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.
In its earliest form a writ was simply a written order made by the English monarch to a specified person to undertake a specified action; for example, in the feudal era a military summons by the king to one of his tenants-in-chief to appear dressed for battle with retinue at a certain place and time. An early usage survives in the United Kingdom and Canada in a writ of election, which is a written order issued on behalf of the monarch (in Canada, the Governor General) to local officials (High Sheriffs of every county in the historical UK) to hold a general election. Writs were used by the medieval English kings to summon persons to Parliament (then consisting of the House of Lords alone) whose advice was considered valuable or who were particularly influential, who were thereby deemed to have been created “barons by writ”.
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: habeas corpus, certiorari, mandamus, quo warranto and prohibition.
Types of Writs
There are five types of Writs – Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo warranto.
1. Habeas Corpus
“Habeas Corpus” is a Latin term which literally means “you may have the body.” The writ is issued to produce a person who has been detained , whether in prison or in private custody, before a court and to release him if such detention is found illegal.
Mandamus is a Latin word, which means “We Command”. Mandamus is an order from the Supreme Court or High Court to a lower court or tribunal or public authority to perform a public or statutory duty. This writ of command is issued by the Supreme Court or High court when any government, court, corporation or any public authority has to do a public duty but fails to do so.
Literally, Certiorari means to be certified. The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court, tribunal or quasi judicial authority.
There are several conditions necessary for the issue of writ of certiorari .
- There should be court, tribunal or an officer having legal authority to determine the question with a duty to act judicially.
- Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or officer.
- The order could also be against the principles of natural justice or the order could contain an error of judgment in appreciating the facts of the case.
The Writ of prohibition means to forbid or to stop and it is popularly known as ‘Stay Order’. This writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, or quasi judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to try. After the issue of this writ, proceedings in the lower court etc. come to a stop.
Difference between Prohibition and Certiorari:
- While the writ of prohibition is available during the pendency of proceedings, the writ of certiorari can be resorted to only after the order or decision has been announced.
- Both the writs are issued against legal bodies.
5. The Writ of Quo-Warranto
The word Quo-Warranto literally means “by what warrants?” or “what is your authority”? It is a writ issued with a view to restrain a person from holding a public office to which he is not entitled. The writ requires the concerned person to explain to the Court by what authority he holds the office. If a person has usurped a public office, the Court may direct him not to carry out any activities in the office or may announce the office to be vacant. Thus High Court may issue a writ of quo-warranto if a person holds an office beyond his retirement age.
Conditions for issue of Quo-Warranto
- The office must be public and it must be created by a statute or by the constitution itself.
- The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.
- There must have been a contravention of the constitution or a statute or statutory instrument, in appointing such person to that office.