The Constitution of India assured greater protection of individuals rights and afforded larger freedom to the court to look into executive failures. The judiciary has provided various measures in preserving the liberty and freedom of the people of the country Each citizen of India has inherent right to challenge the constitutionality of any executive enactment restrains him from enjoying his fundamental rights. By judicial interpretations the fundamental rights, distribution of executive powers and other constitutional restrictions and limitations were provided a new meaning. The fundamental object of judicial review is to infuse life in the dry and abstract postulates of the constitution enabling it to be a living organism so as to satisfy the needs of the time.
Articles 32 and 226 of the Indian Constitution makes provisions for writs in the country. Under clause (2) of Article 32 the Supreme Court is empowered to issue appropriate direction, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition quo warranto and certiorari for the enforcement of any fundamental rights guaranteed by Art III of the constitution. By this article the Supreme Court has been constituted as a protector and guarantor of the fundamental rights and once a citizen has shown that there is infringement of his fundamental right the court cannot refuse to entertain petitions seeking enforcement of fundamental rights. Article 226(1) empowers every High Court, notwithstanding anything in Article 32, throughout the territories in relation to which it exercises jurisdiction to issue any person or authority, including appropriate cases any government, within those territories directions, orders or writs including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari for the enforcement of Fundamental Rights or for any other purpose.
I. Habeas Corpus
The expression “Habeas Corpus” is a Latin term which means ‘to have the body’. If a person is detained unlawfully, his relatives or friends or any person can move the Court by filing an application under Article 226 in High Court or under Article 32 in Supreme Court for the writ of Habeas Corpus.
The main objective of this writ is to provide immediate remedy to person unlawfully detained, whether in prison or private custody. The detention becomes unlawful if a person who is arrested is not produced before the magistrate within 24 hours of his arrest. Also the law under which the person is detained must be lawful, if the law itself is unlawful then the detention is also unlawful.
The scope of the writ of habeas corpus has considerably increased by virtue of the decision of the Supreme Court in Maneka Gandhi v. Union of India and also by the adoption of forty-fourth amendment to the Constitution. Since the judicial interpretation of Article 21 has extended the magnitude of the concept of the personal liberty and the Court introduced the element -of fairness and justness in the ‘procedure established by law’, now a writ of habeas corpus would lie if the law depriving a person of his personal liberty is not fair, just and equitable.
The word “mandamus” means “the order”. The writ of mandamus is thus an order by a superior court commanding a person or a public authority (including the Government and public corporation) to do or forbear to do something in the; nature of public duty or in certain cases of a statutory duty.
This writ can be issued when the government denies to itself a jurisdiction which it undoubtedly has under the law} or where an authority vested with a power improperly refuses to exercise it. The purpose of this writ is to restrict the public authorities to work within their powers.
Conditions for the issue of writ of mandamus:-
- The Petitioner must have legal rights .
- A Legal duty must have been imposed on the authority and the performance of the duty should be necessary. 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.
- 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.
The expression ‘prohibition’ literally means ‘to prohibit’. The Writ of Prohibition is a Judicial order issued by the Supreme Court or a High Court to an inferior Court or quasi-judicial body forbidding the latter to continue proceedings therein in excess of its jurisdiction or to usurp a jurisdiction with which it is not legally vested. Thus, object of the writ is to compel inferior courts to keep themselves within the limits of their jurisdiction.
Earlier, this writ was used to issue only to judicial and quasi-judicial bodies. But such requirement is no longer valid. With the expanding dimensions of natural justice and the requirement of fairness in administrative functions, the rigidity about prohibition has been liberalized. This writ can now lie to anybody, irrespective of the nature of function exercised by it, if any of the grounds on which the writ is issued is present.
Certiorari is a writ issued from a superior court to an inferior court or tribunal commanding the latter to send up the record of a particular case. 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. In other words, while the prohibition is available at the earlier stage, Certiorari is available on similar grounds at a later stage.
The word Quo-Warranto literally means “by what warrants?” It is a writ issued with a view to restraining a person from acting in a public office to which he is not entitled. The Writ of quo-warranto is used to prevent illegal assumption of any public office or usurpation of any public office by anybody. For example, a person of 62 years has been appointed to fill a public office whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a Writ of quo-warranto against the person and declare the office vacant.
Scope of Article 32
Article 32 provides a quick and immediate remedy for the enforcement of Fundamental Rights. Any person may for the violation of any of his Fundamental Rights by an administrative action can go straight to the Supreme Court, without being required to undergo the dilatory proceedings from the lower to a higher court as one has to do in any ordinary litigation.
The Supreme Court has thus been constituted, as the protector and guarantor of Fundamental Rights. Article 32 is itself of a Fundamental Rights and cannot therefore , be diluted or whittled down by legislation, and can be invoked over when a law declares a particular administrative action as final.
Scope of Article 226 and 227
Writs under Article 226 have to be issued in grave cases where the subordinate tribunal or bodies or officers act wholly without jurisdiction, or in excess of it, or in violation of the principles of natural justice or refuse to exercise a jurisdiction vested in them, or there is an error apparent on the face of the record and such act, omission, error, or excess has resulted in manifest injustice. The High Court in its Writ jurisdiction cannot act as a Court of Appeal against the orders of the State Governments or Union or other authorities.
Difference Between Article 32 and Article 226
- The rights guaranteed by Article 32 can only be exercised for the enforcement of fundamental rights only whereas the rights conferred under Article 226 of the constitution can be exercised not only for the enforcement of fundamental rights but for ‘any other purpose’. The expression ‘and for any other purpose’ in Article 226 will include the enforcement of ordinary legal right which do not amount to fundamental rights. Thus the power under Article 226 are wider than those under Article 32.
- The order under Article 32 will Supersede the order passed by the High Court under Article 226 of the Constitution previously.
An application under Article 226 may always be made first to Supreme Court since Article 32 is itself a Fundamental Right. It is Substantive right not a mere procedural right. There is no need to resort to High Court Before Approaching to the Supreme Court under Article 32.
In the case of Basheshwar Nath v. Commissioner, Income Tax, the court held that, “A large majority of people are socially poor educationally backward and politically yet not conscious of their rights, cannot be pitted against the state or the institution or they cannot be put on equal status with the state or large organisations. The people are requires to be protected from themselves. It is therefore the duty of the court to protect their rights and interests. Fundamental rights are therefore transcendental in nature and created and enacted in national and public interest and therefore they cannot be waived.”
In 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 merely 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.
In Collector of Central Excise v. Dunlop India Ltd, the Supreme Court held that Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as for instance where the vires of the statute is in question or where private or public wrongs are inextricably linked and the prevention of public injury and the vindication of public justice require it, that recourse may be had to Article 226 of the Constitution. A writ will not ordinarily be issued by the Court where the impugned order, not patently erroneous, is made by an authority within his jurisdiction.
 AIR 1978 SC 597
 G.Veerappa Pillai vs. Raman and Raman Ltd.), AIR 1952 SC 192
 Jeshingbhai Ishwarlal vs Emperor, Air 1950 Bom 363
  1 S.C.R. 448
 AIR 1959 SC 276
 AIR 1985 SC 330
Anshuman Goyal, 5th Year, BBA LLB(Hons.), School of Law, KIIT University