Monday, February 24, 2014

Writs Classification in India - Indian Polity

Writs are of the following types -

a. Habeas Corpus
b. Mandamus
c. Quo Warranto
d. Prohibition
e. Certiorari

Supreme Court and High Court of India under Article 32 and Article 226 are given the right to issue writs. System of writ jurisdiction was evolved in the U.K. where at a place known as Renegade, Magna Carta was proclaimed in the year 1215. This is known as first writ of the world and from then onwards writ jurisdiction system has been used in the functioning of courts and at present there are above five types of writs in use.

Habeas Corpus - It means present the person. Whenever a person is illegally detained than the kith and kin or relative of that person may file this writ on which court gives order that the person be presented before the court. Thereafter court examines legality of detention and may set a person free. Hence this writ is known as great protector of life and liberty.

Mandamus - This is known as absolute power which is given to the executive by Judiciary. If any executive authority is indulged in any act of omission and commission then accordingly court may issue order to do or not to do a particular thing.

Quo Warranto - It means who gives you this authority. In other words, on any post of public appointment or through elections if a person is appointed illegally and starts issuing orders without legitimacy then judiciary can examine the legitimacy of the appointment and the orders that are being issued by the person appointed.

Prohibition and Certiorari - These two writs can only be issued by a superior court to a subordinate court for example - High Court to District Court. When the Supreme Court stays the proceedings or transfer it to any other court before the announcement of the judgement than it is called Prohibition and when the judgement has already been pronounced by the subordinate courts and after this a superior courts reviews the decision then it is termed as Certiorari.

Apart from writ jurisdiction many tribunals are formed in the last 2 decades . By 42nd amendment 1976, two new articles were added in the Constitution,323(a) and 323(b) on the basis of which Central Administrative Tribunal were formed such as Income Tax tribunal, Debt Recovery tribunal and the recently constituted National Green Tribunal etc. In these tribunals apart from Judicial authorities, officers of the executive are also appointed hence these are sometimes referred to as courts of the executive. These tribunals not only bring specialisation in the decisions of justice but it also accelerates the process of achieving justice. Appeals against judgements of the tribunals are first filed in the High Court and then in the Supreme Court.

Under Article 129 and 215, Supreme Court and High Courts are called Courts of Records which means that all their decisions and procedure are documented and compiled and they have the right to punish in matters related to contempt-helps exercise very strong control on Public Administration.

Under Article 143, Supreme Court has advisory jurisdiction which means that if any point of law and Constitution is not clear to the Government of India then through President legal opinion can be taken from Supreme Court. Since it is an advise, not a judgement hence it is not binding. So far 14 times advise has been sought in which all the opinions have been accepted.

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