Updated: Aug 27, 2019
A "writ" is a legal document written by a judge or other body with administrative or judicial jurisdiction, such as a court, that orders the person to whom it is addressed to perform or stops from performing a specified action ,Whereas;
A "writ petition" can be filed by a person in the High Court under Article 226 of Indian Constitution or the Supreme Court of India under Article 32 of Indian Constitution when any of fundamental rights are violated.
Writs have been borrowed in India from England where they had a long varied history of development and small details of a set of rules.
Article 32(2) of the Constitution of India :’’ The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of rights conferred by this Part.”
As Article 32 is a fundamental right under Part -III of the Constitution. Thus, under Article 32, the Supreme Court Of India have power to relax the traditional rule of the right or capacity to bring an action or to appear in a court and allow the public interest litigation (PIL) at the instance of socially concerned citizens.
Article 226(1) of the Constitution of India : ” Notwithstanding anything in Article 32, every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.”
As this Article gives an assurance to individual to move the High Court for enforcement of the fundamental rights as well as for any other purpose also like other legal rights. Article 226 grant wide powers on the High Courts. Thus powers of High Courts granted under Article 226 are wider as compared to powers granted on the Supreme Court under Article 32 of the Constitution of India.
Types Of Writs In India
There are five major types of writs which are habeas corpus, mandamus, prohibition, quo warranto and certiorari.
Habeas Corpus - means ‘to have the body of’. By this writ the court directs the person or authority who has detained another person to bring the body of the prisoner before the court so the court can examines the reason of his/her detention and if there is no legal justification of his detention, he/she can be set free.Under Article 22 , a person arrested is required to be produced before a magistrate within 24 hours of his/her arrest , and failure to do so would entitle the arrested person to be released .
Mandamus - means “we command”. A petition for writ of mandamus can be filed by any person who seeks a legal duty to be performed by a person or a body. It is a Judicial order issued in the form of a command to any Constitutional, Statutory or Non-Statutory authority asking to carry out a public duty imposed by law or to refrain from doing a particular act, which the authority is not entitled to do under the law . Mandamus cannot be issued against 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 and to enforce some kind of private contract.
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. The writ of prohibition can be issued on the following grounds:(i) Absence or Excess of jurisdiction;(ii) Violation of the principles of natural justice;(iii) Unconstitutionality of a Statute;(iv) Infraction of Fundamental Rights.
Certiorari - means to “certify”. This writ directs the inferior courts,tribunals or authorities to transmit to the court the record of proceedings disposed of or pending therein for scrutiny , and,if necessary,for quashing the same. This is generally done because superior court believes that either the inferior court had no jurisdiction or committed an error of law. Thus, it is also called as a kind of curative writ.
Quo warranto - The term Quo Warranto means "what is your authority". It is used to judicially control executive action in the matter of making appointments to public offices under relevant statutory provisions. This writ is only applicable to the public offices and not to private offices.