Writs.docx

WRITS AND FORM OF WRITS

BY: PRIYANJALI KARMAKAR SUBMIT TO: PROF.PADMESH KATARIA BATCH: 2017-22ENROLMENT NO: 36351103817 SECTION:C(2ND YEAR) DATE OF SUBMISSION: 01/04/19 1|Page PRIYANJALI KARMAKAR

36351103817

WHAT ARE WRITS? In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court. Warrants, prerogative writs, and subpoenas are common types of writ, but many forms exist and have existed. In its earliest form a writ was simply a written order made by the English monarch to a specified person to undertake a specified action; for example, in the feudal era a military summons by the king to one of his tenants-in-chief to appear dressed for battle with retinue at a certain place and time. An early usage survives in the United Kingdom, Canada and Australia in a writ of election, which is a written order issued on behalf of the monarch (in Canada, by the Governor General and, in Australia, by the Governor-General for elections for the House of Representatives, or State Governors for State elections) to local officials (High Sheriffs of every county in the historical UK) to hold a general election. Writs were used by the medieval English kings to summon persons to Parliament, (then consisting primarily of the House of Lords) whose advice was considered valuable or who were particularly influential, and who were thereby deemed to have been created "barons by writ". It is a form of written command in the name of a court or other legal authority to act, or abstain from acting, in a particular way. In law, a writ is a formal written order issued by a government entity in the name of the sovereign power. In most cases, this government entity is a court. Two kinds of writs are warrants and prerogative writs, but there are many others.

2|Page PRIYANJALI KARMAKAR

36351103817

HISTORY In origin a writ was a letter, or command, from the King, usually written in Latin and sealed with the Great Seal. At a very early stage in the English common law, a writ became necessary, in most cases to have a case heard in one of the Royal Courts, such as the King's Bench or Common Pleas. The writ would act as a command that the case be brought before the Royal Court. Of course, where a plaintiff wished to have a case heard by a local court, or by an Eyre if one happened to be visiting the County, there would be no need to obtain a writ. Actions in local courts could usually be started by an informal complaint, which need not necessarily be written down. However if a plaintiff wished to avail themselves of Royal — and by implication superior — justice in one of the King's courts, then they would need a writ, a command of the King, to enable them to do this. It is important to remember that in the very early stages of the evolution of the common law, recourse to the King's courts was unusual, and something for which a plaintiff would have to pay. The writ would usually have been purchased from the Chancery, although the court of the Exchequer, being in essence another government department, was able to issue its own writs. While originally writs were exceptional, or at least non-routine devices, Maitland suggests that by the time of Henry II, the use of writs had become a regular part of the system of justice in England. At first, new writs could be drafted to fit new situations, although in practice the clerks of the Chancery would re-use old forms, and there were many books which were collections of forms of writ, much as in modern times lawyers frequently use fixed precedents or boilerplate, rather than re-inventing the wording of a legal document each time they wish to create one. The problem with this approach was that the ability to create new writs amounted to the ability to create new forms of action. A plaintiff's rights (and by implication those of a defendant) would be defined by the writs available to them: the ability to create new writs was close to the ability to create new rights, a form of legislation. There was increasing opposition to the creation of new writs by the Chancery. For example, in 1256, a court was asked to quash a writ as "novel, unheard of, and against reason" (Abbot of Lilleshall v Harcourt (1256) 96 SS xxix 44). This resulted in the Provisions of Oxford 1258, which prohibited the creation of new forms of writ without the sanction of the King's council. New writs were created after that time, but only by the express sanction of Parliament and the forms of writ remained essentially static. Each writ defining a particular Form of Action.

3|Page PRIYANJALI KARMAKAR

36351103817

With the abolition of the Forms of Action in 1832 and 1833, there no longer needed to be a variety of writs, and one uniform of writ came to be used. After 1852, the need to state the name of the form of action was also abolished. In 1875, the form of writ was altered so that it conformed more to the subpoena that had been in use in the Chancery. A writ was a summons from the Crown, to the parties in the action, with on its back the substance of the action set out, together with a 'prayer', which requested a remedy from the court (for example damages). In 1980, the need for writs to be written in the name of the Crown was ended, from that date a writ simply required the parties to appear. Writs applied to claims that were to be issued in one of the courts that eventually formed a part of the High Court of Justice. The procedure in a County Court, which was a creature of statute, was to issue a 'summons'. In 1999, the Woolf reforms, unified most of the procedure of the Supreme Court and the County Court in civil matters. Most actions could be begun by the completion of a 'Claim Form'. The term 'writ' has now largely passed into disuse in English law. In the UK and in some other parliamentary systems, the phrase 'dropping the writ' refers to the dissolution of government and the beginning of an election campaign to form a new House. This phrase derives from the fact that in order to hold an election in a parliamentary system the government must issue a writ of election. The development of writs as a means of commencing a court action was a form of "off-theshelf" justice designed to enable the English law courts to rapidly process lawsuits by allocating each form of complaint into a standard category which could be dealt with by standard procedures. The complainant simply applied to the court for the writ most relevant to his complaint to be sent to the wrongdoer, which ordered him under royal authority to attend a royal court to answer for his actions. The development was part of the establishment of a Court of Common Pleas, for dealing with commonly made complaints by subjects of the crown, for example: "someone has damaged my property". The previous system of justice at the royal court of Chancery was tailor-made to suit each case and was thus highly timeconsuming. Thus eventually the obtaining of a writ became necessary, in most cases, to have a case heard in one of the Royal Courts, such as the King's Bench or Common Pleas. Some franchise courts, especially in the Counties Palatine, had their own system of writs which often reflected or anticipated the common law writ.

4|Page PRIYANJALI KARMAKAR

36351103817

TYPES OF WRITS Anything that is issued under an authority is a writ. Orders, warrants, directions etc. issued under authority are examples of writs. There are five main types of writs viz. HABEAS CORPUS, MANDAMUS, PROHIBITION, QUO WARRANTO AND CERTIORARI. Each of them has different meaning and different implications. In India, both Supreme Court and High Court have been empowered with writ jurisdiction. Further, Parliament by law can extend power to issue writs to any other courts for local limits of jurisdiction of such courts. 1. HABEAS CORPUS Habeas Corpus literally means ‘to have the body of’. Via this writ, the court can cause any person who has been detained or imprisoned to be physically brought before the court. The court then examines the reason of his detention and if there is no legal justification of his detention, he can be set free. Such a writ can be issued in following example cases:  When the person is detained and not produced before the magistrate within 24 hours.  When the person is arrested without any violation of a law.  When a person is arrested under a law which is unconstitutional.  When detention is done to harm the person or is malafide. Thus, Habeas Corpus writ is called bulwark of individual liberty against arbitrary detention. A general rule of filing the petition is that a person whose right has been infringed must file a petition. Habeas corpus writ is applicable to preventive detention also. This writ can be issued against both public authorities as well as individuals. 2. MANDAMUS Mandamus means “we command”. This writ is a command issued by court to a public official, public body, corporation, inferior court, tribunal or government asking them to perform their duties which they have refused to perform. Due to this, Mandamus is called a “weakening call”and it awakes the sleeping authorities to perform their duty. Mandamus thus demands an activity and sets the authority in action. Mandamus cannot be issued against the following:  A private individual or private body.  If the duty in question is discretionary and not mandatory.  Against president or governors of state.  Against a working chief justice.  To enforce some kind of private contract A petition for writ of mandamus cab be filed by any person who seeks a legal duty to be performed by a person or a body. Such a filing person must have real or special interest in the subject matter and must have legal right to do so.

3. PROHIBITION The writ of prohibition means that the Supreme Court and High Courts may prohibit the lower courts such as special tribunals, magistrates, commissions, and other judiciary officers who are doing something which exceeds to their jurisdiction or acting contrary to the rule of natural justice For example if a judicial officer has personal interest in a case, it may hamper the decision and the course of natural justice. 4. CERTIORARI Certiorari means to “certify”. It’s a writ that orders to move a suit from an inferior court to superior court. It is issued by a higher court to a lower court or tribunal either to transfer a case 5|Page PRIYANJALI KARMAKAR

36351103817

pending with that to itself or squash its order. This is generally done because superior court believes that either the inferior court had no jurisdiction or committed an error of law. Thus, certiorari is a kind of curative writ. QUO WARRANTO Quo warranto means “by what warrant”? This writ is issued to enquire into legality of the claim of a person or public office. It restrains the person or public office. It restrains the person or authority to act in an office which he/she is not entitled to and thus stops usurpation of public office by anyone. This writ is applicable to the public offices only and not to private offices.

6|Page PRIYANJALI KARMAKAR

36351103817

7|Page PRIYANJALI KARMAKAR

36351103817