The Five Writs and Where They Came From
Chapter Thirty-Three
Syllabus topic 3, "Jurisdiction"
Pages 100 to 102 of 430
In one line
The five writs are five ancient English commands, each answering a different kind of wrong, and India took them and dropped the technicalities.
In the wording a student can write in an exam: the prerogative writs of habeas corpus, mandamus, prohibition, certiorari and quo warranto originated in the King's prerogative power of superintendence over the observance of law by his officers and tribunals; Articles 32(2) and 226(1) empower the Supreme Court and the High Courts to issue directions, orders or writs in the nature of those five, and the courts are bound by the broad and fundamental principles regulating them but not by English forms.
Where they came from
They were writs of the Court of King's Bench, issued in the name of the Crown, by which the King's own court called officials and inferior tribunals to account. They were called prerogative writs because they issued out of the royal prerogative rather than as of right between subject and subject, and that origin explains two features they still have: they are discretionary, and they are public law remedies not available in a purely private dispute.
The Indian adaptation
T.C. Basappa v. T. Nagappa, AIR 1954 SC 440.
Facts. An election tribunal set aside an election and the losing side sought certiorari from the High Court under Article 226. The question was on what principles an Indian court issues a writ that had come from the English prerogative jurisdiction.
Held. The writs originated in England in the King's prerogative power of superintendence over the due observance of law by his officials and tribunals. The powers under Articles 32 and 226 are very wide, and a court in India may make an order or issue a writ in the nature of certiorari in all appropriate cases and in an appropriate manner, so long as the broad and fundamental principles of English law regulating the exercise of that jurisdiction are adhered to. Certiorari lies to review judicial acts, an expression which includes quasi-judicial functions of administrative bodies, but not purely ministerial acts. In granting certiorari the superior court does not exercise appellate powers.
Why it matters here. It is the foundation. India kept the principles and discarded the forms, which is why an Indian petition asks for a writ "in the nature of" certiorari and why a petitioner who asks for the wrong writ does not lose.
The five, in one table
| Writ | Meaning | The wrong it answers | Lies against | Refused where |
|---|---|---|---|---|
| Habeas corpus | that you have the body | Unlawful detention | Anyone detaining, public or private | The detention is lawful on the return |
| Mandamus | we command | Failure to perform a public duty | A public authority | The duty is discretionary as to result, or purely contractual |
| Prohibition | to forbid | Excess of jurisdiction, while the proceeding is pending | A judicial or quasi-judicial body | The proceeding is over |
| Certiorari | to be certified | A decision made without jurisdiction, unfairly, or with an error of law on its face | A judicial or quasi-judicial body, and now administrative bodies | The error is one of fact |
| Quo warranto | by what authority | Usurpation of a public office | The holder of the office | The office is private or not substantive |
The Five Writs and Where They Came From
Four features they share
They are discretionary. Even a good case may fail on laches, alternative remedy or conduct, which is Module IV.
They are public law remedies. There must be a public element; a purely private dispute belongs to a civil court.
They are not confined to their English forms. Basappa.
They do not exhaust the jurisdiction. Both Article 32(2) and Article 226(1) say "directions or orders or writs, including", so the courts may fashion other relief, which is how compensation was awarded in Rudul Sah v. State of Bihar, AIR 1983 SC 1086.
Which writ for which wrong: a decision path
- Is a person in custody? Habeas corpus.
- Has an authority failed to do something it is legally bound to do? Mandamus.
- Is a body about to decide something it has no power to decide? Prohibition.
- Has a body already decided something it had no power to decide, or decided it unfairly or with an error of law on the face of the record? Certiorari.
- Is somebody holding a public office he is not entitled to? Quo warranto.
- None of the five fits, but a public authority has acted unlawfully? A direction or order under Article 226, which is what most petitions now ask for.
A worked example
A municipal corporation appoints as its Chief Fire Officer a man who does not hold the diploma the recruitment rules prescribe. On his first day he orders the sealing of a shop, without notice, in proceedings that were still at the show cause stage.
Quo warranto against the appointment, because a public office is held without the prescribed qualification. Certiorari to quash the sealing order, which was made without a hearing. Prohibition would have been the remedy if the shopkeeper had come to court before the order was made. Mandamus would be added if the corporation had also refused to decide his pending application for renewal of the licence. Four writs, one set of facts, one petition under Article 226.
What this does NOT mean
It does not mean the writs are separate proceedings. One petition can ask for several.
It does not mean the English limitations apply. Basappa keeps the principles, not the forms; and Indian courts have extended certiorari to administrative bodies, which English law did later.
The Five Writs and Where They Came From
It does not mean the writs are the only remedy. Injunction, declaration, damages and statutory appeals all belong to Module III.
Quick revision
Five prerogative writs from the King's Bench, issued in the King's name as part of the prerogative of superintendence: habeas corpus for unlawful detention, mandamus for failure to perform a public duty, prohibition to stop excess of jurisdiction before decision, certiorari to quash after it, quo warranto against usurpation of a public office. India issues orders in the nature of these writs, keeping the broad principles and discarding the forms, on the authority of Basappa. All are discretionary, all require a public element, and neither Article 32 nor Article 226 is confined to them.
Test yourself
1. What does "in the nature of" add? It frees an Indian court from the technicalities of the English forms while binding it to the broad and fundamental principles that regulate the writs: Basappa.
2. Which writ lies before a decision and which after? Prohibition before, certiorari after; both go to a body exceeding its jurisdiction.
3. Why does it not matter if a petitioner asks for the wrong writ? Because Articles 32(2) and 226(1) let the court issue whichever writ is appropriate, and both articles extend to directions and orders as well.
The rest of this subject
These notes are cut from the University's printed syllabus. Open the syllabus itself, or the past papers, for the same subject.