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thus
HC
can
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refuse
to
exercise
its
writ
jurisdiction.
WRITS
HIGH COURT
SUPREME COURT
Under
Article 226
of
Constitutio
n of India
Habeas Corpus
Under
Article 32
of
Constitutio
n of India
Certiorari
Prohibition
Quo Warranto
Mandamus
WHO CAN FILE AN APPLICATIONAn application for habeas corpus can be made by any person on behalf of the
prisoner as well as by the prisoner himself, subject to the rules and conditions
framed by various High Courts. The writ of habeas corpus is an effective
means of immediate release from unlawful detention whether in prison or
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It is a writ in the nature of calling upon the person who has detained another
to produce the latter before the Court in order to let the Court know the
grounds on which he has been confined and to set him free if there is no legal
justification for the imprisonment. The writ will not lie in the following
circumstances :
1. If it appears on the face of the record that the detention of the person
concerned is in execution of a sentence on indictment of a criminal charge.
Even if in such cases it is open to investigate the jurisdiction of the Court
which convicted the petitioner, but the mere jurisdiction would not justify
interference by habeas corpus. In Bohar Singh v. State of Punjab,3 the Court
held that a convict undergoing imprisonment under the judgment of a criminal
Court which has become final, cannot prefer and maintain a writ of habeas
corpus to assail his detention. A writ of habeas corpus would not lie against a
considered judicial judgment of the High Court on the alleged tenuous ground
of an infraction of Article 21 of the Constitution. No writ would lie against the
judicial process established by law.
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made by the time of the return to the writ, the Court cannot release the detenu
whatever might have been the defect of the order in pursuance of which he was
arrested or initially detained.
4. Under Article 226, a petition for habeas corpus would lie not only where he
is detained by an order of the State Government but also when he is detained
by another private individual. In Vidya Varma v. Shiva Narain,7 the Supreme
Court stated that no petition would lie to Supreme Court under, Article 32 in
the latter case, because Article 32 does not apply unless a "fundamental right"
has been infringed.
The writ of habeas corpus is issued by a High Court only when the person or
authority against whom the writ is sought is within the territorial jurisdiction
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of the High Court, on the date of the application as well as at the time when
the writ is sought to be issued.
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from jail or by some other person on his behalf inspired by social objectives can
be taken as a writ-petition.
In Sunil Batra v. Delhi Administration II11 the Court initiated the proceedings on
a letter by a co-convict, alleging inhuman torture to his fellow convict. Krishna
lyer, J. treated the letter as a petition for habeas corpus. He dwelt upon
American cases where the writ of habeas corpus has been issued for the
neglect of state penal facilities like over-crowding, in sanitary facilities,
brutalities, constant fear of violence, lack of adequate medical facilities,
censorship of mails, inhuman isolation, segregation, inadequate rehabilitative
or educational opportunities.
The law before the liberalisation of locus standi concept in relation to the writ
of habeas corpus has characteristically been elucidated in an early case of In re
Hardial Singh12 In this case, fifteen persons were arrested under Section 3 of
the Punjab Public Safety Act, 1947, for being members of the Rastriya Swayam
Sewak Sangh. One Jagdish Mittar of Simla applied for release, of all such
persons under Section 491, Criminal Procedure Code of 1898. The petitioner in
the present case is a resident of Simla. He does not seem even to have been
aware of their movements. I wish some rules should be framed by the
authorities concerned limiting the right to move petitions under Section 491,
Cr. P.C., 1898, to the detenues, their relations and the most of their friends, I
11 AIR 1980 SC 1579.
12 AIR 1951 Punj 216.
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understand such is the practice of England and it will save a lot of judicial time
and a good deal of unnecessary embarrassment to the authorities if a similar
practice is introduced in this country. To allow irresponsible people to move
petitions of this nature on behalf of the persons about whose affairs they have
really no knowledge merely on account of the existence between them of any
political or other affinity seems to me prejudicial to the proper and efficient
administration of justice and otherwise undesirable."
(3) A person has no right to present successive applications for habeas corpus
to different Judges of the same court.13
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(4) All the formalities to arrest and detention have not been complied with and
the order of arrest has been made mala fide or for collateral purpose. When a
Magistrate did not report the arrest to the Government of the Province as was
required under Section 3(2) of the Punjab Safety Act, 1947, the detention was
held illegal.16 If there is an intentional delay in communicating the order with a
view
to
preventing
the
detaining
persons
from
getting
redress
from
Whether mala fide could be inferred from long delay in communicating the
detention order to Government was discussed by Subba Rao, J., in
Venkatramani v. Commr. of Police Madras.17 He said : "If a person is detained
and with a view to prevent him from taking step to get redress from
Government
if
the
appropriate
authority
intentionally
delays
the
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arrest of any person bearing the name. Hence complete description of the
detenu should be given in the order of detention.
(6) It must be established that the detaining authority was not satisfied that
the detenu was committing prejudicial acts, etc. It may be noted in this
connection that the sufficiency of the material on which the satisfaction is
based cannot be subject of scrutiny by the court.
In Icchu Devi v. Union of India,19 the Court emphasized upon the need of serving
on the detenu copies of several documents on whom the authority had relied in
grounds of detention. The Court .pointed out that in case of an application for
a writ of habeas corpus, it does not. as a matter of practice, follow strict rules
of pleading nor does it place undue emphasis on the question on whom the
burden of proof lies. Even a postcard by a detenu from jail is sufficient to
activise this Court into examining the legality of detention.
The Court has consistently shown great anxiety for personal liberty and refused
to dismiss a petition merely on the ground that it does not disclose a prima
facie case invalidating the order of detention. It has adopted the liberal attitude
in view of the peculiar socio-economic conditions prevailing in the country.
People in general are poor, illiterate and lack financial resources. It would
18 18 Bom 636.
19 AIR 1980 SC 1983
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therefore be not desirable to insist that the petitioner should set out clearly and
specifically the grounds on which he challenges the order of detention.
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 India20 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. Next by the forty-fourth amendment in 1978, the right to
personal liberty under Article 21 cannot be suspended even during emergency.
Hence the writ of habeas corpus will be available to the people against any
wrongful detention.
Habeas corpus cannot be used as a device to evade the ordinary law for the
review, revision or appeal of a judgment under which a person is imprisoned.
"An involuntary and illegal confinement of the person in praesenti is the
particular concern of habeas corpus." For the issue of habeas corpus, the
wrongful restraint must exist at the time when the Court has to make the rule
absolute for its issue. If at the time when the rule for the writ is heard and
decided, detention begun originally under an invalid order, has been put in by a
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proper and valid authority even after the presentation of habeas corpus
petition it will be refused.21The application should be in proper manner.22
HABEAS CORPUS
Introduction - Habeas corpus is a Latin term which literally means " have the
body", Have his body, Bring the body. The concept of writ of habeas corpus
has originated from England. This is a writ or legal action which can be used
by a person to seek relief from illegal detention.
PURPOSE
The writ is a direction of the Court to a person who is detaining another,
commanding him to bring the body of the person in his custody at a specified
time to a specified place for a specified purpose. Examples are as follows :(a) Testing the validity of detention under preventive detention laws;
(b) Securing the custody of a person alleged to be lunatic;
(c) Securing the custody of a minor;
(d) Securing the custody of a marriage partner;
21 Naranjan Singh v. State of Punjab, AIR 1952 SC 106
22 Ram Narayan Singh v. State of Punjab, AIR 1953 SC 277
23 Gopalji v. Shree Chand, AIR 1955 All 28.
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2. Writ of Mandamus
Introduction - The Latin word 'mandamus' means 'we command'. The writ of
'mandamus' is an order of the High Court or the Supreme Court commanding
a person or a body to do its duty. Usually, it is an order directing the
performance of ministerial acts. A ministerial act is one which a person or
body is obliged by law to perform under given circumstances.
When it can be issued :1.
2.
3.
4.
KINDS OF WRIT OF MANDAMUS :Alternative Mandamus: A mandamus issued upon the first application for
relief, commanding the defendant either to perform the act demanded or to
appear before the court at a specified time to show cause for not performing it.
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interest
asking the
tasks expeditiously
for
an
officer
or
unstipulated
the
authority
period
of
to
time
perform
its
for preventing
miscarriage of justice.
Example - A licensing officer is obliged to issue a license to an applicant if the
latter fulfills all the conditions laid down for the issue of such license.
Similarly, an appointing authority should issue a letter of appointment to a
candidate if all the formalities of selection are over and if the candidate is
declared fit for the appointment. But despite the fulfillment of such conditions,
if the officer or the authority concerned refuses or fails to issue the
appointment letter, the aggrieved person has a right to seek the remedy
through a writ of 'mandamus'.
CASE LAW :- VISHAKA V STAATE OF RAJASTHANFACTS - 1. That the immediate CAUSE for the filing of this writ petition is an
incident of alleged brutal gang rape of a social worker in a village of
Rajasthan.
2. That The incident reveals the hazards to which a working woman may be
exposed and the depravity to which sexual harassment can degenerate; and
the urgency for safeguards by an alternative mechanism in the absence of
legislative measures.
3. That In the absence of legislative measures, the need is to find an effective
alternative mechanism to fulfil this felt and urgent social need.
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3. Writ of Certiorari
Introduction
court to the lower court either to transfer the case pending with the latter to
itself or to squash the order already passed by an inferior court, tribunal or
quasi judicial authority. The conditions necessary for the issue of writ of
certiorari.
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the
question
with
duty
to
act
judicially.
b. Such a court, tribunal or officer must have passed order acting without
jurisdiction or in excess of the judicial authority vested by law in such court,
tribunal or officer.
c. 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.
When it can be filed1. Error of jurisdiction.
a. Lack of jurisdiction.
b. Excess of jurisdiction.
2. Abuse of jurisdiction.
3. Jurisdictional facts.
4. Error of law apperant on the face of record.
5. Violation of the principles of Natural justice.
6. Order issued by authority is fraudulent
4. Writ of Prohibition
Introduction - 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.
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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.
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Under Article 32, the Supreme Court may issue a writ against any person or
government within the territory of India. Where the infringement of a
Fundamental Right has been established, the Supreme Court cannot refuse
relief on the ground that the aggrieved person may have remedy before some
other court or under the ordinary law. The relief can also not be denied on the
ground that the disputed facts have to be investigated or some evidence has to
be collected. Even if an aggrieved person has not asked for a particular writ,
the Supreme Court, after considering the facts and circumstances, may grant
the appropriate writ and may even modify it to suit the exigencies of the case.
Normally, only the aggrieved person is allowed to move the Court. But it has
been held by the Supreme Court that in social or public interest matters, any
one may move the Court. Any piece of legislation or law, which tends to
interfere with the power of Supreme Court under Article 32 shall be declared as
void. Hence, there is no way that the legislative or the executive authority can
by-pass the power and responsibility entrusted to the Supreme Court by the
Constitution. In a famous case titled as "Gopalan Vs State of Madras", the
Supreme Court declared Section 14 of the Preventive Detention Act of 1950 as
void, because as per the Supreme Court, the said Section acted as an iron
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curtain around the acts of the executive authority making the order of
preventive detention.
WRITS
2. The 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 perform an act, which falls within its duty. It is
issued to secure the performance of public duties and to enforce private rights
withheld by the public authorities. Simply, it is a writ issued to a public official
to do a thing which is a part of his official duty, but, which, he has failed to do,
so far. This writ cannot be claimed as a matter of right. It is the discretionary
power of a court to issue such writs.
3. The Writ of Quo-Warranto : 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.
4. The 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 tries to transgress the limits or powers vested in it. It is a writ issued by a
superior court to lower court or a tribunal forbidding it to perform an act
outside its jurisdiction. After the issue of this writ, proceedings in the lower
court etc. come to a stop.
5. The Writ of Certiorari : Literally, Certiorari means to be certified. The writ of
certiorari is issued by the Supreme Court to some inferior court or tribunal to
transfer the matter to it or to some other superior authority for proper
consideration. Writs of Prohibition and Certiorari The writ of prohibition is
issued by any High Court or the Supreme Court to any inferior court,
prohibiting the latter to continue proceedings in a particular case, where it has
no legal jurisdiction of trial. While the writ of mandamus commands doing of
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