Law of Writs

Only available on StudyMode
  • Download(s) : 313
  • Published : March 1, 2012
Open Document
Text Preview
Law of Writs

In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction. In modern usage, this body is generally a court. Writs are extraordinary legal remedies offered to individuals who do not obtain adequate protection under ordinary law. The main types of writs are warrants and prerogative but there are many others also.

Writs under English law

The origin of writs can be drawn from the English judicial system. The law of writs has its origin from the orders passed by the King’s Bench in England. Writs were issued on a petition presented to the king in council and were considered as a royal order. Writs were a written order in the name of the king which acted as groundwork for the subsequent proceedings. However, with different segments writs took various forms and names. The writs were issued by the crown and in the interest of the crown but with the passage of time it became available for ordinary citizens also. However a prescribed fee was charged for it and the filing of these writs were known as purchase of a writ.

Writs under Indian law

The origin of writs in India goes back to the Regulating Act, 1773 under Supreme Court was established at Calcutta. The Charter also established other high courts and these High Courts had analogous power to issue writs as successor to the Supreme Court. The other courts which were established subsequently did not enjoy this power. The writ jurisdiction of these courts was limited to their original civil jurisdiction which they enjoyed under section 45 of the Specific Relief Act, 1877.

But at present, Article 32 and 226 of the Constitution gives power to the Supreme Court and High Court to issue writs in case of breach of fundamental rights of any citizen by the State. By such writs the judiciary can control the administrative actions and prevent any kind of arbitrary use of power and discretion. There has been specifically made provisions in the Constitution which empowers the Supreme Court and high courts to issue writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari. Unless such constitutional remedies for its enforcement is not provided the rights guaranteed by Part III of the Constitution cannot be ever implemented by citizens. But the distinction between the two remedies is very negligible. The remedy under Article 32 is confined to enforcement of fundamental rights whereas Article 226 is available not only against the enforcement of fundamental rights but also for any other purpose. In the absence of the provisions of such remedies no one can enforce its rights given. Thus wherever there is a right there must be a remedy for it. Thus it should satisfy the maxim, ‘ubi jus ibi remedium’.

One of the principle makers of the Constitution, Dr. Ambedkar has given the prime importance to Article 32 among all other articles from the Indian constitution. He has referred that, “it is the very soul of the constitution and very heart of it”.

Devilal v. STO
There can be no doubt that the fundamental rights, guaranteed to the citizens are a significant feature of our constitution and the High Courts under Article 226 are bound to protect these fundamental rights.

Daryao v. State of U.P.
It was held that the right to obtain a writ must equally be a fundamental right when a petitioner presents the case. Thus, it cannot be considered as an individual’s right to move the Supreme Court but it is also the duty and responsibility of the Supreme Court to protect the fundamental rights.

The constitution of India recognises five forms of writ petitions: 1.Habeas corpus
5.Quo warranto

Habeas corpus

The Latin term ‘habeas corpus’ means ‘you may have the body’. The incalculable value of habeas corpus is that it enables the immediate determination of the right of the appellant’s freedom. The writ of habeas corpus is a process for...
tracking img