Writs and Terms Related to Doctrines


WRITS
Introduction

Under Article 32, the Supreme Court can issue the following five writs for restoration of fundamental rights:
Habeas Corpus: It literally means “To have a body” i.e. to be produced in person before the court. This kind of writ is issued to protect the personal liberty of an individual against the arbitrary action of both the State and Private individuals. The aggrieved person can even claim for compensation against state action.
Mandamus: It literally means “Command”. This kind of writ is issued against a public authority or a public officer and interior courts for the purpose of enforcing rights only. It is the command by the Court to the public person or body, to do his or its duty. However, this writ cannot be issued against the President and the Governors. Also, private rights cannot be enforced by this writ.
Prohibition: This kind of writ is issued by the higher courts to the lower courts or quasi-judicial bodies (tribunals etc.) when the latter exceeds their jurisdiction. The objective is to keep the inferior courts or the quasi-judicial bodies within the limits of their respective jurisdiction.

The difference between ‘Mandamus’ and ‘Prohibition’ is that while the former can be issued against judicial as well as administrative authorities, the latter is issued only against the judicial or quasi judicial authorities.
Certiorari: It is similar to prohibition. The only difference is that this writ is issued to quash the order of a lower court or the decision of a tribunal in excess of its jurisdiction, while Prohibition is issued to prevent an inferior court or tribunal to go ahead with the trial of a case in which it has assumed excess of jurisdiction. The purpose of this writ its to ensure that the jurisdiction of an inferior court or tribunal is properly exercised and that is does not usurp the jurisdiction it does not possess.
Quo Warranto: It literally means ‘what is your authority’. This kind of a writ is issued to ensure that the person holding a public office is qualified to hold the office. No time limit is prescribed for issuing the writs in the Constitution and it has been left to the courts to decide on this issue.

Difference between the Writ Jurisdiction of the Supreme Court and High Court:
• The SC issues a writ (under Article 32) only in cases of the violation of the Fundamental Rights, whereas the High Court (under Art 226) can issue the writs not only for the enforcement of the Fundamental Rights but also for redressal of any other injury or illegality, provided certain conditions are satisfied. Thus in a way, the writ jurisdiction of the High Court is wider than the SC.
• Article 32 imposes on the SC a duty to issue the writs, whereas no such duty is imposed on the High Court by Article 226.
• The Jurisdiction of the SC extends all over the country, whereas that of the High Court only to the territorial confines of the particular state and Union Territory to which its jurisdiction extends.

TERMS RELATED TO DOCTRINES
a) Doctrine of severability:
• Under the doctrine of severability, only the offending provision(s) of the act would be declared void and not the whole act.
• In other words, there is no need to nullify the whole act if only a part of it violates fundamental rights. Only the offending part needs to be nullified.
• Here the court(s) must find out whether the offending part can be separated from the rest of the act or not.

  1. b) Validity of Pre-Constitutional Laws:
    Article 13 applies to post constitutional laws only. A post-constitutional law, which violates fundamental rights, is void but a pre-constitutional law, which violates a fundamental right, remains valid till the commencement of the Constitution.
    • It cannot operate after 26 January 1950.
  2. c) Doctrine of Eclipse:
    The doctrine of Eclipse is applied in relation to a pre constitutional law which was valid when it was enacted.
    • Subsequently when the Constitution came into force a shadow falls on it because it is inconsistent with the Constitution. The act is eclipsed.
    • When the shadow is removed the pre-constitutional law becomes fully applicable and is free from infirmity.
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