Posts tagged ‘Writ’

Importance of writs

Article 226 of the constitution confers the High Courts wide powers to issue orders and writs to any person or authority. Before a writ or an order is passed, the party approaching the court has to establish that he has a right and that right is illegally invaded or threatened. High court can issue writ and directions, to any Government, authority or person even beyond its territorial jurisdiction, if the cause of action partly arises within its territorial jurisdiction.

Wherever questions of facts are involved normally High Court does not exercise its power under article 226.Similary when an alternative remedy is available to the Petitioner, the Courts do not entertain petitions under Article 226.Also when there is an inordinate delay in approaching the court, the court may not give relief acting under this Article.

There are various types of Writs: – Habeas Corpus, Mandamus, Prohibition, Quo Warranto and Certiorari. Supreme Court under Article 32 of the Constitution can exercise similar Powers.

The basic idea in conferring powers under Article 226 upon High Court is to see that the rule of law is maintained in the society. The executive Authorities are to be corrected whenever they transgress the limits of their power and encroach upon the rights of the citizen. Violations of human rights, natural rights etc., are instances where the High courts interfere using this powerful article of the constitution.

Writ of habeas corpus

High Courts exercising the power under Article 226 of the Constitution can issue writs of Habeas Corpus. It is a writ in the nature of an order calling upon the person who has detained another to produce the latter before the court, in order to let the court know on what ground he has been confined and to set him free if there is no legal jurisdiction for the imprisonment. An application for Habeas Corpus can be filed by the near and dear of the individual detained or even by a stranger or a social worker.

Under Article 226, a petition for Habeas Corpus would lie not only when a person is detained by the state, but also when he is detained by another private individual. The custody of a minor child can be obtained by a rightful parent under a Habeas Corpus proceeding. Similarly, Habeas Corpus is available to a husband to regain the custody of his wife.

Where it is shown that the petitioner was arrested and imprisoned with mischievous and malicious intent, the court shall have the power to compensate the petitioner by awarding suitable monetary compensation or exemplary costs.

To decline to give effect to an order of release passed on an application for Habeas Corpus amounts to contempt of court punishable by imprisonment and attachment.