7. Writs
1.
HABEAS CORPUS :
It literally
means “You may have the Body”. The Writ is issued in form of an Order calling
upon a person by whom another person is detained to bring that person before
the Court & let the Court know by what authority he has detained that
person. If it has been found that person has been illegally detained the court
will order that he must be released. Thus the main object of writ is to give
quick & immediate remedy to a person who is unlawfully detained by the
person whether in prison or Private custody.
Who can
apply – The general rule is that an application can be made by person
who is illegally detained. But in certain cases, an application for habeas
corpus can be made by any person on behalf of prisoner i.e. a friend or
relative.
When it will
Lie – The writ of habeas corpus will lie if power of detention vested
in an authority was exercised malafide. If the following conditions are
satisfied then detention is not illegal if detention is made in accordance with
procedure established by law. The detention becomes unlawful if a person who is
arrested is not produced before Magistrate within 24 hours & he will be
entitled to be released on Writ of High Court.
2.
MANDAMUS:
It means
“Order”. It is an order by superior Court Commanding a person or public
authority to do their public duty to issue a licence to an applicant who
fulfills conditions for issue of such license. But despite the fulfillment of
such conditions if officer or authority refuses or fails to issue licence, the
aggrieved person has right to seek remedy through this writ.
When it Lie- It would
be issued when there is -1) failure to perform mandatory duty when there is in
applicant a right to compel performance of some duty cast upon authority
[applicant has fulfilled his procedure
so he can compel ] . 2) Public authority to restrain it from acting under law
which has been declared unconstitutional. Thus it can be granted only in cases
where there is a Statutory duty imposed upon officer & there is failure on
part of officer to discharge statutory obligation. The chief function of writ
is to compel performance of public duties & to keep subordinate officers
within limits of their jurisdiction.
When it will
NOT Lie – When duty is optional (Discretionary), 2. Such writ does not lie
against private organisation, 3. Writ cannot be granted to enforce an
obligation arising out of contract.
3. PROHIBITION :
It is issued
primarily to prevent an inferior court from exceeding it’s jurisdiction or
acting contrary to the rule of natural justice. It is issued for the purpose of
compelling inferior courts to keep within limits of their jurisdiction. It can
be issued in both cases – 1) Where there is excess of Jurisdiction, 2) Where
there is Absence of Jurisdiction.
It is Issued
in following cases – 1) When inferior court acting without
jurisdiction, 2) If inferior court acting beyond the Jurisdiction, 3) If it is
acting in violation of rule of natural justice, 4) If proceeding of inferior
court is unconstitutional or ultra-vires,5) If it is acting in contravention of
fundamental rights.
4.
CERTIORARI :
It is issued
by superior court to an inferior court to remove suit from such inferior court.
It may be used to prevent an excess or abuse of jurisdiction & remove case
to higher court. The Object of this is to secure the authority. Such writ is
issued only to adjudicate (decision) the validity of Judicial Act.
Grounds – 1) Where
there is want or excess of jurisdiction, 2) Where there is violation of Rule of
Natural Justice, 3) Where there is error of law apparent on face of records.
Cannot Lie in case of
Private body.
5.
QUO – WARRANTO :
It
means “What is your Authority” , By this
writ a holder of an office is called upon to show to the court under what
authority he holds the office. The Object of this is to prevent a person to hold
an office which he is not entitled to hold. If holder of public office was
initially disqualified to hold that office, this writ would not be issued if at
subsequent stage that disqualification was removed.
Who can
Apply – It can be claimed by person if he satisfies the court that the
office in question is a public office, is held by person without legal
authority.
It cannot be
issued in respect of private office.
