Constitutional Law
What are writs, and when can you file one?
Where the power comes from
A writ is a direction issued by a constitutional court to enforce a right against the State or a public authority. The Supreme Court issues writs under Article 32 of the Constitution, and the High Courts under Article 226. There is a difference of width between the two: a petition under Article 32 lies only for the enforcement of a fundamental right, while Article 226 is wider, allowing a High Court to issue a writ both for a fundamental right and for any other legal right.
The five writs
Habeas corpus tests the legality of a detention and requires the person detained to be produced before the court. Mandamus commands a public authority to perform a public duty it has failed to perform. Prohibition stops a lower court or tribunal from exceeding its jurisdiction while a matter is still pending before it. Certiorari quashes an order already passed by a lower court or tribunal that acted without jurisdiction or in breach of the law. Quo warranto questions the authority of a person holding a public office to hold it.
When a writ is the right remedy
A writ petition is generally suited to a clear question of law or a plain violation of a right by the State, where the facts are not seriously in dispute. Courts usually expect a person to use an effective alternative remedy first, and to come without undue delay. Where those conditions are met, the writ jurisdiction is a quick and powerful route to relief; where the dispute turns on contested facts, an ordinary suit or the statutory remedy is often the better course.
This note is general information on the law as at the date shown, not legal advice on any specific matter. The law changes; for advice on your facts, please speak to the firm.
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