Writs: Habeas Corpus to Quo Warranto

Notes

Writs are formal orders issued by courts to enforce rights. The Supreme Court (Art. 32) and High Courts (Art. 226) issue five types of writs, adopted from English law (prerogative writs). The Supreme Court can issue writs against any person or authority in India; a High Court can do so within its territorial jurisdiction, or where the cause of action arises within it (Art. 226(2)).

1. Habeas Corpus ("to have the body")

Orders the person who has detained another to produce the detainee before the court so it can examine the legality of detention. It is a safeguard against illegal or arbitrary detention.
Issued against public authorities and private individuals. Anyone can file on behalf of the detainee.
Not issued where detention is lawful, by a competent court order, for contempt of court or legislature, or where the court has no jurisdiction.
Kanu Sanyal v District Magistrate (1973): the court need not insist on physical production of the detainee.

2. Mandamus ("we command")

Commands a public official, body, corporation or lower court to perform a public legal duty it has failed or refused to perform.
Not issued against: a private individual or body (unless statutory duty), the President or Governors personally, a Chief Justice acting judicially, discretionary or non-statutory duties, or contractual obligations.
Requires a legal right of the petitioner and a public duty on the respondent.

3. Prohibition ("to forbid")

Issued by a higher court to a lower court or tribunal to prevent it from exceeding its jurisdiction or acting contrary to natural justice. It is preventive: issued while proceedings are pending.
Available against judicial and quasi-judicial bodies only, not administrative, legislative or private bodies.

4. Certiorari ("to be certified")

Issued by a higher court to quash an order already passed by a lower court, tribunal or quasi-judicial authority that acted in excess of jurisdiction, committed an error of law apparent on the face of the record, or violated natural justice. It is curative: issued after the decision.
Originally limited to judicial and quasi-judicial bodies; the Supreme Court has extended it to administrative authorities affecting rights.
Distinguish: prohibition prevents, certiorari cures.

5. Quo Warranto ("by what authority")

Issued to enquire into the legality of a person's claim to a public office, and to oust an unqualified holder.
Applies to substantive public offices of a permanent nature, created by statute or the Constitution; not to ministerial or private offices.
Any interested person can file, not necessarily one directly aggrieved.

Writ	Meaning	Against	Nature
Habeas Corpus	Produce the body	Any detaining authority or person	Liberty
Mandamus	We command	Public officials and bodies	Duty
Prohibition	To forbid	Lower courts and tribunals	Preventive
Certiorari	To be certified	Lower courts and tribunals	Curative
Quo Warranto	By what authority	Holder of public office	Legality of office

Key Points

Five writs: habeas corpus, mandamus, prohibition, certiorari, quo warranto.
Prohibition and certiorari: judicial and quasi-judicial bodies; prohibition before, certiorari after.
Mandamus does not lie against President, Governors, or private persons.
Quo warranto: permanent public offices; anyone interested may apply.
Parliament can empower other courts to issue writs (Art. 32(3)).

MCQs

Q1. The writ of Habeas Corpus literally means:
(a) We command
(b) To have the body
(c) By what authority
(d) To be certified
Ans: (b).

Q2. The writ used to compel a public official to perform a public duty is:
(a) Certiorari
(b) Prohibition
(c) Mandamus
(d) Quo warranto
Ans: (c).

Q3. Which writ is issued to examine the legality of a person's claim to a public office?
(a) Mandamus
(b) Quo warranto
(c) Certiorari
(d) Prohibition
Ans: (b).