WRITS UNDER THE CONSTITUTION OF INDIA AND UNITED

STATES

Submitted by –
Garvit Goel
1st Semester, B. B.A. LLB
Chankaya National Law University, Patna.
 CONTENT
1. INTRODUCTION
2. APPLICATION UNDER ARTICLE 32 AND 226.
3. WRITS IN INDIAN CONSTITUTION
4. WRITS IN U.S. CONSTITUTION
5. CONCLUSION
WHAT IS WRIT?

Writ is a form of written command in the name of a court or other legal authority to act, or
abstain from acting, in a particular way. 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 writ but
many forms exist and have existed.1

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. 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. 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:

 Writ of habeas corpus

 Writ of quo warranto
 Writ of prohibition
 Writ of mandamus
 Writ of certiorari2

11
http://www.gktoday.in>writs
2
Http://legal-dictionary.thefreedictionary.com
APPLICATION UNDER ARTICLE 32 AND 226:

Article 32 and Article 226 both deal with enforcement of right of the citizen against the
Government or Governmental Authorities. However, the scope of Article 32 is limited to the
extent of enforcement of the fundamental rights stated in the Part III of the Constitution,
whereas the scope of Article 226 of the Constitution is much wider than Article 32 of the
Constitution. The High Court while exercising the Article 226 can give reliefs in case of
quasi-Judicial Tribunals and authorities or other acts by such lower authorities even though
the acts of such authorities do not infringe the fundamental rights.

The Supreme Court is competent to give relief under Article 32 against any authority within
the territory of India. The power of High Court under Article 226 is confined to its territorial
Jurisdiction, so that even where fundamental rights have been infringed, the High Court
cannot grant reliefs against an authority located outside its territorial jurisdiction except in
certain exceptional cases, namely where the causes of action arises, in whole or in part,
within territorial jurisdiction of that Court. However, a writ against Union of India can be
filed in any High Court in India.3

3
www.presrevearticles.com>differences
 WRITS

HABEAS CORPUS
Habeas Corpus literally means ‘to have the body of’. Via this writ, the court can cause any
person who has been detained or imprisoned to be physically brought before the court. The
court then examines the reason of his detention and if there is no legal justification of his
detention, he can be set free. Such a writ can be issued in following example cases:
 When the person is detained and not produced before the magistrate within 24 hours

 When the person is arrested without any violation of a law.

 When a person is arrested under a law which is unconstitutional

 When detention is done to harm the person or is malafide.

The writ of habeas corpus is issued against any order of detention by any authority including
the Speaker of Parliament or State Assemblies4. However, no writ of habeas corpus will lie in
regard to a person who is undergoing imprisonment on a sentence of a court in a criminal trial
even on the ground of erroneousness of conviction5.

CASES

 ADM JABALPUR VS SHIVAKANT SHUKLA

The 1975 ADM Jabalpur Case, also known as the habeas corpus case, is debatably most
controversial decision of Supreme Court, where a constitutional bench unabashedly declared
that under emergency provisions no one could seek the assistance of any court in India to try
and save his liberty, life or limb threatened to be taken away by the State.

It all started with the ‘the state of UP vs Raj Narain’ verdict of Allahabad high court, where
the court held Indira Gandhi guilty of election malpractices and invalidated her election and
further barred her for 6 years from contesting elections.

4 Ganpati v. Masi Nafisul Hasan A.I.R 1954 SC 636

5 (1984) 4SCC 251.
While the High court judgment was appealed to SC, Indira Gandhi, faced by
an unprecedented protest from an opposition united under J P Naryanan, invoked article
352 declaring National emergency on the grounds of threat from Internal disturbance.

Censorship muzzled the Press, the opposition was silenced and the common man terrorized.
The government made extensive use of preventive detention, arresting people not because
they have committed any offence, but on the apprehension that they may commit one.

Many cases were filed in the courts against it and 9 High Courts gave judgments that even
during emergency the courts could entertain a writ of habeas corpus filed by a person
challenging his/her detention

The Government decided to appeal against these decisions to the Supreme Court. It was thus
sthat the Constitutional bench of five Judges came to be constituted to hear case, dubbed as
A.D.M. Jabalpur vs. Shukla.

Supreme Court applied doctrine of procedure established by law in letter but not in spirit
and overturned the judgement by high courts, declaring that article 32 –the right to approach
to court to defend fundamental rights- remains suspended under emergency.

The judgement thus closed the doors of judiciary for citizen during emergency.

 SUNIL BATRA VS ADMINISTRATION OF DELHI

In this case , a prisoner in the jail of Delhi was brutally assaulted by an police officer so as to
extort some money out of that person. A co- convict in that jail had seen all of this brutality
and he sent a letter to the Supreme Court conveying this to the judges. Action was taken
immediately as Supreme Court filed a Suo Moto cognizance and helped that particular
victim. The court held that even after being a prisoner, he has the right to issue an writ and
seek justice.
 WRIT OF MANDAMUS

Mandamus means “we command”. This writ is a command issued by court to a public
official, public body, corporation, inferior court, tribunal or government asking them to
perform their duties which they have refused to perform. Due to this, Mandamus is called a
“wakening call” and it awakes the sleeping authorities to perform their duty. Mandamus thus
demands an activity and sets the authority in action. Mandamus cannot be issued against the
following:
 a private individual or private body.

 if the duty in question is discretionary and not mandatory.

 against president or governors of state

 against a working chief justice

 to enforce some kind of private contract.6

In The Praga Tools Corporation v. C.V. Imanual, A.l.R. 1969 S.C. 1306 and Sohanlal v.
Union of India, A.I.R. 1957 S.C. 529: (1957) S.C.R. 738 the Supreme Court stated that
mandamus might under certain circumstances lie against a private individual if it is
established that he has colluded with a public authority.

It will not issue against a private individual to enforce a private right such as a contract .Even
though mandamus does not lie to enforce a contract inter parties, it will lie where the
petitioner's contractual right with a third party is interfered with by the State.

6
Legal-dictionary.thefreedictionary.com
WRIT OF QUO WARRANTO

Quo warranto means “by what warrant”? This writ is issued to enquire into legality of the
claim of a person or public office. It restrains the person or authority to act in an office which
he / she is not entitled to; and thus stops usurpation of public office by anyone. This writ is
applicable to the public offices only and not to private offices.

A writ of quo warranto is not a petition, but a notice of demand, issued by a demandant, to a
respondant claiming some delegated power, and filed with a court of competent jurisdiction,
to hold a hearing within 3 to 20 days, depending on the distance of the respondant to the
court, to present proof of his authority to execute his claimed powers. If the court finds the
proof insufficient, or if the court fails to hold the hearing, the respondant must cease to
exercise the power. If the power is to hold an office, he must vacate the office7

In the famous case of quo warranto , a `quo warranto'' petition has been filed in the Madras
high court against Karnataka Chief Minister S M Krishna and his cabinet colleagues
seeking to explain as to under what authority they are holding the constitutional posts when
they have violated and disobeyed the Supreme Court directive to release Cauvery water to
Tamil Nadu.

According to the petitioner, P D Rajadevan, an advocate and a retired police official, the
decision of the chief minister and his cabinet colleagues to violate Supreme Court orders was
dangerous. Admitting the petition before the first bench, chief justice B Subhasan Reddy and
justice C Nagappan posted the case for further hearing on October 30.
"It is perhaps the first time that a chief minister has openly defied the Supreme Court order
which threatens the democratic system and federal structure of the country," the petitioner
said.
According to him, the basic tenet of the rule of law is that court orders are implicitly obeyed
no matter how unpalatable they might be.
Rajadevan urged the court to issue a writ of quo warranto directing Krishna and his cabinet
colleagues to show cause as to under what authority they were holding office.

7
www.constitution.org>writ>quo_warranto
WRIT OF PROHIBITION

The writ of prohibition means that the Supreme Court and High Courts may prohibit the
lower courts such as special tribunals, magistrates, commissions, and other judiciary officers
who are doing something which exceeds to their jurisdiction or acting contrary to the rule of
natural justice. For example if a judicial officer has personal interest in a case, it may hamper
the decision and the course of natural justice.8

Difference between Mandamus and Prohibition

 While Mandamus directs activity, Prohibition directs inactivity.

 While Mandamus can be issued against any public official, public body, corporation,
inferior court, tribunal or government; prohibition can be issued only against judicial
and quasi-judicial authorities and NOT against administrative authorities, legislative
bodies.

A writ of prohibition is a writ directing a subordinate to stop doing something the law
prohibits. In practice, the court directs the clerk to issue the writ, and directs the sheriff to
serve it on the subordinate, and the clerk prepares the writ and gives it to the sheriff, who
serves it. This writ is often issued by a superior court to the lower court asking it not to
proceed with a case which does not fall under its jurisdiction.

These writs are issued as "alternative" or "peremptory". An alternative writ directs the
recipient to immediately act, or desist, and "show cause" why the directive should not be
made permanent. A peremptory writ directs the recipient to immediately act, or desist, and
"return" the writ, with certification of its compliance, within a certain time.

When an agency of an official body is the target of the writ of prohibition, the writ is directed
to the official body over which the court has direct jurisdiction, ordering the official body to
cause the agency to desist.

8
http://www.gktoday.in>types-of=writs-india
In the case of Isha beevi vs tax recoverery officer , prohibition does not lie against an
authority discharging purely administrative or executive functions , it issues only against an
authority discharging judicial functions.

 WRIT OF CERTIORARI

Certiorari means to “certify”. It’s a writ that orders to move a suit from an inferior court to
superior court. It is issued by a higher court to a lower court or tribunal either to transfer a
case pending with that to itself or squash its order. This is generally done because superior
court believes that either the inferior court had no jurisdiction or committed an error of law.
Thus, certiorari is a kind of curative writ.

A type of writ, meant for rare use, by which an appellate court decides to review a case at its
discretion. The word certiorari comes from Law Latin and means "to be more fully
informed." A writ of certiorari orders a lower court to deliver its record in a case so that the
higher court may review it. The U.S. Supreme Court uses certiorari to select most of the
cases it hears. The writ of certiorari is a common law writ, which may be abrogated or
controlled entirely by statute or court rules.9

The Constitution Bench in T.C. Basappa Vs. T. Nagappa & Anr., (1955) 1 SCR 250, held
that certiorari may be and is generally granted when a court has acted (i) without jurisdiction,
or (ii) in excess of its jurisdiction. The want of jurisdiction may arise from the nature of the
subject-matter of the proceedings or from the absence of some preliminary proceedings or the
court itself may not have been legally constituted or suffering from certain disability by
reason of extraneous circumstances. Certiorari may also issue if the court or tribunal though
competent has acted in flagrant disregard of the rules or procedure or in violation of the
principles of natural justice where no particular procedure is prescribed. An error in the
decision or determination itself may also be amenable to a writ of certiorari subject to the
following factors being available if the error is manifest and apparent on the face of the
proceedings such as when it is based on clear ignorance or disregard of the provisions of law
but a mere wrong decision is not amenable to a writ of certiorari.10

9
www.techlawjournal.com>glossary>legal
10
http://www.lawyerservies.in>T C-Basappa-nagappa
UNITED STATES LAW

Early U.S. law inherited the traditional English writ system, in the sense of a rigid set of
forms of relief that the law courts were authorized to grant. In the united states federal courts
court system, the All Writs act (28 USC 1651) authorizes courts to “issue all writs necessary
or appropriate in aid of their respective jurisdictions and agreeable to the usage and principles
of law.”

However , the Federal rules of civil Procedure , which were adopted in 1938 to govern civil
procedure in the united states district court, provide that there is only one form of action in
civil cases, and explicitly abolish certain writs by name . Relief formerly available by a writ
is now normally available by a civil action or a motion in a pending civil action. Nonetheless
a few writs have escaped abolition and remain in the current use in the U.S. federal courts :

 The writ of habeas corpus, usually used to test the legality of a prisoner’s detention ,
has expressly been preserved. In the United States federal courts, the writ is most
often used to review the constitutionality of criminal convictions rendered by the state
courts.
 By statute, the Supreme court of the United States uses the writ of Certiorari to
review cases from the United States Courts of Appeals or from the state courts.
 In extraordinary circumstances, the united states courts of appeals can use the
common law writs of mandamus and prohibition under the All Writs Act to control
proceedings in the District Courts.
 Some courts have held that in rare circumstances in a federal criminal case , a united
states district court may use the common law writ of error coram nobis under the All
Writs Act to set aside a conviction when no other remedy is available.
 The united States District Courts normally follow state- court practice with respect to
certain provisional remedies and procedures for enforcement of civil judgements,
which may include writs of attachment and execution, among others.11

11
www.constitution.org
In an attempt to purge Latin from the language of the law, California law has for many years
used the term writ of mandate in place of writ of mandamus, and writ of review in place of
writ of certiorari. Early efforts to replace writ of habeas corpus with writ of have the body
never caught on.

Apart from these writs , there are some other/minor writs which are explained below in brief:

 The writ of attachment

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

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

 The writ of elegit

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.

 Writ of error

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.
 The writ of exigent

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.

Certain other writs are available in theory in the United States federal courts but are
almost never used in practice. In modern times, the All Writs Act is most commonly used
as authority for federal courts to issue injunctions to protect their jurisdiction or
effectuate their judgments.
 CONCLUSION

Talking of the Indian constitution, The writ remedy is one of the most powerful remedy given
to the people of India by the Constitution. To end the article I must quote the words of Dr.
Ambedkar “If I was asked to name the particular Article in this Constitution as the most
important without which this Constitution would be a nullity, I could not refer to any other
Article except this one. It is the very soul of the Constitution and the very heart of it ……..
This in my judgment is one of the greatest safeguards that can be provided for the safety and
security of the individual.” No discussion of the Fundamental Rights and Constitution can
end without the discussion of the Kesavananda Bharti v Union of India where the massive 13
judge’s bench held the power of Supreme Court under Article 32 to be the basic structure of
the Constitution and that it is beyond the amending powers of the Legislature. The Court also
held this Power to be one of the most important rights enshrined to the People of India and
the protector of all other Rights.

Speaking of United States constitution, we can say that it is the superset of the Indian
constitution , because it has all the writs which are in India and it also has additional writs for
the welfare of citizens. Also, Indian has derived it’s concept of writs from the United States .
It is considered that the concept of writs will evolve over a period of time as it is seen in the
case of United States. It is believed that writs in India will evolve and it will continue to help
the citizens to solve their grievances with help of judicial system.