Articles 12-35 of the Indian Constitution give a number of essential rights to every person. Fundamental rights must also be preserved; simply providing them is insufficient. Article 32 of the Indian Constitution stipulates a remedy for the preservation of fundamental rights and gives the Supreme Court the power to issue writs when a citizen’s fundamental rights are violated. In the 1997 case of L. Chandra Kumar v. Union of India, the Hon. Supreme Court determined that the Supreme Court’s power to issue writs to Indian citizens for the enforcement of their fundamental rights is a part of the basic structure concept and that, as a result, this power, can never be modified or dropped. The basic rights of citizens are guarded by the Supreme Court. It is considered as the “guarantor” and “defender” of the fundamental rights of the Indian people. A writ is a command or order given by a higher court (such as the Supreme Court or the High Court) compelling someone to do or forego performing a certain activity.
Several Kinds of Writs
The five different kind of writs listed below are issued under various conditions and have various imputations.
- In Latin, the word “habeas corpus” means” to have a body of”.
- The Latin word “mandamus “means “to command”
- The Latin phrase ”quo warranto” means ”by what power”
- The Latin word” certiorari” means “to certify”.
- English definition of prohibition is “to ban or to halt”
Writ of Habeaus Corpus
“You must have the body before us for submitting,” is how the term “Habeas corpus” is known in its extended version, “Habeas corpus coram nobis ad subjiciendum.” This writ aids in the release of a person who has been wrongfully incarcerated. Anyone who is held by the police, the court, or a private party is brought before the court on the authority of this writ, and if their custody is found to be unlawful, they are released. In Kanu Sanyal v. District Magistrate Darjeeling and Others (1974), the Supreme Court determined that this writ is a procedural writ as opposed to a substantive writ. The Court went on to say that consideration should be paid to determining whether the detention was legitimate given the circumstances of a particular instance.
Writ of Mandamus
This writ is issued by a court with superior standing to command inferior courts—or any other public official who has neglected to carry out their mandated duties—to do so accurately and effectively. This writ is only issued as a last option, that is, when all previous efforts to remedy the situation have failed. Any sort of power, whether legislative, judicial, quasi-judicial, or administrative, may be the target of the writ.
The State of Maharashtra refused the right to review a lower authority’s ruling in the case of E.A. Co-operative Society v. the State of Maharashtra (1966). The reply was asked to join the society, and the Registrar of the organization initially refused this request before accepting it. As a result, a request for the issuing of this writ was made in the relevant High Court; otherwise, the respondent would have had to use a special leave petition to request an appearance before the Supreme Court. The Honorable Supreme Court ruled that when a public employee refuses to exercise a legal authority that is legally owed to them, a writ of mandamus may be issued.
Writ of Quo Warranto
This writ is intended to require any person or public official to provide evidence of the legitimacy of their position in office. The party in question bears the burden of proof. This writ forbids anybody from illegally and without rightfully taking over a public position. The respondents in the 1952 case of Amarendra Chandra v. Narendra Kumar Basu allegedly
violated many procedural requirements by improperly admitting themselves to a competing private school’s Managing Committee. According to The Hon. High Court of Kolkata refused to issue a writ of quo warranto to prevent the usurpation of a private office.
Writ of Certiorari
This writ, which is issued by the higher courts, directs the lower court to refer a certain topic to the higher court for consideration (Supreme Court or High Courts). The higher courts have the authority to overturn a decision that has already been made by the lower courts. This writ seeks to right the wrongs committed by the lower levels of the judiciary. Any individual may file a writ petition with the Supreme Court or High Courts if they believe they have been aggrieved by a judgment reached by lower courts. In Noor Mohammad v. the State of U.P., (2020), the complainant’s sister committed suicide two years before to the hearing, after being married as a result of the persecution she endured from the appellant and his family members over the demand for dowry. The Supreme Court ruled that the primary purpose of a writ of certiorari is to correct a lower court’s decision.
Writ of Prohibition
This writ is issued to prevent a lower court or tribunal from exercising authority in an unauthorized manner. The lower court’s proceedings are immediately suspended upon the issuing of this writ, and the matter is then transferred to the body with jurisdiction over it. This document is also known as a “stay order.” In the 1954 case of Hari Vishnu v. Syed Ahmad Ishaque, the appellant was put up as a candidate to represent Madhya Pradesh in the Rajya Sabha. Although the appellant was elected, the election was annulled because it was discovered that the ballots did not have the distinctive markings. The Honorable Supreme Court defined the distinction between a writ of certiorari and a ban. The court held that one can only request a writ of certiorari after the decision in a specific case has been rendered, but one can request a writ of prohibition while the decision in a specific case is still pending. The court also decided that new elections must be held.
One of the most significant powers of the Supreme Court is the ability to issue writs. The issuing of writs is, in my opinion, the most significant kind of security offered to the nation’s residents. To provide prompt and impartial justice for the parties who have been wronged, the court must thus exercise this jurisdiction in a discrete manner. Nobody should abuse the higher courts’ authority, and only valid arguments should be taken into account when issuing writs. Last but not least, in the case of Kesavananda Bharati v. the State of Kerala (1973), the Supreme Court’s largest ever 13-judge panel decided that Article 32 is a component of the fundamental structure concept and is therefore outside the scope of the parliament’s ability to change it.
Author’s Name: Akarsha Bajpai (University of Lucknow)