Writs And Borrowed Features of Indian Constitution  

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Writs In Indian Constitution

The Constitution has constituted the Supreme Court as the guarantor and defender of the fundamental rights of the citizens. These writs are borrowed from English law where they are known as ‘prerogative writs’. The Supreme Court (under Article 32) and the high courts (under Article 226) can issue the writs of habeas corpus, mandamus, prohibition, certiorari, and quo-warranto. Any individual, whose fundamental right has been violated, can directly move the Supreme Court for remedy. (Note-the Parliament (under Article 32) can empower any other court to issue these writs.)

Points to Remember:

  • The Supreme Court can issue writs only for the enforcement of fundamental rights whereas a high court can issue writs not only for the enforcement of Fundamental Rights but also for any other purpose.
  • A remedy under Article 32 is in itself a Fundamental Right and hence, the Supreme Court may not refuse to exercise its writ jurisdiction.
  • On the other hand, a remedy under Article 226 is discretionary and hence, a high court may refuse to exercise its writ jurisdiction.

Let’s proceed to understand the meaning and scope of different kinds of writs mentioned in Articles 32 and 226 of the Constitution.

There are five types of writs under the Indian constitution.

1.Habeas Corpus
2.Mandamus
3.Certiorari
4.Prohibition
5.Quo-warranto


  1. Habeas Corpus –
  • It is a Latin term which literally means ‘to have the body of’.
  • It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. The court then examines the cause and legality of detention.
  • This writ is a bulwark of individual liberty against arbitrary detention.
  • The writ of habeas corpus can be issued against both public authorities as well as private individuals.

  1. Mandamus-
  • It literally means ‘we command’.
  • It is a command issued by the court to a public official asking him to perform the official duties that he has failed or refused to perform.
  • It can also be issued against any public body, a corporation, an inferior court, a tribunal, or a government for the same purpose.

  1. Prohibition-
  • It literally, means ‘to forbid’.
  • It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
  • The writ of prohibition can be issued only against judicial and quasi-judicial authorities.

  1. Certiorari-
  • In the literal sense, it means ‘to be certified’ or ‘to be informed’.
  • It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case.
  • It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.

Note-
Previously, the writ of certiorari could be issued only against judicial and quasi-judicial authorities and not against administrative authorities. However, in 1991, the Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting the rights of individuals.


  1. Quo-Warranto-
  • In the literal sense, it means ‘by what authority or warrants’.
  • It is issued by the court to enquire into the legality of the claim of a person to a public office.
  • It prevents illegal usurpation of public office by a person.
  • The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution.

List of Borrowed Features of Indian Constitution

Britain

•Parliamentary government
• Rule of Law
•Legislative procedure
•Single citizenship
•Cabinet system
•Prerogative writs
•Parliamentary privileges
•Bicameralism


Ireland

• Directive Principles of State Policy
• Method of Election of the president
• Members nomination to the Rajya Sabha by the President


Unites the States of America

• Impeachment of the president
• Functions of president and vice-president
• Removal of Supreme Court and High court judges
• Fundamental Rights
• Judicial review
• Independence of judiciary
• Preamble of the constitution


Canada

• Centrifugal form of federalism where the center is stronger than the states.
• Residuary powers vest with the center
• Centre appoints the Governors at the states
• Advisory jurisdiction of the supreme court


Australia

• Concept of Concurrent list
• Article 108 i.e. Joint sitting of the two houses
• Freedom of trade and commerce


USSR (Now Russia)

• Fundamental duties
• The ideals of justice (social, economic, and political), expressed in the Preamble.


France

•Concept of “Republic”
•Ideals of Liberty, Equality, and Fraternity(contained in the Preamble)


Germany

• Fundamental Rights are suspended during Emergency


South Africa

• Election of members of the Rajya Sabha
• Amendment of the Constitution


Japan

• Concept of “procedure established by Law”


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