The Constitution of India has conferred on Supreme Court and High Courts power to issue writs. Writ Jurisdiction of Supreme Court and High Courts extends not only to inferior courts and tribunals but also to the state of any authority or person endowed with state authority.
There is difference between the Writ Jurisdiction of Supreme Court and High Courts as follows:
- The Writ Jurisdiction of Supreme Court is mentioned under Article 32 of the Indian Constitution, while the Writ Jurisdiction of High Courts is mentioned under Article 226 of the Indian Constitution.
- The High Courts have wider powers as to compare to Supreme Court in issuing writs.
- The Supreme Court can issue writ only in case of violation of any of the fundamental rights contained in Part-III of the constitution, while the High Courts can issue writs not only in case of violation of fundamental rights but also in case of violation of any legal rights of the citizens provided that a writ is a proper remedy in such cases, according to well-established principles.
- Article 32 of the Constitution of India imposes on the Supreme Court a duty to issue the writs, whereas no such duty is imposed on the High Courts by Art-226.
- The jurisdiction of the Supreme Court extends all over the country, whereas that of the High Courts only to the territorial confines of the particular state and the Union Territory to which its jurisdiction extends.
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Types of Writs
There are five types of Writs – Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo warranto.
1. Habeas Corpus
“Habeas Corpus” is a Latin term which literally means “you may have the body.” The writ is issued to produce a person who has been detained , whether in prison or in private custody, before a court and to release him if such detention is found illegal.
Mandamus is a Latin word, which means “We Command”. Mandamus is an order from the Supreme Court or High Court to a lower court or tribunal or public authority to perform a public or statutory duty. This writ of command is issued by the Supreme Court or High court when any government, court, corporation or any public authority has to do a public duty but fails to do so.
Literally, Certiorari means to be certified. The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court, tribunal or quasi-judicial authority.
There are several conditions necessary for the issue of the writ of certiorari .
- There should be court, tribunal or an officer having legal authority to determine the question with a duty to act
- Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or officer.
- The order could also be against the principles of natural justice or the order could contain an error of judgment in appreciating the facts of the case.
The Writ of prohibition means to forbid or to stop and it is popularly known as ‘Stay Order’. This writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, or quasi-judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to try. After the issue of this writ, proceedings in the lower court etc. come to a stop.
Difference between Prohibition and Certiorari:
- While the writ of prohibition is available during the pendency of proceedings, the writ of certiorari can be resorted to only after the order or decision has been announced.
- Both the writs are issued against legal bodies.
5. The Writ of Quo-Warranto
The word Quo-Warranto literally means “by what warrants?” or “what is your authority”? It is a writ issued with a view to restrain a person from holding a public office to which he is not entitled. The writ requires the concerned person to explain to the Court by what authority he holds the office. If a person has usurped a public office, the Court may direct him not to carry out any activities in the office or may announce the office to be vacant. Thus, High Court may issue a writ of quo-warranto if a person holds an office beyond his retirement age.
Conditions for issue of Quo-Warranto
- The office must be public and it must be created by a statue or by the constitution itself.
- The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.
- There must have been a contravention of the constitution or a statute or statutory instrument, in appointing such person to that office.