The Five Writs

In one line

Articles 32(2) and 226 name habeas corpus, mandamus, prohibition, quo warranto and certiorari, and the words directions, orders or writs, including writs in the nature of mean the list is neither exhaustive nor technical.

Why they are in the Constitution

In England the writs were prerogative remedies with technical requirements developed over centuries, and their availability depended on rules about the character of the body and the nature of the function.

Naming them in the Constitution does three things.

It removes the need for enabling legislation. The power exists in the text.

It frees the court from the English technicalities, because the words are in the nature of and not the writs themselves.

And it makes the list non-exhaustive, because the operative words are directions, orders or writs, including the five. Compensation, continuing mandamus and guidelines all issue under the wider words.

The five

Habeas corpus

Have the body. A direction to produce a person detained and to justify the detention.

Against whom. Any person or authority holding another, including a private person, so it is the one writ that runs horizontally.

When. Where detention is without legal authority, or the authority is invalid, or the procedure was not followed.

Its features. It may be sought by the detainee or by anyone on their behalf, including a relative, a friend or a stranger acting bona fide. It is heard urgently. The burden lies on the detaining authority to justify. And the legality is judged at the time of the return, so an initially unlawful detention may be cured by a valid order, which is a real limitation.

[Habeas Corpus, and Its Place in Human Rights Enforcement] takes it in full, because it is the writ this paper depends on.

Mandamus

We command. A direction to a public authority to perform a public duty it has failed to perform.

Requirements. A legal right in the petitioner, a corresponding public duty in the respondent, a demand and a refusal, and no equally efficacious alternative remedy.

It does not lie to enforce a purely contractual obligation, against a private person with no public duty, or to direct an authority how to exercise a genuine discretion, though it lies to require the discretion to be exercised at all and exercised lawfully.

It is the workhorse of this module, because most human rights failures are failures to perform an existing duty.

Prohibition

A direction to an inferior court or tribunal to stop proceedings that are without jurisdiction or in excess of it.

It is preventive, issuing while the proceedings are pending.

It lies only against a body exercising judicial or quasi-judicial functions.

Certiorari

A direction to bring up and quash a decision of an inferior court or tribunal.