Writs

1. Habeas Corpus

"Habeas Corpus" is a Latin term which literally means "you may have the body". The writ of habeas corpus is used to secure release of a person who has been detained unlawfully or without legal justification.1 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 and to let the Court know by what authority he has detained that person. If the cause shown discloses that detained person has been detained illegally the Court will order that he be released. Thus the main object of the writ is to give quick and immediate remedy to a person who is unlawfully detained by the person whether in prison or private custody. Detention should not contravene Art. 22, as for example, a person who is not produced before a magistrate within 24 hours of his detention is entitled to be released. The power of detention vested in an authority, if exceeded, abused or exercised mala fide makes the detention unlawful. While dealing with the petition of Habeas Corpus, the court may examine the legality of the detention without requiring the person detained to be produced before it. In the case of In Kanu Sanyal v. District Magistrate, Darjeeling2, the Supreme Court, however, held that while dealing with the application of writ of habeas corpus, production of the body of the person alleged to be unlawfully detained was not essential. In that case the topranking Naxalite leader Kanu Sanyal was arrested in 1971 and was detained without trial in the Visakhapatnam Jail. He moved the Supreme Court for a writ under Art.32 of the Constitution challenging the legality of his detention and praying for the Court's order for his production before the Court. The Court issued the rule nisi but not the production of the detenu. Counsel appearing for the detenu, contended the production of the body of person alleged to be illegally detained was an essential feature of writ of habeas corpus under Art.32 of the Constitution and that the Court can dispose of the
1 2

M.P.Jain AIR 1973 SC 2684

petition only after the petition was produced in person before it. Bhagwati, J., held that in writ of habeas corpus under Art. 32 the production of the body of the person detained before the Court was not necessary for hearing and disposing of the writ-petition by the Court. The production of body of a person illegally detained is not an essential feature of the writ of habeas corpus. This practice is also followed in America for dealing with an application of writ of habeas corpus. Because the courts regard personal liberty as one of the most cherished values of mankind, the Supreme Court has lately sought to reduce procedural technicalities to the minimum in the matter of issue of habeas corpus. The Supreme Court has pointed out in Icchu Devi v. Union of India3, that in case of an application for a writ of habeas corpus, the court does not, as a matter of practice, follow strict rules of pleading. Even a postcard by a detenu from jail is sufficient to activise the court into examining the legality of detention. Also, because of Art. 21, the court places the burden of showing that detention is in accordance with the procedure established by law on the detaining authority. The court may grant an interim bail while dealing with a habeas corpus petition. There have been cases where persons picked by the police or the army have disappeared without a trace. In such cases, on petitions for Habeas Corpus being moved by their relatives, courts have awarded compensation.4

Who can apply for the writ The general rule is that an application can be made by a person who is illegally detained. But in certain cases, an application of habeas corpus can be made by any person on behalf of the prisoner, i.e. a friend or a relation. In an application for a writ of habeas corpus the Supreme Court will not follow strict rules of pleading nor place undue emphasis as to question as to on whom the burden of proof lies. In view of the peculiar socio-economic conditions prevailing in this country the court has adopted a liberal approach .Where large masses of people are poor, illiterate-and

3 4

AIR 1980 SC 1983 Nilabati v. State of Orissa, AIR 1993 SC 1960

ignorant and the access to the courts is not easy on account of lack of financial resources it would be most unreasonable to insist that the petitioner should set out clearly and specifically the grounds on which he challenges the order of detention. The burden of proof to justify detention has always been placed on the detaining authority. Technicalities and legal necessities are no impediments to the Court entertaining even an informal communication as a proceeding for habeas corpus if the basic facts are found. The writ of habeas corpus cannot only be used for releasing a person illegally detained but it will be also used for protecting him from treatment inside jails.

When it will lie The writ of habeas corpus will lie if the power of detention vested in an authority was exercised mala fide and is made in collateral or ulterior purposes. But if the detention is justified the High Court will not grant the writ of habeas corpus. If the following conditions are satisfied the detention is illegal: (a) If the detention is made in accordance with the procedure established by law. The law must be valid law and the procedure must be strictly followed. (b) The detention is lawful if the condition lay down in Art. 22 are complied with. The detention becomes unlawful if a person who is arrested is not produced before the Magistrate within 24 hours of his arrest and he will be entitled to be released on the writ of habeas corpus. The legislature which deprives a person of his personal liberty by law must be competent to make that law. If the law is unlawful the detention will be unlawful. An appeal lies against an order of the High Court granting or rejecting the application for issue of the habeas corpus under Arts.132, 133, 134 or 136.

2. Mandamus

Mandamus is a judicial remedy which is in the form of an order from a superior court to any government, court, corporation or public authority to do or to forbear from doing

some specific act which that body is obliged under law to do or refrain from doing, as the case may be, and which is in the nature of a public duty and in certain cases of a statutory duty. It cannot be issued to compel an authority to do something against the statutory provision. The writ has been so defined in Hals bury5: "The writ of mandamus is a... writ of most extensive remedial nature and is, in form, a command issuing from the High Court of Justice directed to any person, corporation, or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in the nature of a public duty. Its purpose is to remedy defects of justice; and accordingly it will issue, to the end that justice may be done, in all cases where there is a specific legal right and no specific legal remedy for enforcing that right; and it may issue in cases where, although there is an alternative legal remedy, yet that mode of redress is less convenient beneficial and effectual." For instance, a licensing officer is under a duty to issue a licence to an applicant who fulfils all the conditions laid down for the issue of such licence. But despite the fulfillment of such conditions if the officer or the authority concerned refuses or fails to issue the licence the aggrieved person has a right to seek the remedy through a writ of mandamus. No one can ask for a mandamus without a legal, right. There must be a judicially enforceable as well as legally protected right before one suffering a legal grievance can ask for a mandamus. A person can be said to be aggrieved only when he is denied a legal right by someone who has a legal duty to do something and abstains from doing it.6 The applicant praying for the writ of mandamus must show that he has a legal right to compel the opponent to do or refrain from doing something or, in the words of the Supreme Court, "there must be in the applicant a right to compel the performance of some duty cast on the opponent." The duty sought to be enforced must have three qualities. Firstly, it must be a duty of a public nature. A duty will be of a public nature if it is created by the provisions of the Constitution or of a statue or some rule of common. A

5 6

Halsburys Laws of England, 4 Edition, vol-I, para 89 Mani Subrat v. State of Haryana (1977) 1 SCC 486

th

public duty need not, however, be always statutory. A duty corresponding to a private right is not a duty which can be enforced by mandamus. An obligation which comes into existence by act of parties is not enforceable by a writ of mandamus. Hence the writ of mandamus cannot be issued for enforcing obligations arising out of a contract. In CIT v. State of Madras7, a contract was entered into between the petitioner and the government. There was a threat of breach of contract on the part of the government. The petitioner sought a writ of mandamus but the court refused, holding that the writ is only granted to compel the performance of a duty of a public nature. Secondly, the duty must be imperative and not a discretionary one; in other words, mandamus will lie to compel the performance of an absolute duty. "The office of a mandamus is to compel the performance of a plain and positive duty. It is issued upon the application of one who has a clear right to demand such performance, and who has no other adequate remedy. Thus where there was a duty cast upon the Deputy Commissioner to pay the money due to the applicant as a pension, it was held that it was open to the applicant to enforce the duty by means of a writ of mandamus. In an English case, an application was made under the Company Law for the registration of a company which the Registrar refused. The court issued a writ of mandamus to the Registrar as he had no power to refuse registration. No mandamus will lie where the duty is of a discretionary nature. In State of M.P. v. G.C. Mandawar8, it was held that under Rule 44 of the fundamental rules the grant of dearness allowance at a particular rate is a matter of grace and not a matter of right and hence a writ against the government for the grant of such allowance at a particular rate is not justified. For the same reason, no mandamus would lie to enforce administrative instructions without any statutory force, since no right can be founded on such instructions. Mandamus is issued to enforce the performance of ministerial functions and it must be issued when there is no alternative remedy to enforce such functions. A writ of mandamus does not issue to, or an order in the nature of mandamus is not made, against private persons. In Pragya Tools Corpn. V. C.A. Imanual9 was observed
7 8

AIR 1954 Mad. 54 AIR 1954 SC 493 9 1969 1 SCC 585

by Shelat, J. that an application for mandamus will not lie for an order of reinstatement to an office which is essentially of a private character, nor can such an application be maintained to secure performance of obligation owed by a company registered under the Companies Act towards its workmen or to resolve any private dispute. The Supreme Court held that if a writ of mandamus could not lie against a company which is neither a statutory company nor one Having public duties or responsibilities imposed upon it by a statute, no relief could also be given by granting a declaration on the ground of the agreement between the company and its workmen being illegal Mandamus is an order which is made against a person directing him to do some particular thing specified in the order which appertains to his office as in the nature of a public duty10. One of the conditions for the grant of the relief of mandamus is that there must be a demand for the relief and its refusal by the authority concerned. The court to which the application for the issue of mandamus is made will not constitute itself a court of appeal from the decision of the administrative authority and will not examine the correctness or otherwise of the decision on merits. While the court does not interfere with the exercise of administrative discretion, e.g., refusal to renew a licence, it will do so if there has been an illegal exercise of discretion. There is an illegal exercise of discretion where: (i) the order is made without, or in excess of jurisdiction, or (ii) is made mala fide, or (iii) the authority is influenced by extraneous consideration. A writ of mandamus cannot issue to the State Legislature to prevent it from considering a bill which is alleged to be in violation of the Constitution. No court can issue a mandate to a legislature to enact a particular law. Similarly no court can direct a subordinate legislative body to enact or not to enact a law which it may be competent to enact. Also no court can give a direction to a government to refrain from enforcing a provision of law. Mandamus has very commonly been issued to restrain an administrative authority from merely committing an ultra vires act. Likewise, it is issued to prevent the government from enforcing an unconstitutional Act or notification. A writ of mandamus lies to secure the performance of a public or statutory duty in the performance of which the one who applies for it has a right sufficient legal interest, or
10

Sohan lal v. Union of India, AIR 1957 SC 529

whose rights are directly and substantially invaded and are in imminent danger of being invaded. Normally, the Courts must be very cautious and slow in issuing mandamus to the High Constitutional functionaries such as President of India or Governor of a State. In S.P. Gupta v. Union of India11, except one judge others held that a writ of mandamus could not be issued to the President of India for fixing the strength of Judges in the High Courts and filling the vacancies. Later, in Supreme Court Advocates-on-Record Assn. v. Union of India12, the Court held that the judges strength is a justifiable issue and appropriate measures including the issuance of mandamus can be taken for that purpose.

3. Quo Warranto
The words 'quo warranto' 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 the writ of quo warranto is to prevent a person to hold an office which he is not legally entitled to hold. If the inquiry leads to the finding that the holder of the office has no valid title to it, the Court may pass an order preventing the holder to continue in office and may also declare the office vacant. If the holder of a public office was initially disqualified to hold that office, the writ of quo warranto would not be issued if at a subsequent stage that disqualification was removed and after the removal of the disqualification the incumbent concerned could have been appointed on the same post. The doctrine is that in cases where the initial disqualification is removed it would be open to the authorities concerned to appoint the same person immediately even if the court grants the writ of quo warranto as desired by the petitioner. The general principle is that the court would not pass any decree which becomes futile." Before the citizen can claim a writ of quo warranto, he must satisfy the court that the office in question is a public office and is held by a usurper without legal authority and

11 12

1981 Supp SCC 87 1993 4 SCC 441

that necessarily leads to the enquiry as to whether the appointment of the said alleged usurper has been made in accordance with law or not. A public office will mean an office in which the public have an interest. It has been held that the office of Speaker of a legislative assembly is a public office, and a writ can issue to him to inquire by what authority he supported his claim to the office.13 In G.D. Karkare v. T.L. Shevde14, the petitioner applied to the High Court for the issue of a writ of quo warranto against the Advocate-General of the State on the allegation that he was guilty of intrusion into the office of the Advocate-General, for at the date of appointment he did not possess the necessary qualifications prescribed by the Constitution for that office. It was held that a writ of quo warranto could issue as the office of the AdvocateGeneral was of a public nature. There is no question of delay in presenting a petition for a writ of quo warranto in which the right of a person to function in a certain capacity is challenged because every day the person so acts in that capacity a fresh cause of action arises. The issue of a writ of quo warranto is discretionary in nature and the petitioner is not necessarily entitled to the issue of a writ. Thus, where a person was holding a post for a long time and there was no complaint against him and the issue of a writ of quo warranto would have been vexatious, the High Court shall in its discretion refuse to issue a writ of quo warranto. The Calcutta High Court has held that acquiescence on the part of the petitioner may disentitle him to a writ of quo warranto. The writ of quo warranto will not lie in respect of an office of a private nature. In Jamalpur Arya Samaj v. Dr D. Ram15, the petitioner moved the High Court for issue of a writ in the nature of quo warranto against the members of the Working Committee of the Bihar Raj Arya Pratinidhi Sabhaa private religious association. The court refused the writ on the ground that a writ of quo warranto does not lie against an office of a private nature. It is also necessary that the office in respect of which a writ of quo warranto is moved must be of a substantive character. The words "substantive character" means an office

13 14

Anand Bihari v. Ram Sahay, AIR 1952 MB 31 AIR 1952 Nag 333 15 AIR 1954 Pat 297

independently entitled. In other words, the officer must be an independent official and not merely one discharging the functions of a deputy or servant at the will and pleasure of others. An application for the writ of quo warranto challenging the legality of an appointment to an office of a public nature is maintainable at the instance of any private person, although he is not personally aggrieved or interested in the matter. In G.D. Karkare v. T.L. Shevde16 the Nagpur High Court observed: "In proceedings for a writ of quo warranto the applicant does not seek to enforce any right of his as such nor does he complain of any non-performance of duty to him. What is in question is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from that office."

4. Prohibition
The term prohibition means to prohibit the writ is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction or acting contrary to the rules of natural justice, and to keep them, within the limits of their jurisdiction. The writ commands the court or tribunal to whom it is issued to refrain from doing something which it is about to do, which is not within its jurisdiction or power. The writ of prohibition is a jurisdictional writ and is issued in both cases, i.e., where there is excess of jurisdiction and where there is want of jurisdiction. The writ of prohibition prevents the inferior court from usurping a jurisdiction with which it was not legally vested. Prohibition has much in common with Certiorari. In Hari Vishnu Kamath v. S. Ahmad Ishaque17 the Supreme Court explained: Both the writs of prohibition and certiorari have for their object the restraining of inferior courts from exceeding their jurisdiction and they could be issued not merely to court, but to authorities exercising judicial or quasi-judicial functions. There is one fundamental distinction between the two writs. They are issued at different stages of the proceedings. When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can
16 17

AIR 1952 nag 330,334 AIR 1955 SC 233,241

move the superior court for a writ of prohibition, and on that, an order will issue forbidding the inferior court from continuing the proceedings. On the other hand, if the court hears that case or matter and gives a decision, the party aggrieved will have to move the superior court for a writ of certiorari, and on that, an order will be made quashing the decision on the ground of want of jurisdiction. Sometimes the two writs may overlap. Thus it may happen that in a proceeding before an inferior court a decision might have been passed which does not completely dispose of the matter, in which case it might be necessary to apply both for certiorari and prohibitioncertiorari for quashing what had been decided, and prohibition for arresting the further continuance of the proceeding. Authorities have gone to the extent that in such cases when an application is made for a writ of prohibition and there is no prayer for certiorari, it would be open to the court to stop further proceedings which are consequential on the decision. But if the proceedings have terminated then it is too late to issue prohibition and certiorari for quashing is the proper remedy to resort to. Broadly speaking, a writ of prohibition will lie when the proceedings are to any extent pending and a writ of certiorari for quashing after they have terminated in a final decision. In the case of Bengal Immunity Co. Ltd. v. State of Bihar18, the Supreme Court observed that the existence of an alternative remedy may be more relevant in the context of a writ of certiorari, but where an inferior tribunal is shown to have usurped jurisdiction which does not belong to it that consideration is irrelevant and the writ of prohibition has to issue as of right.

5. Certiorari
Certiorari means "to certify the writ of certiorari is an order issued to an inferior court or tribunal to transmit to it the record of proceedings pending with them for scrutiny and if necessary, for quashing the same. The writ of certiorari may be issued whenever a body of persons having legal authority to determine questions affecting the right of subjects, acts in excess of their legal authority. The writ of certiorari lies against judicial or quasi-judicial authorities. It is issued only if the act done by the inferior body or authority is a "judicial" act which term includes the concept of quasi-judicial act. The writ lies against a body or authority having the duty to

18

AIR 1955 SC 661

act judicially. The expression duty to act judicially cannot be defined exhaustively. As regards the functions of a court, there is clearly a duty to act judicially. In other cases, it has been held that it is to be decided in each case, in the light of the circumstances of that particular case and the construction of the Statutes as to whether there is a duty to act judicially. Grounds on which writ of certiorari are issued to a judicial or quasi-judicial body on the following grounds: (i) (ii) (iii) Want or excess of jurisdiction. Violation of procedure or disregards of principles of natural justice. Error of law apparent on the face of the record but not error of a fact.

Want or excess of jurisdiction: The writ of certiorari is issued to a body performing judicial or quasi-judicial function for correcting errors of jurisdiction, as when an inferior court or tribunal acts without jurisdiction, or in excess of it, or fails to exercise it. In Rafiq Khan v. State of U.P19., Section 85 of the U.P. Panchayat Raj Act, 1947, did not empower the Sub-Divisional Magistrate to modify the order of conviction and sentence passed by a Panchayat Adalat. He could either quash the entire order or cancel the jurisdiction of the Panchayat Adalat. The Magistrate maintained the conviction of the accused in respect of one of the offences only and quashed the conviction in respect of other offences. The Allahabad High Court quashed the conviction in respect of other offences by a writ of certiorari. Error of Law Apparent on the Face of the Record: The writ is also issued for correcting an error of law apparent on the face of record. It cannot be issued to correct an error of fact. What is an error of law apparent on the face of record is to be decided by the courts on the facts of each case. In Hah Vishnu v. Ahmad Ishaque20, the Supreme Court held that no error could be said to be error on the face of the record if it was not self-evident and if it required an examination or argument to establish it. An error of law which is apparent on the face of the record can be corrected by a writ of certiorari but not an error of fact, howsoever grave it may appear to be. The reason for the rule is that the court issuing a writ of certiorari acts in a supervisory jurisdiction and

19 20

AIR 1954 All 3. AIR 1955 SC 223.

not appellate jurisdiction. Accordingly, it cannot substitute its own decision on the merits of the case or give direction to be complied with by the inferior court or tribunal. Violation of Principles of Natural Justice: A writ of Certiorari shall be issued if the Court or tribunal acts in disregard of the principles of natural justice. The two generally accepted principles of natural justice are No man should be a Judge in his own cause (Rule against Bias) - The principle is that the adjudicator should not have an interest and should be unbiased. It means that the judge should be a neutral and disinterested person. Justice should not only be done but should manifestly and undoubtedly appear to be done. It requires that the judicial or quasi-judicial authority should not suffer from any bias, whether financial, departmental, pecuniary, personal, or as to subject-matter or otherwise, in favour or against, any party to a dispute. Audi Alteram Partem (Rule of Fair Hearing) - It requires that the authority deciding upon the rights of the parties must give a reasonable opportunity to the parties concerned to defend themselves and to present their case. The party concerned should be given adequate notice of the case against him and that he should be apprised of the evidence on which the case against him is based. He should be afforded opportunity to rebut the evidence against him to produce all relevant evidence on which he relies. That, no evidence should be taken behind his back. It further requires that the authority should give reasons for its decisions.