is abuse and misuse of powers by the executives or they take into account irrelevant consideration for that they are not entitled to take or simply misdirect them in applying the proper provision of law, the discretionary exercise of powers is void. Judicial review is excluded when it is found that executives maintain the standard of reasonableness in their decisions. Errors are often crept in either because they would maintain pure administrative spirit as opposed to judicial flavour or that they influence their decisions by some irrelevant considerations or that sometimes, the authorities may themselves misdirect in law or that they may not apply their mind to the facts and circumstances of the cases. Besides, this aspect, they may act in derogation of fundamental principles of natural justice by not conforming to the standard or reasons and justice or that they do not just truly appreciate the existence or non existence of circumstances that may entitle them to exercise the discretion.

“The Executive have to reach their decisions by taking into account relevant considerations. They should not refuse to consider relevant matter nor should they take into account considerations that are wholly irrelevant or extraneous. They should not misdirect themselves on a point of law. Only such a decision will be lawful. The courts have power to see that the Executive acts lawfully. They cannot avoid scrutiny by courts by failing to give reasons. If they give reasons and they are not good reasons, the court can direct them to reconsider the matter in the light of relevant matters though the propriety adequacy or satisfactory character of these reasons may not be open to judicial scrutiny. Even if the Executive considers it inexpedient to exercise their powers they should state their reasons and there must be material to show that they have considered all the relevant facts.”

Prerogative writs

The "prerogative" writs are a subset of the class of writs, those that are to be heard ahead of any other cases on a court's docket except other such writs. The most common of the other such prerogative writs are habeas corpus, quo warranto, prohibito, mandamus, procedendo, and certiorari.

The due process for petitions for such writs is not simply civil or criminal, because they incorporate the presumption of no authority, so that the official who is the respondent has the burden to prove his authority to do or not do something, failing which the court has no discretion but to decide for the petitioner, who may be any person, not just an interested party. In this they differ from a motion in a civil process in which the burden of proof is on the movant, and in which there can be a question of standing.

Indian law

Under the Indian legal system, jurisdiction to issue 'prerogative writs' is given to the Supreme Court, and to the High Courts of Judicature of all Indian states. Parts of the law relating to writs are set forth in the Constitution of India. The Supreme Court, the highest in the country, may issue writs under Article 32 of the Constitution for enforcement of Fundamental Rights and under Articles 139 for enforcement of rights other than Fundamental Rights, while High Courts, the superior courts of the States, may issue writs under Articles 226. The Constitution broadly provides for five kinds of "prerogative" writs:

1.      Habeas Corpus,

2.      Certiorari,

3.      Mandamus,

4.      Quo Warranto and

5.      Prohibition.

Writ of prohibition

It is issued by a higher court to a lower court prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. Thus, the higher court transfers the case to itself.

Writ of Prohibition is issued by a superior court to subordinate court preventing latter from usurping the jurisdiction which is legally not vested in it.  The writ lies in both for access of jurisdiction or absence of jurisdiction. It is generally issued before the trial of the case or during the pendency of the proceeding but before the order is made.  It may be noted that this writ is available against judicial and quasi-judicial body.

Writ of habeas corpus

It is issued to a detaining authority, ordering the detainer to produce the detained person in the issuing court, along with the cause of his or her detention. If the detention is found to be illegal, the court issues an order to set the person free.

The words ‘habeas corpus’ literally means ‘to have body. It is a remedy available to a person who is confined without legal justification.  Through this writ, the court let it know the reasons for detention of the person and if there is no justification, order the authority concerned to se the person free.  The writ of hebeas corpus, thus, entails the authority to produce the person before the court.  The applicant of this writ may be the prisoner or any person on his behalf to safeguard his liberty.  It seeks immediate relief from unlawful detention whether in prison or private custody.

Writ of certiorari

It is issued to a lower court directing that the record of a case be sent up for review, together with all supporting files, evidence and documents, usually with the intention of overruling the judgement of the lower court. It is one of the mechanisms by which the fundamental rights of the citizens are upheld.

if any lower court or a tribunal gives its decision but based on wrong jurisdiction, the effected party can move this writ for a direction against such lower court or tribunal to ignore such decisions based on wrong jurisdiction.  The writ of certiorari issued to subordinate judicial or quasi- judicial body when they act:

a)      Without or in excess of jurisdiction;

b)     In violation of the prescribed procedure;

c)      In contravention of principles of natural justice;

d)      Resulting in an error of law apparent on the face of record.

The writs of prohibition and certiorari are of the same nature, the only difference being that the writ of prohibition is issued at an earlier stage, before the order is made and the writ of certiorari is available on a later stage i.e. after the order has been passed.

Writ of mandamus

It is issued to a subordinate court, an officer of government, or a corporation or other institution commanding the performance of certain acts or duties.

Mandamus literally means a command.  This writ of command is issued by the Supreme Court of High court when any government, court, corporation or any public authority has to do a public duty but fail to do so.  To invoke the performance of such duty this writ of mandamus is issued, It should be noted that it should not be discretionary duty of the authority which is challenged.  It should be a compulsory one; the applicant too should have a legal right to enforce such performance. It may further be noted that this writ can not be issued against President or the Governor.

Writ of quo warranto

It is issued against a person who claims or usurps a public office. Through this writ the court inquires 'by what authority' the person supports his or her claim.

The term ‘Quo Warranto’ means “What is your authority”. Whenever any public office is held by any one not qualified to hold it, it can be challenged by this writ by any person.  An order issued by the court to such an authority to explain under what valid grounds he is holding such a post.  It is found on investigation that he is not entitled to be office; the court may restrain him from acting in the office and declare the office to be Vacant.  The writ of quo-warranto to issue when:

a)      The office is public and of substantive nature;

b)      The office is created by the State or by the Constitution itself; and

c)      The respondent must have asserted his claim to the office.

 Other writs

A writ of attachment permits the arrest of a person or the seizure of private property.

A Writ of Bodily Attachment is a writ commanding law enforcement to physically bring in a person in contempt of court. Evidently, you cannot get out of this writ just by paying the fine, the court can hold you up to 48 hours to meet with the person issuing the writ directly.

A writ of capias directs an officer to take into custody the person named in the writ or order

A writ of coram nobis corrects a previous error "of the most fundamental character" to "achieve justice" where "no other remedy" is available, e.g., when a judgment was rendered without full knowledge of the facts.

A writ of elegit orders the seizure of a portion of a debtor's lands and all his goods (except work animals) towards satisfying a creditor, until the debt is paid off.

A writ of error is issued by an appellate court, and directs a lower court of record to submit its record of the case laid for appeal.

A writ of exigent (or exigend) commands a sheriff to summon a defendant indicted for a felony, who had failed to appear in court, to deliver himself up upon pain of outlawry or forfeiture of his goods.

A writ of fieri facias commands a sheriff to take and auction off enough property from a losing party to pay the debt (plus interest and costs) owed by a judgment debtor.[3]

A writ of mittimus orders either a court to send its record to another or a jailor to receive the accused in his or her custody at any point during the investigative or trial process.

A writ of ne exeat republica  restrains defendant who attempts to flee the country where he or she is being tried.

A writ of praemunire instructs a sheriff to order someone to appear in court to answer for any of a number of different crimes.

A writ of frrts contains a command to stay the proceedings at law.

A writ of venire facias summons jurors to appear in court.