Constitutional RemediesCourse-LL.B-II

Subject-Constitutional laws of IndiaUnit-III

1

WRIT

TYPES OF WRIT AND

DIFFERENCE BETWEEN

PUBLIC INTEREST

LITIGATION AND PRIVATE

INTEREST LITIGATION

Writ

• General Meaning - a formal order in Writingissued under seal, in the name of a sovereign,government, Court or other authority,commanding an officer or other person towhom it is issued, to do or refrain from doingsome act specified therein.

The supreme court of India is alert guardian of fundamental rights of citizens.It is supreme

custodian.Article 32 of constitution provides for writs for the enforcement of fundamental

rights.Similar jurisdiction is available to high court under Article 22o6. actually , the jurisdiction of high court to issue writ is more wide than that of

supreme court . High court can issue writ for 'other purposes' alongwith fundamental rights ,

whereas supreme court can only issue writ for the enforcement of fundamental rights.

TYPES OF WRITS

• As per Article 32(2) and Article 226(1) of the constitution,the supreme court and high court can issue five types of writs-

• 1.Habeas corpus

• 2.Mandamus

• 3.Prohibition

• 4.Certiorari

• 5.Quo-Warrant

Writ of Habeas corpus

• Habeas Corpus means, “you may have the body."

• A person, when arrested, can move the Court for theissue of Habeas Corpus. It is an order by a Court tothe detaining authority to produce the arrestedperson before it so that it may examine whether theperson has been detained lawfully or otherwise. Ifthe Court is convinced that the person is illegallydetained, it can issue orders for his release.

Who can apply?

• General rule is that an application can bemade by a person who is illegally detained.But in certain cases, an application of habeascorpus can be made by any person on behalfof the prisoner, i.e., a friend or a relative.

“SUNIL BATRA V. DELHI ADMINISTRATION’’(AIR 1980

SC 1579)

• The Supreme Court enlarged the scope ofhabeas corpus, making available thefundamental rights of the prisoners .

“P.S SADASHIV SWAMI V.STATE OF TAMIL NADU”(AIR 1974 SC 2271) -

• The Supreme Court gave the meaning of the writ Habeas Corpus in this case-

• 1.Court can ask the causes of detention of the detained person.

• 2.Can order to produce the detained person before the court.

• 3.If the detained person is illegally detained , the court will order that he be released.

Writ of Mandamus

Writ of Mandamus• Mandamus is a Latin word, which means "We

Command".• Mandamus is an order from a superior court to a

lower court or tribunal or public authority to performan act, which falls within its duty.

• Simply, it is a writ issued to a public official to do athing which is a part of his official duty, but, which,he has failed to do, so far. This writ cannot beclaimed as a matter of right. It is the discretionarypower of a court to issue such writs.

“MANI SHOBHREJ JAIN V. STATE OF HARYANA” [(1977)1 SCC 486]-

• Requirement of mandamus writ are described in this case.According to it,following condition for issue of mandamus are required to be fulfilled-

• Existence of legal right,• Such legal right shall be enforceable by court,• The enforcement of such right imposes

responsibility of performance of any duty over any person , public authority, corporation or government.

• Such duty is of public nature.

Writ of Prohibition• 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 triesto transgress the limits or powers vested in it.

• It is a writ issued by a superior court to lower courtor a tribunal forbidding it to perform an act outsideits jurisdiction. After the issue of this writ,proceedings in the lower court etc. come to a stop.

“GOVIND MENON V. UNION OF INDIA"(AIR 1967 SC 1893)

• It was held that prohibition writ may be issued under the followiing conditions-

• Where there is excess of jurisdiction.

• Where there is absence of jurisdiction.

Writ of Certiorari

• Literally, Certiorari means to be certified.

• The writ of certiorari is issued by the SupremeCourt to some inferior court or tribunal totransfer the matter to it or to some othersuperior authority for proper consideration.

“STATE OF UP V. MOHAMMED NOOR "(AIR 1958 SC 86)

• Supreme court said that certiorarri is mainly issued to reform the mistakes related to jurisdiction of subordinate courts or quasi-judicial bodies.In other words,it can be said that the writ is issued when the subordinate court or tribunal acts in absence of jurisdiction or beyond jurisdiction or fails to use its jurisdiction.

“HARI VISHNU KAMATH V.AHMED

ISHAQ”(AIR 1955 SC 233)

• The writ is issued for correcting an error of lawapparent on the face of records. It cannot beissued to correct an error of fact.

Quo-Warrant

• The word Quo-Warrant literally means “on whatauthority one is holding the public office"

• It is a writ issued with a view to restraining a personfrom acting in a public office to which he is notentitled.

Example

• For example, a person of 62 years has beenappointed to fill a public office whereas theretirement age is 60 years. Now, theappropriate High Court has a right to issue aWrit of quo-warranto against the person anddeclare the office vacant.

''UNIVERSITY OF MYSORE V. GOVIND RAO'' (AIR 1965 SC 491)

• In this case requiremennts of quo warrant writ are described.this writ can be issued in the following conditions.

• When disputed post is public post.

• If the post is held by the person without legal authority.

•DIFFERENCE BETWEEN PUBLIC INTEREST LITIGATION AND PRIVATE INTEREST LITIGATION

PUBLIC INTEREST LITIGATION PRIVATE INTEREST LITIGATION

It is attached to public interest at large. It is attached to interest of specific person

The main aim is to protect public interest. The main aim is to protect private interest.

The right and remedy does not depend upon each other because remedy seeking person does not fight for his own interest.

The right and remedy depends on each other as the person suing have interest in litigation for the enforcement of remedies.

Rule of locus standi is relaxed Rule of locus standi is followed.

It is prospective. It is retrospective.

The process is very simple, easy and cheap. The process is complicated , expensive and delaying.

The evidence is narrow and free from technicalities.

The evidence is strictly examined under it.

Here the case can not be withdrawn. The writ can be withdrawn.

The subject matter is generally of social and national interest.

The subject matter is of private right.

The work and view of judges is very important and related to national interest and liability.

The work of judges is limited to examination of evidences.

PUBLIC INTEREST LITIGATION PRIVATE INTEREST LITIGATION

The applicant has not his own interest and he does not struggles for himself.

Personal interest struggle for its own benefit.

It can be presented by anybody whether he has suffered or not . Other’s can also file writ whether they have interest in injured part or not.

The litigation is filed by interested or aggrieved party only.

Thank you

References

• 1.https://lh5.ggpht.com/HLnLMmZqbfbQirTFZ3eQjqzDnvnSbXYOs3zoqHvKuhXL25APHW0nFkWo4zFQGqMNbvQ7=s153

• http://www.slideshare.net/