On the other side, There has been tremendous expansion in the administrative process. This is natural in a welfare state as a welfare state is basically an administrative state. Introduction- The first question arise in our mind while reading the topic is..
Actually, What Is Writ? The answer is here- A Writ is a formal written order issued by a government entity in the name of the sovereign power. In most cases, this government entity is a court. In modern democratic countries, the administrative authorities are vested with vast discretionary powers. The exercise of those powers often becomes subjective in the absence of specific guidelines etc.
The judicial review of administrative actions in the form of writ jurisdiction is to ensure that the decisions taken by the authorities are legal, rational, proper, just, fair and reasonable. Safeguard of fundamental rights and assurance of natural justice are the most important components of writ jurisdictions.
The origin of writs can be drawn from the English Judicial System and were created with the development of English folk courts to the common law courts. Writs were issued on a petition presented to the king in council and were considered as a royal order. Writs were a written order issued in the name of the name of the king. However, with different segments writs took various forms and names.
The writs were issued by the crown and initially only for the interest of the crown later on it became available for ordinary citizens also. A prescribed fee was charged for it and the filling of these writs were known as Purchase of a Writ. The origin of writs in India goes back to the Regulating Act, under which Supreme Court was established at Calcutta. The charter also established other High Courts and also gave them power to issue writs as successor to Supreme Court.
The writ jurisdiction of these courts was limited to their original civil jurisdiction which they enjoyed under Section 45 of the Specific Relief Act, Writs are meant as prerogative remedies. The writ jurisdictions exercised by the Supreme Court under article 32 and by the high courts under article , for the enforcement of fundamental rights are mandatory and not discretionary.
But the writ jurisdiction of high courts for 'any other purpose' is discretionary. In that sense the writ jurisdiction of high courts are of a very intrinsic nature. Hence high courts have the great responsibility of exercising this jurisdiction strictly in accordance with judicial considerations and well established principles.
When ordinary legal remedies seem inadequate, in exceptional cases, writs are applied. The meaning of the Latin phrase Habeas Corpus is 'have the body'. According to Article 21, "no person shall be deprived of his life or personal liberty except according to the procedure established by law". The writ of Habeas corpus is in the nature of an order directing a person who has detained another, to produce the latter before the court in order to examine the legality of the detention and to set him free if there is no legal justification for the detention.
It is a process by which an individual who has been deprived of his personal liberty can test the validity of the act before a higher court.
The objective of the writ of habeas corpus is to provide for a speedy judicial review of alleged unlawful restraint on liberty. It aims not at the punishment of the wrongdoer but to resume the release of the retinue. The writ of habeas corpus enables the immediate determination of the right of the appellant's freedom. In the writs of habeas corpus, the merits of the case or the moral justification for the imprisonment or detention are irrelevant.
Jabalpur v. If there is no legal justification for that detention, then the party is ordered to be released. The writ of Certiorari is generally issued against authorities exercising quasi-judicial functions. These were written decrees that consisted of administrative commands, largely authenticated by a royal seal at the bottom of the document.
Upon issue, writs advised courts of land-granting conveyances. In some cases, they were also used to carry out judicial orders. While many writs were deemed open and read aloud in public, others were meant merely for the party or parties named. Writs were developed over time as a way for authorities—legal and otherwise—to direct others to perform specific actions. This means that a modern-day writ provides an order from a higher to a lower court, from a court to an individual or other entity, or from a government agency to another party.
The writ may command the named party to take some form of action or it may prevent that party from continuing to act or operate in a certain way. Present-day courts also use writs as a way to give extraordinary relief or to provide rights to appeal court decisions. In other cases, they give authorities such as sheriffs the right to make property seizures. Any direct order that is issued under authority is a writ.
Warrants and subpoenas are two common types of writs. A warrant is a writ issued by a judge or magistrate that allows a sheriff, constable, or police officer to search a person or property—commonly known as a search warrant. Other warrants include an arrest warrant for an individual or individuals and an execution warrant allowing the execution of an individual who has been sentenced to death in a trial court.
A subpoena is a writ that compels a witness to testify or compels an individual or organization to produce evidence. Certain writs were eliminated because the relief that used to be available only through a writ is now accessible through a lawsuit or a motion in a civil action. You may find relief by filing a lawsuit or a motion in civil court when getting a writ in your favor isn't an option.
A writ of execution is a court order that allows a piece of property to be transferred from one party to another. The plaintiff or injured party must commence legal action against the defendant in order to get this court order. Once the writ is drafted, the property is seized by a court official or member of law enforcement.
These writs are issued in different circumstances and have different implications. They are:. This writ is used to release a person who has been unlawfully detained or imprisoned.
By virtue of this writ, the Court directs the person so detained to be brought before it to examine the legality of his detention.
If the Court concludes that the detention was unlawful, then it directs the person to be released immediately. Circumstances of unlawful detention are:. This writ ensures swift judicial review of the alleged unlawful detention of the prisoner and immediate determination of his right to freedom. However, Habeas corpus cannot be granted where a person has been arrested under an order from a competent court and when prima facie the order does not appear to be wholly illegal or without jurisdiction.
This writ can be filed by the detained person himself or his relatives or friends on his behalf. It can be issued against both public authorities and individuals. In Sunil Batra v. Delhi Administration AIR case, an application was made to the Supreme Court through a letter written by a co-convict on the maltreatment of the prisoners.
This letter was taken up by the Supreme Court and it issued the writ of habeas corpus stating that this writ can not only be used against illegal arrest of the prisoner but also for his protection against any maltreatment or inhuman behaviour by the detaining authorities.
In Kanu Sanyal v. It stated that this writ is a procedural writ and not a substantive writ. This case dealt with the nature and scope of the writ of habeas corpus. It is issued by the Court to direct a public authority to perform the legal duties which it has not or refused to perform.
It can be issued by the Court against a public official, public corporation, tribunal, inferior court or the government. It cannot be issued against a private individual or body, the President or Governors of States or against a working Chief Justices. Further, it cannot be issued in the following circumstances:. The writ of mandamus is issued for keeping the public authorities within their jurisdiction while exercising public functions.
The object of mandamus is the prevention of disorder emanating from failure of justice that is required to be granted in all cases where there is no specific remedy established in law. It cannot be issued when the government or public official has no duty to perform under the law. A writ petition seeking mandamus must be filed by a person in good faith and who has an interest in the performance of the duty by the public authority. While the Supreme Court can issue the writ of habeas corpus only against the State in case of violation of Fundamental Rights whereas the high court can issue it also against private individuals illegally or arbitrarily detaining any other person.
Writ of habeas corpus can be filed by any person on behalf of the person detained or by the detained person himself. In Sunil Batra ll vs Delhi admn. The court employed this writ for the neglect of State penal facilities.
The writ was also issued when a ban was imposed on the law students to conduct interviews with prison mates to provide them legal relief. It is a judicial remedy in the form of an order to act legally and to abstain from perpetrating an unlawful act.
Where A has a legal right which cast certain legal obligation on B, A can seek a writ of mandamus directing B to perform its legal duty. This writ of command is issued by the Supreme Court or High Court when any Government, court, corporation or tribunal or public authority has to perform a public or statutory duty but fails to do so.
0コメント