Habeas Corpus In India And USA | Haw Many Writs In India
Introduction
Habeas corpus is a write which gives a protection from the violation of the fundamental rights, if any body is arrested or detained by the authority then he or any body on behalf of this person can file a write petition to brought this person before the courts within specific time period. In every law there are 5 type of writes are available for the protection of legal rights and fundamental rights.
There may be so much reason to file petition for example if any body detained in the custody of authority without any reasonable point or without any violation of law in that situation prisoner on any person on behalf of prisoners can file a petition under this writ. There are five type of writs and all are to protect the legal rights and Fundamental rights.
Where writ petition can be filed
Habeas Corpus
Habeas corpus which literally means to produce the body. Habeas Corpus has historically been an important instrument to safeguard individual freedom against arbitrary executive power. The writ of habeas corpus originated in Medieval English common law, in this writ requires a prisoner to be brought before a court for the court to determine whether the prisoner is being legally detained and if not , to order the prisoners release.
Habeas Corpus U.S.A
On the other hand , President Bush called for the detention of enemy combatants on foreign soil where there was no immediate danger posed to the United States because a substantial amount of time had passed since the terrorist attacked on our country .Furthermore , president Lincoln was forced to act alone as the event causing his suspension of the writ of habeas corpus arose while Congress was not in session and would not be in session for the next several months.
President Bush found himself in a much different situation ,in that respect as he had a congress currently in session then he decided to take executive action without approaching legislators to suspend the writ of habeas corpus in compliance with the constitution.
In both situation the supreme court has ruled that access to the writ of habeas corpus is a fundamental right and suspension of such by president is in violation of the united states constitution .
Abraham suspension of a habeas corpus during the civil war presented issue similar to those presented by the Guantanamo detained cases.
President Lincoln and bush both unconstitutionally suspended habeas corpus during a time of war because the writ of habeas corpus is a fundamental rights and suspension is a power granted only to congress .
Although the suspension appear to be unconstitutional , President Lincoln was justified in suspending the writ of habeas corpus due to provision on article 2 of the united states Constitution .
MANDAMUS
(We command) A writ of mandamus is a court order compelling someone to execute a duty that they are legally bound to complete . A writ of mandamus also used by court to order lower court and to order other govt agency to complete a duty .Writs of mandamus are unique because they can be made without completing the full judicial process.
A writ of Mandamus is deemed necessary when the action of government bodies or corporate official are so inappropriate that immediate emergency action needs to be taken by the legal system.
Writ of mandamus were first used by English court in the early seventeenth century. After migrating to the court in the American colonies, law surrounding its usage have mostly remained the same. A writ of mandamus is a remedy that can be executed through court opinions,status,and court rules on both federal and state level.
Quo Warranto
Quo warranto writ is used to judicially control executive action in the matter of making appointments to public offices under relevant statutory provisions . The writ is also used to protect a citizen from the holder of a public office to which he has no right . The writ calls upon the holder of a public office to show to the court under what authority he is holding the office in question . If he is not entitled to the office , the court may restrain him from acting in the office and may also declare the office to be vacant .
The writ proceedings not only give a weapon
to control the executive from making appointments to public office against law
but also protect the public from being deprived of public office to which it
has a right. Quo Warranto simple meaning is to ask person to what is
your authority.
Certiorari
When the Court is of the opinion that a lower court or a tribunal has passed an order which is beyond its powers or committed an error of law then, through the writ of certiorari, it may transfer the case to itself or quash the order passed by the lower court or tribunal. A writ of certiorari is issued by the Supreme Court or High Court to the subordinate courts or tribunal.
If court acts without jurisdiction and subordinate court acts in excess of its jurisdiction ,in some cases it may possible that subordinate court or tribunal acts in violation of natural justice principles
Prohibition
A writ of prohibition is issued by a Court to prohibit the lower courts, tribunals and other quasi-judicial authorities from doing something beyond their authority.
It is issued to direct inactivity and thus differs from mandamus which directs activity when the lower court or tribunal acts without or in excess of jurisdiction or in violation of rules of natural justice or in contravention of fundamental rights.
It can also be issued when a lower court or tribunal acts under a law that is itself ultra vires.
Writ of prohibition is issued prohibition the proceeding in the lower court which acts without or excess of jurisdiction while the case is pending before it.
Who can file Writ petition
A writ petition can be filed by any person who's Fundamental Rights have been infringed by the State. Under a Public Interest
Litigation, any public spirited person may file a writ petition in the interest
of the general public and if his own Fundamental Right has not been infringed.
Where writ petition can be filed
Under aricle 226 and under article 32 any person can move to high court or supreme court ,article 226 is specifically for high court, if anybody think that supreme court shall be competent for any particular subject matter then he or she can directly move to the Supreme court under article 32 but special reason should be mentioned.
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