Chapters :
  • THE FUNDAMENTAL RIGHTS – 08
  • Mandamus
  • Prohibition
  • Certiorari
  • Quo Warranto

THE FUNDAMENTAL RIGHTS – 08

Habeas Corpus: The purpose of this writ is to secure the release of a person who is illegally detained or imprisoned under unlawful conditions. It is vital in protecting the Right to life and personal liberty guaranteed under article 21. The writ petition can be filed either by the victim himself or by any other person on behalf of the victim.

When a writ of Habeas Corpus is issued, the detained person has to be produced physically in the court. If the court finds the detention unlawful, the person will be set free.

Detention is unlawful under the following circumstances:

  1. When a detained person is not produced before a magistrate within 24 hours of detention;
  2. When a person is arrested for non violation of any law;
  3. When a person is arrested under a law which is unconstitutional;
  4. When a person is detained solely to harm him.
  • Protection under Habeas Corpus is available against the arbitrary actions of both the State and the private individuals.
  • The Supreme Court can issue Habeas Corpus only against the State, whereas the High Courts can issue it against the State and the private individuals as well.

2.Mandamus:It is the command issued by the courts to a public authority such as a public official, public body, corporations, inferior courts, tribunals or the government on failing to perform their official duty.

Mandamus can be issued to enforce an action or stop an action, hence it does the work of other writs such as certiorari and prohibition.

Mandamus cannot be issued in the following cases:

       1.It cannot be issued against private individuals or bodies. The nature of ‘duty’ must be public not private;

       2.When the duty is discretionary not mandatory;

       3.It cannot be issued against the President and the Governors;

       4.It cannot be issued against the working Chief Justice;

       5.It cannot be issued to enforce private contracts.

        6.It is not applicable to the duty which is ministerial in nature, wherein the authority is bound to act on the instructions of superiors.

3.Prohibition:It is issued by a higher court to prevent the proceedings of a lower court or a tribunal. It is preventive in nature, hence it has to be issued before a lower court arrives at a decision.

4.Certiorari: It is issued by a higher court to either transfer a case that has been pending in a lower court or to squash the decision of a lower court. It is issued against judicial and quasi-judicial bodies. In 1991, the Supreme Court ruled that certiorari can be issued even against the executive authorities that affect the rights of individuals.

 

5.Quo Warranto:It is issued by a court to stop a person from illegally occupying a public office. But this writ is available only for substantive offices of permanent nature, created by the constitution or a law. Example: Teacher, Speaker of Legislative Assembly, etc

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