WRITS

Adv. Radhika L
Ass. Prof. in Law
 WRITS
Written orders that are given by the either SC or HC
Commands constitutional remedies for the Indian citizen against
the infringement of their FR
 Nature and Scope
• Part III of India Constitution – Art. 32
• Right to Constitutional remedies.
• Art. 32 is not wide as to Art. 226
• Can not approach other than for the enforcement of FR
• Power to issue writs u/a 32 is mandatary for the SC
• Art. 32 itself a FR
• Art. 32 Citizen’s right to get remedy from SC
 WRITS
• Provide Guaranteed, effective, expedious, in expensive, summary remedy
for the protection of FR
• Art. 32 & Art. 226 of Indian Constitution.
• Art. 226 Citizen’s right to get remedy from HC
• SC & HC – Guardian of Fundamental Rights
• Can be issued against individuals and Government.
• Compel the authorities to fulfil or abstain from their duties.
• Five kinds of Writs
• The President can suspend the right to move to any court for the
enforcement of FR during the national emergency U/A. 359
• It’s a strong instrument that issued against the Government and
government officials.
• If the SC receives a letter addressed to it by an individual acting pro bono
publico , the letter may be treated as WRIT initiating legal proceedings.
 SC HC
• Art. 32 • Art. 226
• Part.3 • Part. 5
• Guarantor and Defender of the FR of Citizen of • Jurisdiction HC to enforce the FR of the Citizens.
India • 5 types of writs
• 5 types of writs • Directly to HC and the aggrieved may seek remedy
• Writ can be filed Directly to SC from SC
• Right to move SC can not be suspended except • Where relief through HC is available through HC,
otherwise provided by the constitution the aggrieved party should first move the HC
• Move either to HC / SC • Original jurisdiction
• Original jurisdiction but not exhaustive
 5 Types of WRITS

• Habeas Corpus
• Mandamus
• Prohibition
• Certiorari
• Quo-warranto
Habeas Corpus
 Habeas Corpus

• Produce the person/ produce the body

• Preserving liberty of a person who is being illegally
detained
• Produce before msg. before 24 hrs Art.22
• Mother, Father, Brother, Wife, Friends
• Public / private
 Mandamus
(we command)
Public officer not doing his duty
Pvt individual,
 contractual obligation
CJI & HC judges acting judicially
President of India
Governor any State
 Prohibition
(to prohibit)

 Pending cases
 Issued to any Court/ Tribunal to bar them from
doing something
 What they are about to do
 It can be to any Court/ Tribunel
 Higher Court to lower Court if they are exceeding
their Jurisdiction
 Only against Judicial and Quasi- judicial bodies.
 Certiorari

Preventive and curative

After the disposal of the case
To check the decision of the lower
courts
Administrative / judicial process
 Quo-warranto
(Locus Standi)

What is your authority

Legality of claim of a
person to a public officer
Violation of Art. 26
Ministers / pvt official
 Habeas Corpus
• ADM Jabalpur v. Shivkant Shukla
• A person’s right not to be unlawfully detained can be suspended in the interest
of the state. It’s the personal liberty of a citizen. hence, it can not be
suspended even during emergency. Art. 21 upheld by the SC.
• Overruled by Puttuswamy’s case
• A K Roy v. UOI
• Detained – Ordinance making power of the President and Governors – it is not
beyond the power of judicial reviews.
 Habeas Corpus

Can not be use Rahul Shah v. State of Bihar

• If detention is lawful • AIR 1983 SC 1086
• Contempt of Court • Al ready completed- 14 yrs of
• Detention is out side the imprisonment – writ – released
jurisdiction of the Court • Exemplary damages
• Detention is by a competent court.
• Sunil Bhatra v. Delhi Administration 1979 SC
• It was been held that the writ of habeas corpus can be issued not only for
releasing a person from illegal detention but also for protecting prisoners
from the inhuman and barbarous treatment. Even liberty within jail.
• Charanjit Lal Chowdhury v Union of India
• Supreme Court declares that an application for the writ of
habeas corpus can be filed by the person illegally jailed or
can also be filed by any other person on his behalf
provided that such any person must not be totally a
stranger to the person wrongfully detained.
• R. V Secy. of State for Home Affairs
• In this case, the applicant has entered the premises of the state illegally and
he was from India. Therefore, he got arrested there only and detained in
prison. His deportation was pending and he requested the authority to release
him for some time as he has to get married before departing for India. And
authorities did him to get married and there stated that his discharge is
allowed on the application made by him and such discharge is not
appealable. One of the effective ways to get an immediate release from
unlawful detention is via a writ of habeas corpus, irrespective of whether the
person is detained in prison or in private custody of an individual. Detention
does not make physical confinement mandatory. It just means that the person
is restricted from performing some task and is in control of some authority
i.e custody and control are sufficient for lodging an application for the writ
of habeas corpus.
• State of Bihar v Kameshwar prasad verma
• This writ is an order calling the person who was arrested or
jailed the alleged person for producing the aggrieved before
the court, for knowing the grounds of his detention and if not
found any legal ground for his detention then let the
aggrieved be free from arrest and let him enjoy his freedom.
• Kanu Sanyal v District Magistrate Darjeeling
• Justice Bhagwati held that the main aim of this writ is
preserving the liberty and freedom of the person subjected
to illegal detention and allow him to enjoy his liberty at the
fullest. In extension to this aim, his(person alleged to be
illegally apprehended) production before the court is
ancillary.
• Charanjit Lal Chowdhury v Union of India
• Supreme Court declares that an application for the writ of habeas corpus can
be filed by the person illegally jailed or can also be filed by any other person
on his behalf provided that such any person must not be totally a stranger to
the person wrongfully detained.
• R. v Secretary for State of Home Affairs
• In the given case application for a writ of habeas corpus was filed for the
discharge of Robert Soblen, as here before the court, the question was,
whether the detention of Mr Robert is lawful or not? As he is not in a
condition to be held in prison, medically. His surgeon at the hospital also
didn’t allow any legal documents to be served to him until july 3.
• Therefore, considering the facts of the case writ of habeas corpus was
granted.
1. In case it is visible that detaining authority has acted mala fidely or with the
intention to deceive the arrested person or there are any personal grudges
involved then a writ of habeas corpus will lie.
• D.K.Basu v State of West Bengal
• This is a landmark judgment in which Justice T.S.Thakur has laid down 11 which are
supposed to be followed by the person making an arrest of an accused person. These
guidelines include production of the person before any magistrate within 24 hours
from the time of his arrest and held that in case if these guidelines are not being
followed by the court then person detained must be entitled to be released on the
same grounds on a writ of habeas corpus.
1. The legislature which is making law in regards to a man, depriving him from his
personal liberty must also be empowered to make laws under Article 246 making
knots with the distribution of legislative power.
2. Writ of habeas corpus can only be issued if there is illegal restrain and the person is
entitled to be released on a petition of habeas corpus. Question asked by the court on
a petition of habeas corpus is whether the detention is lawful or not and if it is
answered positively then such a writ will not be issued and if answered negatively
then the writ must be issued.
A.K. Gopalan v State of Madras
• Janardhan Reddy v State of Hyderabad
• In the given case it was held by the supreme court that
whenever a person is convicted of a criminal charge and
sentence of his conviction is passes by the criminal trial
court then such detention can’t be challenged on the
ground of the erroneousness of the conviction.
• Lallubai Jogibhai Patel v Union Of India
• Under this case, the Supreme Court has given a ruling relating
to the successive application of habeas corpus and held that an
applicant has no right to file a successive application of habeas
corpus on the same grounds and on the same evidence.
Whereas, if there arise fresh or new grounds then an application
for the same can be filled and will not be barred under this rule.
1.In India appeal may lie against an order relating to grant or
dismissal of the application for issuance of the writ of habeas
corpus before the Supreme Court under
Article 132, 133, 134 or 136. On the other hand under English
Law once an order for the discharge of a person on the writ of
habeas corpus is passed then there lies no appeal against such
order.
 Mandamus
(we command)
• Gujarat State Financial Corporation v. Lotus Hotels
• Financial corporation taking part in an Agreement – lotus hotel - agreeing
that they will release fund – do with the construction work – after that
they not released fund- hence the Lotus hotel filed a writ of Mandamus at
Gujarat HC- court held that those promised public duty- fulfilment.
• SC Sharma v. UOI 2007
• The writ of mandamus can even issued against a pvt person who is
obliged to perform any public duty and he refused to perform it.
• Mani subrat Jain v State of Haryana
• In the given case Justice Ray A.N.given a definition of an aggrieved
person” a person is said to be an aggrieved only when his legal rights has
been denied by someone who has a legal duty to do something or denied
from doing something. The denied legal right must be a legally
enforceable right as well as a legally protected right before one suffering
a legal grievance can ask for a mandamus.
• CGA v K.S. Jagannathan
• Supreme Court held that high court has the power to issue writs of
mandamus in case the authority or government body has failed to exercise
their discretionary duty or has wrongly exercised the discretionary
conferred on them by the statue.
 Certiorari
(TO CERTIFY)

• Excess of Jurisdiction
Quash –
• Lack of Jurisdiction illegal

• Jurisdiction is unconstitutional
• Violation of principles of Natural justice
 Certiorari
(TO CERTIFY)
Gullapalli Nageswara Rao v. A K Kripak v. UOI
APSRTC
• AIR 1970 SC 150
• AIR 1959 308
• Lower court judgment is quashed
• Lower court judgment is quashed due due to the illegality
to the illegality
 Prohibition
(to prohibit)

• NEMO DEBET ESSE JUDEX IN PROPRIA SUA

CAUSA
• No man can be judge in his own cases
• Prevention id better than cure
• Tamil Nadu Tubacco co. v. UOI
• Madras HC prohibited the lower (District Court) to pronounce the
judgement U/A 226 of the Consti. Of India
 Quo-warranto
(Locus Standi)
• PIL
• Balco Employees Union v. UOI
• Parameters for invocation of remedy by way of PIL
• Darayo v. State of UP, 1961
• SC held that, where the matter has been ‘heard’ and ‘decided’ by HC shall
be barred by the ‘ Rule of Res Judicata’ to entertain any such writ petition
U/A 32 of the constitution of India
• Writs is the right of a group of people even if it is filed by single person
• It is the responsibility of the SC to protect the fundamental right
• Gulam Sarvar v. UOI, 1967
• Where petitioner is refused to grant the writ of Habeas corpus by high
Court U/A 226, petitioner can still move to the SC
• Rules of res judicata did not apply to the writs of Habeas Corpus
 History of WRITS
• English judicial system
• Orders passed by King’s Bench in England
• Writs were issued on a petition given to the King
• King’s order – in the interest of Crown
• These power is only vested with the crown
• Purchase of Writs
• Regulation Act,1773
• Calcutta SC and HCs
• Jurisdiction limited to the original jurisdiction of civil courts enjoyed
under Specific relief Act, 1877
• Magna carta signed by the
• Bill of rights
• A K Gopalan’s case – preventive detention – HBC
• Ubi jus ibi remedium
• The evolution of writs was done by the King Anglo- Saxon in the judicial
history of UK in the 1974 at the time of Queen Elizabeth, the court of
Queens bench was established which also issued writs along with the ones
by the Court of Chancery.
• The exercise of different kinds of writ gained its importance in the tudor
period
• The Writ of Certiorari can be issued by on the criminal as well as civil
side in common law, In 13th centaury
• In the 17th, 18th centuary the writs of habeas corpus, mandamus,
certiorari and quo-warranto were given the names of prerogative writs as
they were connected closely with the rights of the people.
• The origin of writs can be drawn from the English Judicial System and
were created with the the common law courts.
• The law of writs has its origin from the orders passed by the King’s
Bench in England.
• Writs were issued on a petition presented to the king in council and were
considered as a royal order.
• Writs were a written order issued in the name of the king. However, with
different segments writs took various forms and names.
• The writs were issued by the crown and initially only for the interest of
the crown later on it became available for ordinary citizens also.
• A prescribed fee was charged for it and the filling of these writs was
known as Purchase of a Writ.
ORIGINATION OF WRITS IN INDIA
• The origin of writs in India goes back to the Regulating Act, 1773 under
which the Supreme Court was established at Calcutta.
• The charter also established other High Courts and also gave them the
power to issue writs as a successor to Supreme Court.
• 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
• The Judicature Act 1873 abolished the Court of Chancery and other
courts and consolidated superior courts which exercised jurisdiction on
the issuance of writs.
• Presidency Courts at Calcutta, Madras and Bombay were established by
the Indian High Court Act 1862. The local Supreme Court, as well as
Saddar Diwani Adalat and Saddar Nizamat Adalat, were merged together.
• The High Courts continued to exercise the power to issue prerogative
writs within the limits of their respective original jurisdiction.
• They did not have the power to issue such writs upon Mofussil Courts or
Tribunals or to persons outside the limits of the Presidency towns.
• No other High Court except these High Courts were vested with the
power to issue prerogative writs (Section 45 of the Specific Relief Act
1877) but this was not made applicable to Lahore High Court, Sindh
Chief Court and Courts of Judicial Commissioner at Peshawar and
Quetta (AIR 1927 Lah 513).
• he Government of India Act was passed in 1935 which established a
Federal Court which, to the exclusion of any other court, had original
jurisdiction in disputes between the federation and provinces. It also had
appellate jurisdiction over the judgment of High Courts.
THANK YOU