Writs and Judicial Review: Types, Scope, and Limitations

Introduction

Writs are constitutional remedies issued by courts to enforce fundamental rights. They form the bedrock of judicial review in India, empowering the Supreme Court (Article 32) and High Courts (Article 226) to protect citizens against arbitrary state action. Dr. B.R. Ambedkar called Article 32 the "heart and soul of the Constitution."

Constitutional Basis

Article 32 — Right to Constitutional Remedies

• Remedy for enforcement of Fundamental Rights (Part III)
• Can be suspended only when a Proclamation of Emergency is in operation (Article 359)
• Supreme Court can issue writs for Fundamental Right violations
• Not an absolute right — reasonable restrictions apply

Article 226 — Power of High Courts

• Wider than Article 32 — High Courts can issue writs for Fundamental Rights and other legal rights
• Territorial jurisdiction limited to the state(s) under the High Court's purview
• Discretionary remedy — High Court may refuse if alternative remedy exists

Five Types of Writs

1. Habeas Corpus ("You May Have the Body")

• Purpose: Produce a detained person before the court to examine legality of detention
• Who can file: Detainee or any person on their behalf
• Against: Both state and private individuals (unlawful detention)
• Not available: When detention is lawful, contempt of court, or before a competent court
• Key feature: Summary procedure — court decides without detailed evidence

2. Mandamus ("We Command")

• Purpose: Command a public official to perform a statutory duty
• Who can file: Person with a legal right who has sought performance of duty
• Against: Public authorities, tribunals, corporations, inferior courts
• Not available against: President/Governor, private individuals, discretionary duties, or when alternative remedy exists

3. Prohibition ("To Forbid")

• Purpose: Prevent inferior courts/tribunals from exceeding jurisdiction
• Nature: Preventive writ — issued during proceedings, not after
• Direction: From higher court to lower court/tribunal

4. Certiorari ("To Be Certified")

• Purpose: Quash an order already passed by an inferior court/tribunal
• Nature: Corrective writ — issued after a decision has been made
• Grounds: Error of law, excess of jurisdiction, violation of natural justice