1)HABEAS CORPUS-
Habeas Corpus is a latin phrase means 'have the body' or 'produce body' before the court. This is a writ in the nature of an order calling upon the person who has detained another to produce him before the court, in order to let the Court know what ground he has been confined and to set him free before if there is no legal justification of imprisonment. In other words , by this writ , the court directs the person or authority that has detained another person to bring the body of prisoner before the court so that court may decide the validity, jurisdiction or justification of such detention.
What is object of Writ ?
The writ of habeas corpus provides a prompt and effective remedy against illegal detention , to release a person from illegal detention and not to punish the detaining authority. The person illegally detained may make an application for the writ of habeas corpus. But if the prisoner himself unable to make such application, any other person related to him having interest in the prisoner but not a total stranger can make it. A Writ of habeas corpus may be issued against any person or authority that has illegally detained or arrested the prisoners. The Court may award monetary compensation to the person who has been illegally arrested or detained .
Rudal Shah v/s State of Bihar, 1983, Rs 35,000 by way of compensation was given for fourteen years detention in jail after acquittal order.
A writ of habeas corpus issued by the supreme court and high court must be obeyed by the person who it is issued otherwise it would amount to contempt of court. during emergency writ of habeas corpus can not be issued . It was held in A.D.M.Jabalbur v. Shivakant Shukla , 1976, Supreme court by majority held that during the emergency fundamental rights are suspended and no person has locus standi to move any court for writ of habeas corpus. A Writ of habeas corpus is available not only for release from detention by the state but also release from private detention. General principles of Res Judicata apply even to habeas corpus proceedings , but on fresh grounds a subsequent petitions for the same relief is maintainable even after dismissal of earlier one.
MANDAMUS -
What is Mandamus ?
Mandamus means a command. It is an order issued by a court to a public authority asking it to perform a public duty imposed upon it by the Constituon or by any other law. Writ of mandamus is a Judicial remedy which is in the nature of in the nature of an order from a superior Court i.e Supreme Court and a High court to any Government Court , Corporation or public authority to do or forbear from doing some specific act which that body is obliged under law to under law to do or refrain from doing , as the case may be, and which is in the nature of public duty and in certain cases of a statutory duty.
What are the conditions for the issue of writ of mandamus ?
1) Legal Right -
The Petitioner must have legal rights . In Umakant V/s State of Bihar , 1973, Supreme court held that when the petitioner contended that the Government had promoted his juniors and he had been left out , and it was found that the petitioner was not qualified for that post, hence petition dismissed.
2) Legal duty-
A Legal duty must have been imposed on the authority and the performance of the duty should be imperative. Such duty must be statutory either imposed by the Constitution or by any other statute or or some rule of common law but should not be contractual. If public authority invested with discretionary power abuses the power or exceeds it, or act malafide or there is non-application of mind by it or irrelevant considerations have been taken into account the writ of mandamus can be issued.
3) Good Faith -
An Application for mandamus must have been made in good faith and not for any ulterior motive. It will not be issued if designed to harass the respondent or with a view to cause personal grievances.
A person whose right has been infringed may apply for a writ of mandamus. The writ of mandamus is available against against all those bodies falling within the definition of state under Article .12 of the Constitution including Parliament and legislatures, Courts and tribunals, The Government and its officers, local authorities like municipalities , panchayats , State-owner of state-controlled corporations, Universities and other other educational institutions election authorities and other authorities.
Writ of mandamus in India will not lie against the President Or Governor of the state for the exercise and performance of powers and duties of his office or for any act act done or purporting to be done by him in the exercise and performance of powers and duties, of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties . they are immune under Art.361 of the constitution.
Writ of mandamus in India is most popular writ, extensively and successfully used by aggrieved persons.
3) PROHIBITION
What is prohibition ?
This writ can be issued against judicial or quasi-judicial authorities. When such authority exceeds its jurisdiction or tries to exercise jurisdiction not vested in it. In East India Commercial company v. Collector of customs, 1962, Supreme Court observed " A writ of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a proceeding therein on the ground that the proceedings is without or in excess of jurisdiction or contrary to the laws of the land , statury or otherwise."
The principle underlying the writ of prohibition is that 'prevention is better than cure'.
Grounds for issue of writ of prohibition -
1) Absence of jurisdiction -
In case of absence or total lack of jurisdiction, a Writ of prohibition would be available against a judicial or quasi-judicial authority prohibiting it from exercising jurisdiction not vested in it.
2) Violation of natural justice -
A writ of prohibition can also be issued when there is violation of principles of natural justice. If there is bias or prejudice on the part of the judge or if no notice was issued or hearing given to the person against whom the action is sought to be taken. There is no jurisdiction vested in the court or tribunal to proceed with such matter.
3) Ultra vires or unconstitutional act -
A Writ of prohibition will also be issued where if a court or a tribunal proceeds to act under a law which is ultra vires or unconstitutional. Thus, if The proceedings are pending in a court or tribunal under a statute which itself ultra vires Aet . 14,25,26 of the Constitution or is beyond the competence of legislature, a writ of prohibition can be issued against further proceedings.
4) Infringement of fundamental right -
A Writ of prohibition can be issued where the impugned action infringes the fundamental rights of the petitioner.
Writ of habeas corpus is a judicial writ. It may be issued against courts, tribunals and other quasi judicial authorities such as tax authorities , statutory authorities. Writ of prohibition cannot be issued against administrative authorities from discharging administrative , executive or ministerial functions and also against legislature restraining it from enacting or enforcing a law. The object of the writ of prohibition is to prevent unlawful assumption of jurisdiction. Therefore it can be issued only when it is proved that judicial or quasi judicial authority has no jurisdiction or acts in excess of jurisdiction vested in it .
4) CERTIORARI
What is certiorari ? Meaning of Certiorari -
In short, Certiorariis constitutional remedy. Certirari means to certify.
This writ is issued to an inferior Court or any other authority exercising judicial or quasi judicial functions to investigate and decide the legality and validity of the orders passed by it. It is required that the judges of the inferior court to certify the record of any matter in that court and send it to the superior Court for examination.
What is the object Of Certiorari ?
The object of writ of certiorari is to keep inferior Courts and quasi-judicial authorities within the limits of their jurisdiction , and if they act in excess of their jurisdiction their decision can be quashed by superior courts by issuing this writ.
What are conditions for the writ of Certiorari ?
The writ of certiorary can be issued if the following conditions are fulfilled -
1) The judicial or quasi-judicial body must have legal authority.
2) Such authority must be an authority to determine questions affecting rights of subjects.
3) It must have duty to act judicially , and
4) It must have acted in excess of its authority.
Grounds -
A) Error of Jurisdiction -
When an inferior Court or tribunal acts without jurisdiction or in excess of its jurisdiction or fails to exercise jurisdiction vested in it by law, a writ of certiorari may be issued against it .
In R V. Minister of transport,1934, king bench quashed the order on the ground that it was without jurisdiction and therefore ultra vires. In this case a minister who was not empowered to revoke a licence, but he revoked licence by passing an order.
In Ebrahim Aboobaker v Tek chand ,1953, Supreme court held that in absence of any provision in the relevant statute, after a death of a man, his property can not be declared evacuee property and the decision of the authority was quashed on the ground of lack of jurisdiction.
B) Judicial Fact -
The fact or facts upon which an administrative agency's power to act depends can be called as a jurisdictional facts. If the jurisdictional facts does not exist, the court or tribunal cannot act.
C) Error Apparent on face of record -
A decision of inferior Court or tribunal may be quashed by a writ of certirari, if there is an error of law apparent on the face of record.
D) Violation of Natural justice
A writ of certiorari can be issued when there is violation of principle of natural justice.
A writ of certiorari lies against subordinate courts, Inferior tribunals, quasi judicial bodies and adjudicating authorities. Supreme court in Prabod Verma V. State of U.P., 1984, Held that "a writ of certiorari can never be issued to call for the record of papers and proceedings of an Act or Ordinance and for quashing such Act or Ordinance."
Habeas Corpus is a latin phrase means 'have the body' or 'produce body' before the court. This is a writ in the nature of an order calling upon the person who has detained another to produce him before the court, in order to let the Court know what ground he has been confined and to set him free before if there is no legal justification of imprisonment. In other words , by this writ , the court directs the person or authority that has detained another person to bring the body of prisoner before the court so that court may decide the validity, jurisdiction or justification of such detention.
What is object of Writ ?
The writ of habeas corpus provides a prompt and effective remedy against illegal detention , to release a person from illegal detention and not to punish the detaining authority. The person illegally detained may make an application for the writ of habeas corpus. But if the prisoner himself unable to make such application, any other person related to him having interest in the prisoner but not a total stranger can make it. A Writ of habeas corpus may be issued against any person or authority that has illegally detained or arrested the prisoners. The Court may award monetary compensation to the person who has been illegally arrested or detained .
Rudal Shah v/s State of Bihar, 1983, Rs 35,000 by way of compensation was given for fourteen years detention in jail after acquittal order.
A writ of habeas corpus issued by the supreme court and high court must be obeyed by the person who it is issued otherwise it would amount to contempt of court. during emergency writ of habeas corpus can not be issued . It was held in A.D.M.Jabalbur v. Shivakant Shukla , 1976, Supreme court by majority held that during the emergency fundamental rights are suspended and no person has locus standi to move any court for writ of habeas corpus. A Writ of habeas corpus is available not only for release from detention by the state but also release from private detention. General principles of Res Judicata apply even to habeas corpus proceedings , but on fresh grounds a subsequent petitions for the same relief is maintainable even after dismissal of earlier one.
MANDAMUS -
What is Mandamus ?
Mandamus means a command. It is an order issued by a court to a public authority asking it to perform a public duty imposed upon it by the Constituon or by any other law. Writ of mandamus is a Judicial remedy which is in the nature of in the nature of an order from a superior Court i.e Supreme Court and a High court to any Government Court , Corporation or public authority to do or forbear from doing some specific act which that body is obliged under law to under law to do or refrain from doing , as the case may be, and which is in the nature of public duty and in certain cases of a statutory duty.
What are the conditions for the issue of writ of mandamus ?
1) Legal Right -
The Petitioner must have legal rights . In Umakant V/s State of Bihar , 1973, Supreme court held that when the petitioner contended that the Government had promoted his juniors and he had been left out , and it was found that the petitioner was not qualified for that post, hence petition dismissed.
2) Legal duty-
A Legal duty must have been imposed on the authority and the performance of the duty should be imperative. Such duty must be statutory either imposed by the Constitution or by any other statute or or some rule of common law but should not be contractual. If public authority invested with discretionary power abuses the power or exceeds it, or act malafide or there is non-application of mind by it or irrelevant considerations have been taken into account the writ of mandamus can be issued.
3) Good Faith -
An Application for mandamus must have been made in good faith and not for any ulterior motive. It will not be issued if designed to harass the respondent or with a view to cause personal grievances.
A person whose right has been infringed may apply for a writ of mandamus. The writ of mandamus is available against against all those bodies falling within the definition of state under Article .12 of the Constitution including Parliament and legislatures, Courts and tribunals, The Government and its officers, local authorities like municipalities , panchayats , State-owner of state-controlled corporations, Universities and other other educational institutions election authorities and other authorities.
Writ of mandamus in India will not lie against the President Or Governor of the state for the exercise and performance of powers and duties of his office or for any act act done or purporting to be done by him in the exercise and performance of powers and duties, of his office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties . they are immune under Art.361 of the constitution.
Writ of mandamus in India is most popular writ, extensively and successfully used by aggrieved persons.
3) PROHIBITION
What is prohibition ?
This writ can be issued against judicial or quasi-judicial authorities. When such authority exceeds its jurisdiction or tries to exercise jurisdiction not vested in it. In East India Commercial company v. Collector of customs, 1962, Supreme Court observed " A writ of prohibition is an order directed to an inferior Tribunal forbidding it from continuing with a proceeding therein on the ground that the proceedings is without or in excess of jurisdiction or contrary to the laws of the land , statury or otherwise."
The principle underlying the writ of prohibition is that 'prevention is better than cure'.
Grounds for issue of writ of prohibition -
1) Absence of jurisdiction -
In case of absence or total lack of jurisdiction, a Writ of prohibition would be available against a judicial or quasi-judicial authority prohibiting it from exercising jurisdiction not vested in it.
2) Violation of natural justice -
A writ of prohibition can also be issued when there is violation of principles of natural justice. If there is bias or prejudice on the part of the judge or if no notice was issued or hearing given to the person against whom the action is sought to be taken. There is no jurisdiction vested in the court or tribunal to proceed with such matter.
3) Ultra vires or unconstitutional act -
A Writ of prohibition will also be issued where if a court or a tribunal proceeds to act under a law which is ultra vires or unconstitutional. Thus, if The proceedings are pending in a court or tribunal under a statute which itself ultra vires Aet . 14,25,26 of the Constitution or is beyond the competence of legislature, a writ of prohibition can be issued against further proceedings.
4) Infringement of fundamental right -
A Writ of prohibition can be issued where the impugned action infringes the fundamental rights of the petitioner.
Writ of habeas corpus is a judicial writ. It may be issued against courts, tribunals and other quasi judicial authorities such as tax authorities , statutory authorities. Writ of prohibition cannot be issued against administrative authorities from discharging administrative , executive or ministerial functions and also against legislature restraining it from enacting or enforcing a law. The object of the writ of prohibition is to prevent unlawful assumption of jurisdiction. Therefore it can be issued only when it is proved that judicial or quasi judicial authority has no jurisdiction or acts in excess of jurisdiction vested in it .
4) CERTIORARI
What is certiorari ? Meaning of Certiorari -
In short, Certiorariis constitutional remedy. Certirari means to certify.
This writ is issued to an inferior Court or any other authority exercising judicial or quasi judicial functions to investigate and decide the legality and validity of the orders passed by it. It is required that the judges of the inferior court to certify the record of any matter in that court and send it to the superior Court for examination.
What is the object Of Certiorari ?
The object of writ of certiorari is to keep inferior Courts and quasi-judicial authorities within the limits of their jurisdiction , and if they act in excess of their jurisdiction their decision can be quashed by superior courts by issuing this writ.
What are conditions for the writ of Certiorari ?
The writ of certiorary can be issued if the following conditions are fulfilled -
1) The judicial or quasi-judicial body must have legal authority.
2) Such authority must be an authority to determine questions affecting rights of subjects.
3) It must have duty to act judicially , and
4) It must have acted in excess of its authority.
Grounds -
A) Error of Jurisdiction -
When an inferior Court or tribunal acts without jurisdiction or in excess of its jurisdiction or fails to exercise jurisdiction vested in it by law, a writ of certiorari may be issued against it .
In R V. Minister of transport,1934, king bench quashed the order on the ground that it was without jurisdiction and therefore ultra vires. In this case a minister who was not empowered to revoke a licence, but he revoked licence by passing an order.
In Ebrahim Aboobaker v Tek chand ,1953, Supreme court held that in absence of any provision in the relevant statute, after a death of a man, his property can not be declared evacuee property and the decision of the authority was quashed on the ground of lack of jurisdiction.
B) Judicial Fact -
The fact or facts upon which an administrative agency's power to act depends can be called as a jurisdictional facts. If the jurisdictional facts does not exist, the court or tribunal cannot act.
C) Error Apparent on face of record -
A decision of inferior Court or tribunal may be quashed by a writ of certirari, if there is an error of law apparent on the face of record.
D) Violation of Natural justice
A writ of certiorari can be issued when there is violation of principle of natural justice.
A writ of certiorari lies against subordinate courts, Inferior tribunals, quasi judicial bodies and adjudicating authorities. Supreme court in Prabod Verma V. State of U.P., 1984, Held that "a writ of certiorari can never be issued to call for the record of papers and proceedings of an Act or Ordinance and for quashing such Act or Ordinance."
5) Quo warranto
It is a Latin term means 'what is your authority or show your
authority' by issuing this writ the person concerned is called upon to
show the court by what authority he holds the office or liberty .If the
holder has no authority to hold the office he can be ousted from its
enjoyment.
Object
The object of the Quo-warranto is to control executive action in the
matter of making appointment of public offices against the relevance
statutory provision.
Conditions
1) Nature of the office must be public
The means an office in which Public has interest. Before the writ can
be issued by the court the court must be satisfied that the office in
question is a public office and the older thereof has no legal authority
to hold the said office.
2) The office Must be of substantive characters
It means the office in question must be an independent office and the
holder of such office must be an independent official.
3) The office must be statutory or constitutional
A writ of quo warranto may be issued in respect of offices of prime
minister advocate general, judge of high court, Public Prosecutor,
Speaker of House of the state legislature, member of municipal body,
University officials etc .
4) The holder must have asserted his claim to the office
A mere making a claim to the office is not enough .
Quo-Warranto is a discretionary remedy and the petitioner cannot Claim
this writ as of right. Supreme Court in Rameshwar vs State 1961, held
that Court may refuse or grant this writ taking into account the fact
and circumstances of the case .This writ may also be refused on ground
that suitable alternative remedy is available to the petitioner.
Moreover a writ of quo warranto cannot be refused only on the ground of
delay because the appointment of the officer will be illegal hence every
act of everyday give a fresh cause of action and hence petition cannot
be dismissed on the ground of delay.
Conclusion
One of the important and fundamental concept in English as well as in
Indian legal system is Ubi Jus ibi remedium , for example wherever
there is a right there is a remedy . The right and remedy are two sides
of same coin and they cannot be separated from each other. One of such
remedies available to an individual aggrieved by any action of
Administrative authority is judicial review by way of prerogative
remedies. There Prerogative remedies are provided with writs. The
constitution of India under article 32 and 226 gives power to the
supreme court and the high court to issue prerogative writs in the
nature of habeas Corpus ,mandamus ,prohibition, certiorari, Quo
waerranto. The framer of the Indian Constitution made specific
provisions in the constitution itself empowering the supreme court and
high courts to issue above writs. Therefore these remedies are also
known as constitutional remedies.
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