Types of Writs - What are Writs?

Types of Writs - What are Writs? - Indian Polity Notes

What is Writ?

Writs are a written order from Supreme Court or High Court that commands constitutional remedies for Indian Citizens against the violation of their fundamental rights. Article 32 in the Indian Constitution deals with constitutional remedies that an Indian citizen can seek from the Supreme Court and High Court against the violation of his/her fundamental rights. The same article gives the Supreme Court power to issue writs for the enforcement of rights whereas the High Court has the same power under Article 226. The writs- Habeas Corpus, Mandamus, Certiorari, Quo Warranto and Prohibition form an important topic for IAS Exam and its three stages- Prelims, Mains and Interview.

This article will mention the types of writs that come under the original jurisdiction of the Supreme Court and High Courts, forming an important part of UPSC Mains GS-II and Political Science optional.

Types of Writs in India. 

Types of Writs in India

Supreme Court of India is the defender of the fundamental rights of the citizens. For that, it has original and wide powers. It issues five kinds of writs for enforcing the fundamental rights of the citizens. The five types of writs are:

1. Habeas Corpus
2. Mandamus
3. Prohibition
4. Certiorari
5. Quo-Warranto

Aspirants should go through these writs one-by-one as all of these are important for UPSC prelims and UPSC Mains and can help score well if understood with clarity.

Habeas Corpus

The Latin meaning of the word ‘Habeas Corpus’ is ‘To have the body of.’ This writ is used to enforce the fundamental right of individual liberty against unlawful detention. Through Habeas Corpus, Supreme Court/ High Court orders one person who has arrested other person to bring the body of the latter before the court.

Facts about Habeas Corpus in India:

• Supreme Court or High Court can issue this writ against both private and public authorities.
• Habeas Corpus can not be issued in the following cases:
  • When detention is lawful
  • When the proceeding is for contempt of a legislature or a court
  • Detention is by a competent court
  • Detention is outside the jurisdiction of the court

Mandamus

The literal meaning of this writ is ‘We command.’ This writ is used by the court to order the public official who has failed to perform his duty or refused to do his duty, to resume his work. Besides public official, Mandamus can be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose.

Facts about Mandamus in India:

• Unlike Habeas Corpus, Mandamus cannot be issued against a private individual
• Mandamus can not be issued in the following cases:
  • To enforce departmental instruction that does not possess statutory force
  • To order someone to work when the kind of work is discretionary and not mandatory
  • To enforce a contractual obligation
  • Mandamus can’t be issued against Indian President or State Governors
  • Against the chief justice of a high court acting in a judicial capacity

Prohibition

The literal meaning of ‘Prohibition’ is ‘To forbid.’ A court which is higher in position issues Prohibition writ against a court which is lower in position to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess. It directs inactivity.

Facts about Prohibition in India:

• Writ of Prohibition can only be issued against judicial and quasi-judicial authorities.
• It can’t be issued against administrative authorities, legislative bodies, and private individuals or bodies.

Certiorari

The literal meaning of the writ of ‘Certiorari’ is ‘To be certified’ or ‘To be informed.’ This writ is against issued by a court higher in authority to a lower court or tribunal ordering them either to transfer a case pending with them to itself or to squash their order in a case. It is issued on the grounds of an excess of jurisdiction or lack of jurisdiction or error of law. It not only prevents but also cures for the mistakes in the judiciary.

Facts about Certiorari in India:

• Pre-1991: The writ of Certiorari used to be issued only against judicial and quasi-judicial authorities and not against administrative authorities
• Post-1991: Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting the rights of individuals
• It cannot be issued against legislative bodies and private individuals or bodies.

Quo-Warranto

The literal meaning of the writ of ‘Quo-Warranto’ is ‘By what authority or warrant.’ Supreme Court or High Court issue this writ to prevent illegal usurpation of a public office by a person. Through this writ, the court enquires into the legality of a claim of a person to a public office

Facts about Quo-Warranto in India:

• Quo-Warranto can be issued only when the substantive public office of a permanent character created by a statute or by the Constitution is involved
• It can’t be issued against private or ministerial office

Note: Unlike the other four writs, this is the only writ that gives the right to seek redressal to any individual other than the aggrieved person.

General Facts about Writs in India:

• Article 32 also empowers Parliament to authorize any other court to issue these writs
• Before 1950, only the High Courts of Calcutta, Bombay and Madras had the power to issue the writs
• Article 226 empowers all the high courts of India to issue the writs
• Writs of India are borrowed from English law where they are known as ‘Prerogative writs’

How Writ Jurisdiction of Supreme Court Differs from that of High Court?

Where Article 32 of Indian Constitution empowers the Supreme Court to issue writs; Article 226 empowers High Courts of India. However, there are a few differences between the writ jurisdiction of both the courts which are given in the table below:

Difference	Supreme Court	High Court
Purpose	To only enforce fundamental rights	To enforce fundamental rights but also for other purposes (The expression ‘for any other purpose’ refers to the enforcement of an ordinary legal right
Territorial Jurisdiction	Against a person or government throughout the territory of India	Against a person residing, government or authority located within its territorial jurisdiction only Or Outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction
Power	Article 32 is a fundamental right- Supreme Court may not refuse to exercise its power to issue the writs	Discretionary-May refuses to exercise its power to issue writs

Public Interest Litigation (PIL)

Public Interest Litigation (PIL) - Indian Polity Notes

Public Interest Litigation (PIL) implies litigation for the protection of public interests. This is an important concept in law and polity, and is often seen in the news. Hence, it acquires importance for the IAS exam. In this article, you can read all about PILs in India.

Public Interest Litigation

A Public Interest Litigation (PIL) is introduced in a court of law not by the aggrieved party but by a private party or by the court itself.

• PILs have become a potent tool for enforcing the legal obligation of the executive and the legislature.
• The chief objective behind PILs are ensuring justice to all and promoting the welfare of the people.
• It is generally used to safeguard group interests and not individual interests, for which Fundamental Rights have been provided.
• The Supreme Court of India and the High Courts have the right to issue PILs.
• The concept of PILs stem from the power of judicial review.
• The concept of PILs have diluted the principle of locus standi, which implies that only the person/party whose rights have been infringed upon can file petitions.
• It has most ideally and commonly been used to challenge the decisions of public authorities by judicial review, to review the lawfulness of a decision or action, or a failure to act, by a public body.
• PILs have played an important role in India’s polity. They have been responsible for some landmark judgements in India such as the banning of the instant triple talaq, opened up the doors of the Sabarimala and the Haji Ali shrines to women, legalised consensual homosexual relations, legalised passive euthanasia, and so on.

Procedure to File PIL

Any Indian citizen or organisation can move the court for a public interest/cause by filing a petition:

1. In the SC under Article 32
2. In the High Courts under Article 226
3. In the Courts of Magistrate under Section 133 of the Criminal Procedure Code (CrPC).

The court can treat a letter as a writ petition and take action on it. The court has to be satisfied that the writ petition complies with the following: the letter is addressed by the aggrieved person or a public-spirited individual or a social action group for the enforcement of legal or constitutional rights to any person who, upon poverty or disability, are not able to approach the court for redress. The court can also take action on the basis of newspaper reports if it is satisfied with the case.

History of Public Interest Litigation in India

In 1979, Kapila Hingorani filed a petition and secured the release of almost 40000 undertrials from Patna’s jails in the famous ‘Hussainara Khatoon’ case. Hingorani was a lawyer. This case was filed in the SC before a Bench led by Justice P N Bhagwati. Hingorani is called the ‘Mother of PILs’ as a result of this successful case. The court permitted Hingorani to pursue a case in which she had no personal locus standi making PILs a permanent fixture in Indian jurisprudence.

Justice Bhagwati did a lot to ensure that the concept of PILs was clearly enunciated. He did not insist on the observance of procedural technicalities and even treated ordinary letters from public-minded individuals as writ petitions. Justice Bhagwati and Justice V R Krishna Iyer were among the first judges in the country to admit PILs.

Significance of Public Interest Litigation

The original purpose of PILs have been to make justice accessible to the poor and the marginalised.

• It is an important tool to make human rights reach those who have been denied rights.
• It democratises the access of justice to all. Any citizen/agency who is capable can file petitions on behalf of those who cannot or do not have the means to do so.
• It helps in judicially monitoring state institutions like prisons, asylums, protective homes, etc.
• It is an important tool in judicial review.

Criticism of Public Interest Litigation 

Off late, PILs have become a tool for publicity. People file frivolous petitions which result in the wastage of time of the courts. People have used them with a political agenda as well. They unnecessarily burden the judiciary. Even if the petition is eventually dismissed, the courts spend time and effort on them before dismissing them.

At present, only judges have the power to dismiss a petition. The Registry of the SC or HC only ensures that the technical requirements of filing a petition are fulfilled. As a result of which petitions are admitted to the court irrespective of the merits of the case.

UPSC Questions related to Public Interest Litigation

What is considered a public interest?

It refers to legal practices undertaken to help economically weak or marginalized people, or to effect change in social policies in the public interest, on ‘not for profit’ terms.

Who can file public interest litigation?

Any person can file a PIL. The petitioner need not be the aggrieved person. Even an organisation can file a PIL.

How much does it cost to file a PIL?

The court fee for filing a Public Interest Litigation is Rs.500 per petitioner. There are also additional expenses for documentation which would have to be borne by the petitioner.

Is PIL a writ?

A writ is a written command given by a court. It can be to enforce an action, or stopping an action from happening. A PIL is a form of writ, with just one specification that the matter is related to the general well being of the public instead of a particular litigant.

Judicial Review

Judicial Review refers to the power of the judiciary to review and determine the validity of a law or an order. This is an important topic in the UPSC syllabus because it is often seen in the news. There are many examples of judicial review. You will read some judicial review examples and more about this concept in this article.

Judicial Review

Judicial review is defined as the doctrine under which executive and legislative actions are reviewed by the judiciary. Even though we have in India the principle of separation of powers of the three arms of the State, namely, the executive, the legislative and the judiciary, the judiciary is vested with the power of review over actions of the other two arms.

• Judicial review is considered a basic structure of the constitution (Indira Gandhi vs Raj Narain Case).
• Judicial review is the power of the courts to consider the constitutionality of acts of organs of Government and declare it unconstitutional if it violates or is inconsistent with the basic principles of the Constitution.
• This means that the power of the legislature to make laws is not absolute and that the validity and constitutionality of such laws are subject to review by the courts.
• Judicial review is also called the interpretational and observer roles of the Indian judiciary.
• Suo Moto cases and the Public Interest Litigation (PIL), with the discontinuation of the principle of Locus Standi, have allowed the judiciary to intervene in many public issues, even when there is no complaint from the aggrieved party.

Judicial Review and Constitution

According to Article 13(2), the Union or the States shall not make any law that takes away or abridges any of the fundamental rights, and any law made in contravention of the aforementioned mandate shall, to the extent of the contravention, be void.

• Judicial review is called upon to ensure and protect Fundamental Rights which are guaranteed in Part III of the Constitution.
• The power of the Supreme Court of India to enforce these Rights is derived from Article 32 of the Constitution. This provides citizens the right to directly approach the SC to seek remedies against the violation of Fundamental Rights.

Judicial Review Classification

We can classify judicial review into three categories. They are:

1. 1. Reviews of legislative actions: This review implies the power to ensure that laws passed by the legislature are in compliance with the provisions of the Constitution.
   2. Review of administrative actions: This is a tool for enforcing constitutional discipline over administrative agencies while exercising their powers.
   3. Review of judicial decisions: This is seen in the Golaknath case, bank nationalisation case, Minerva Mills case, privy purse abolition case, etc.

Examples of Judicial Review

IT Act Section 66(A)

In 2015, the SC struck down Section 66(A) of the amended Information Technology Act, 2000. This provided the punishment for sending “offensive” messages through a computer or any other communication device like a mobile phone or a tablet. A conviction could fetch a maximum of three years in jail and a fine. This was repealed by the SC on the grounds that this section fell outside Article 19(2) of the Constitution, which relates to freedom of speech.

Golaknath Case (1967)

The questions, in this case, were whether amendment is a law; and whether Fundamental Rights can be amended or not. SC contented that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13, and that to amend the Fundamental rights a new Constituent Assembly would be required. Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution.

This case is also sometimes cited as an example of judicial activism.

Limitations of Judicial Review 

There are some limitations on the judiciary on exercising its power of judicial review. In fact, when the judiciary crosses its threshold and interferes in the executive’s mandate, it can be called judicial activism, which when furthered can lead to judicial overreach. Some of the limitations of judicial review are mentioned below.

• It is only permissible to the extent of finding if the procedure in reaching the decision has been correctly followed but not the decision itself.
• It is designated only to the higher courts like the Supreme Court and the High Courts.
• The judiciary cannot interfere in political questions and policy matters unless absolutely necessary.

UPSC Questions related to Judicial Review

What is the purpose of judicial review?

The purpose of judicial review is to make sure that laws passed by the legislature are not unconstitutional. It is also used to enforce constitutional discipline over administrative agencies.

Is judicial review mentioned in Indian Constitution?

The term ‘judicial review’ is not mentioned in the Constitution. However, it provides for the concept of judicial review.

What is the difference between judicial review and writ?

Writs are issued by the higher courts upon violation of Fundamental Rights, whereas judicial review is the power of the court to review and validate laws passed. 

Can high courts do judicial review?

The High Court can exercise judicial review in addition to administrative control over the lower courts within its limits.

Judicial Overreach

Judicial Overreach - Indian Polity

Judicial overreach is a term commonly used when the judiciary seems to have overstepped its mandate. As IAS aspirants, it is important to understand what the term means and how it is different from judicial activism. In this article, you can read all about judicial overreach for the IAS exam.

Judicial Overreach

There is a thin line dividing judicial activism and judicial overreach. While the former implies the use of judicial power to articulate and enforce what is beneficial for society in general, the latter is when judicial activism crosses its limit. Although this is a matter of perspective, there are many examples that are widely regarded as cases of judicial overreach in India. 

• Judicial overreach is when the judiciary starts interfering with the proper functioning of the legislative or executive organs of the government, i.e., the judiciary crosses its own function and enter the executive and legislative functions.
• Judicial overreach is considered undesirable in a democracy.
• It also goes against the principle of separation of powers.
• In defence of judicial overreach, the judiciary has always maintained that it stepped in only when there were cases of executive and legislative underreach.

Judicial Overreach Examples

Although it is a matter of perception as to when there has been a judicial overreach, there are some examples that are cited generally to showcase overreach by the judiciary. A common example is misusing the power to punish for contempt of court.

NJAC bill and the 99th constitutional amendment

The Supreme Court struck down the National Judicial Appointments Commission (NJAC) which was established through the 99th Constitutional Amendment on grounds that it was unconstitutional. This was to replace the collegiate system.

Allahabad High Court Order

In 2015, the Allahabad High Court passed an order stating that children of public functionaries/ bureaucrats in Uttar Pradesh should be enrolled only in government schools.

Proactive Censorship in case of Jolly LLB 2 (Movie)

After the movie Jolly LLB 2 was certified by the Central Board for Film Certification (CBFC), a petition was filed that claimed that this film violated Section 5B of the Cinematograph Act, 1952. Section 5B deals with the prevention of the certification of films that involve defamation or contempt of court. The court appointed a commission that looked into it, and finally the commission ordered four cuts in the film and also asked the CBFC to recertify the film. This was in violation of the Cinematograph Act, which does not give courts any power to certify or modify .

UPSC Questions related to Judicial Overreach

What is judicial adventurism?

When the judiciary oversteps its mandate and steps into the territory of the executive and the legislative, it can be termed judicial adventurism.

Is judicial review and judicial activism the same thing?

No, both are not the same. Judicial review means the judiciary should review a particular case, and decide if the law/act is consistent with the Constitution. It refers to the power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict with the Constitution. Judicial activism is one step ahead of judicial review.

What is judicial activism UPSC?

Active role of judiciary in upholding the rights of citizens and preserving the constitutional and legal system of the country is known as judicial activism. Expansion of judicial control over discretionary power is a feature of judicial activism. As with any form of activism, beauty is in the eye of the beholder here. It is a matter of perception when activism crosses over into the realm of judicial overreach.

What is an example of judicial activism?

In 2016, the SC ordered the Centre to craft a new policy to handle droughts. This is considered a case of judicial activism since it is debatable whether the court has the right to order the government to frame policies. The court took this up because of the pathetic condition of farmers in the drought-hit regions of India.

Judicial Activism [Meaning, Concept, Cases & Criticism]

Judicial Activism [Meaning, Concept, Cases & Criticism] - Indian Polity Notes

Judicial activism is a concept that originated in the US in 1947. It has been seen in India since the Emergency days. Judiciary and judicial activism are important topics to be understood by the aspirants for IAS Exam. The article will introduce you to judicial activism, its methods, significance and pros and cons. 

Judicial Activism – Know What It Means

The judiciary plays an important role in upholding and promoting the rights of citizens in a country. The active role of the judiciary in upholding the rights of citizens and preserving the constitutional and legal system of the country is known as judicial activism. This entails, sometimes overstepping into the territories of the executive. Candidates should know the judicial overreach is an aggravated version of judicial activism. 

Judicial activism is seen as a success in liberalizing access to justice and giving relief to disadvantaged groups, because of the efforts of justices V R Krishna Ayer and P N Bhagwati.

The Black’s Law Dictionary defines judicial activism as “judicial philosophy which motivates judges to depart from the traditional precedents in favour of progressive and new social policies.”

The concept of Public Interest Litigation (PIL) is always talked of when judicial activism is discussed.

Judicial Activism Methods

There are various methods of judicial activism which are followed in India. They are:

1. Judicial review (power of the judiciary to interpret the constitution and to declare any such law or order of the legislature and executive void, if it finds them in conflict with the Constitution)
2. PIL (The person filing the petition must not have any personal interest in the litigation, this petition is accepted by the court only if there is an interest of large public involved; the aggrieved party does not file the petition). 
3. Constitutional interpretation
4. Access of international statute for ensuring constitutional rights
5. Supervisory power of the higher courts on the lower courts

Significance of Judicial Activism

• It is an effective tool for upholding citizens’ rights and implementing constitutional principles when the executive and legislature fails to do so.
• Citizens have the judiciary as the last hope for protecting their rights when all other doors are closed. The Indian judiciary has been considered as the guardian and protector of the Indian Constitution. 
• There are provisions in the constitution itself for the judiciary to adopt a proactive role. Article 13 read with Articles 32 and 226 of the Constitution provides the power of judicial review to the higher judiciary to declare any executive, legislative or administrative action void if it is in contravention with the Constitution.
• According to experts, the shift from locus standi to public interest litigation made the judicial process more participatory and democratic.
• Judicial activism counters the opinion that the judiciary is a mere spectator.

Judicial Activism Examples

It all started when the Allahabad High Court rejected the candidature of Indira Gandhi in 1973. 

• In 1979, the Supreme Court of India ruled that undertrials in Bihar had already served time for more period than they would have, had they been convicted.
• Golaknath case: The questions, in this case, were whether the amendment is a law; and whether Fundamental Rights can be amended or not. SC contented that Fundamental Rights are not amenable to the Parliamentary restriction as stated in Article 13 and that to amend the Fundamental rights a new Constituent Assembly would be required. Also stated that Article 368 gives the procedure to amend the Constitution but does not confer on Parliament the power to amend the Constitution.
• Kesavananda Bharati case: This judgement defined the basic structure of the Constitution. The SC held that although no part of the Constitution, including Fundamental Rights, was beyond the Parliament’s amending power, the “basic structure of the Constitution could not be abrogated even by a constitutional amendment.” This is the basis in Indian law in which the judiciary can strike down any amendment passed by Parliament that is in conflict with the basic structure of the Constitution.
• In the 2G scam, the SC cancelled 122 telecom licenses and spectrum allocated to 8 telecom companies on the grounds that the process of allocation was flawed.
• The Supreme Court rolled out a blanket ban on firecrackers in the Delhi – NCR area with certain exceptions in 2018.
• The SC invoked terror laws against alleged money launderer Hasan Ali Khan.

Pros & Cons Of Judicial Activism

Judicial Activism in simple words means when judges interrupt their own personal feelings into a conviction or sentence, instead of upholding the existing laws. For some reason, every judicial case has a base of activism within it, so it is imperative to weigh the pros and cons to determine the aptness of the course of action being carried out. 

Pros associated with Judicial Activism India

• Judicial Activism sets out a system of balances and controls to the other branches of the government. It accentuates required innovation by way of a solution.
• In cases where the law fails to establish a balance, Judicial Activism allows judges to use their personal judgment.
• It places trust in judges and provides insights into the issues. The oath of bringing justice to the country by the Judges does not change with judicial activism. It only allows judges to do what they see fit within rationalised limits. Thus showing the instilled trust placed in the justice system and its judgments.
• Judicial Activism helps the judiciary to keep a check on the misuse of power by the state government when it interferes and harms the residents. 
• In the issue of majority, It helps address problems hastily where the legislature gets stuck in taking decisions.

Cons Associated with Judicial Activism 

• Firstly, when it surpasses its power to stop and misuse or abuse of power by the government. In a way, it limits the functioning of the government. 
• It clearly violates the limit of power set to be exercised by the constitution when it overrides any existing law. 
• The judicial opinions of the judges once taken for any case becomes the standard for ruling other cases.
• Judicial activism can harm the public at large as the judgment may be influenced by personal or selfish motives. 
• Repeated interventions of courts can diminish the faith of the people in the integrity, quality, and efficiency of the government.

Judicial Activism Criticism

Judicial activism has also faced criticism several times. In the name of judicial activism, the judiciary often mixes personal bias and opinions with the law. Another criticism is that the theory of separation of powers between the three arms of the State goes for a toss with judicial activism. Many times, the judiciary, in the name of activism, interferes in an administrative domain, and ventures into judicial adventurism/overreach. In many cases, no fundamental rights of any group are involved. In this context, judicial restraint is talked about. 

Also read: PIL Under Scrutiny: RSTV – The Big Picture

Judicial Activism VS Judicial Restraint

As mentioned earlier, Judicial Activism is the role played by the judiciary to uphold the legal and constitutional rights of the citizens. Judiciary exercises its own power to implement or strike down the laws and rules that infringes the right of the citizens or is for the good of the society at large, whatever the case may be. 

While, on the other hand, Judicial Restraint is the second face of the coin. It is the polar opposite of the activism which puts obligations on it to follow constitutional laws while implementing its duties. It encourages the judiciary to respect the laws or rules set out in the constitution. 

Judiciary has gained power with judicial activism as the judges can take up issue suo-motu wherever they think that constitutional laws are being violated, however, with judicial restraint, the same judiciary has to abide by the executive who is given the sole power to legislate for the public. 

Way forward in Judicial Activism

Judicial activism is a product fabricated solely by the judiciaries and not backed by the Constitution. When the judiciary surpasses the line of the powers set for it in the name of judicial activism, it could be rightly said that the judiciary then begins to invalidate the concept of separation of powers set out in the Constitution.

If judges can freely decide and make laws of their choices, it would not only go against the principle of separation of powers but will result in chaos and uncertainty in the law as every judge will start writing his own laws according to his fads and quirks.

Judicial exercise has to be respected to maintain a clear balance.

Making laws is the function and duty of the legislature, to fill the gap of laws and to implement them in a proper manner. So that the only work remaining for the judiciary is interpretations. Only a fine equilibrium between these government bodies can sustain the constitutional values