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WRITS are of various types. What follows is a brief description of them:

Habeas corpus: The writ of habeas corpus — an effective bulwark of personal liberty — is a remedy available to a person who is confined without legal justification. The words habeas corpus literally mean "to have the body". When a prima facie case for the issue of writ has been made, then the court issues a rule nisi upon the relevant authority to show cause why the writ should not be issued. This is in order to let the court know on what grounds he has been confined and to set him free if there is no justification for his detention. This writ has to be obeyed by the detaining authority by producing the person before the court.

Under Articles 32 and 226, any person can move for this writ to the Supreme Court and High Court respectively The applicant may be the prisoner or any person acting on his behalf to safeguard his liberty for the issuance of the writ of habeas corpus as no man can be punished or deprived of his personal liberty except for violation of law and in the ordinary legal manner. An appeal to the Supreme Court may lie against an order granting or rejecting the application (Articles 132, 134 or 136). Disobeying this writ is met with by punishment for contempt of court under the Contempt of Courts Act.

Mandamus: The word mandamus literally means "we command". The writ of mandamus is a command issued to direct any person, corporation, inferior court, or Government requiring him/it to do a particular thing specified therein, which pertains to his/its office and is further in the nature of a public duty. This writ is used when the inferior tribunal has declined to exercise jurisdiction while resort to certiorari and prohibition arises when the tribunal has wrongly exercised jurisdiction or exceeded its jurisdiction and are available only against judicial and quasi-judicial bodies.

Mandamus can be issued against any public authority. It commands activity. The writ is used for securing judicial enforcement of public duties. In a fit case, the court can direct executives to carry out Directive Principles of the Constitution through this writ (State of Maharashtra vs MP Vashi, 1995 (4) SCALE). The applicant must have a legal right to the performance of a legal duty by the person against whom the writ is prayed for. It is not issued if the authority has discretion.

The Constitution, through Articles 226 and 32, enables mandamus to be issued by the High Courts and the Supreme Court to all authorities.

Mandamus does not lie against the President or the Governor of a State for the exercise of their duties and power (Article 361). It does not lie also against a private individual or body except where the state is in collusion with such private party in the matter of contravention of any provision of the Constitution of a statute. It is a discretionary remedy and the High Court may refuse if alternative remedy exists except in case of infringement of fundamental rights.

Prohibition: A writ of prohibition is issued to an inferior court, preventing the latter from usurping jurisdiction which is not legally vested in it. When a tribunal acts without or in excess of jurisdiction, or in violation of rules or law, a writ of prohibition can be asked for. It is generally issued before the trial of the case.

While mandamus commands activity, prohibition commands inactivity, it is available only against judicial or quasi-judicial authorities and is not available against a public officer who is not vested with judicial functions. If abuse of power is apparent, this writ may be of right and not a matter of discretion.

Certiorari: It is available to any person, wherever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially in excess of their legal authority (The King vs Electricity Commissioners, (1924) I.K.B. 171, R 204-5).

The writ removes the proceedings from such body to the High Court, to

quash a decision that goes beyond its jurisdiction. Under the Constitution of India, all High Courts can issue the writ of certiorari throughout their territorial jurisdiction when the subordinate judicial authority acts i) without or in excess of jurisdiction, in ii) contravention of the rules of natural justice or iii) commits an error apparent on the face of the record. The jurisdiction of the Supreme Court to issue such writs arises under Article 32. Although the object of both the writs of prohibition and of certiorari is the same, prohibition is available at an earlier stage whereas certiorari is available at a later stage but in similar grounds, that is, certiorari is issued after authority has exercised its powers.

Quo Warranto: The writ of quo warranto enables enquiry into the legality of the claim which a person asserts, to an office or franchise and to oust him from such position if he is an usurper. The holder of the office has to show to the court under what authority he holds the office. It is issued when: i) the office is of public and of a substantive nature; ii) created by statute or by the Constitution itself, and iii) the respondent has asserted his claim to the office. It can be issued even though he has not assumed the charge of the office.

The fundamental basis of the proceeding of quo warranto is that the public has an interest to see that a lawful claimant does not usurp a public office. It is a discretionary remedy which the court may grant or refuse.

Arbitration and conciliation

WITH a view to consolidate and amend the law relating to domestic arbitration, international commercial arbitration, enforcement of foreign arbitral awards and also to provide for a law relating to conciliation and related matters, a new law called Arbitration and Conciliation Act, 1996 has been passed. The new law is based on the United Nations Commission on International Trade Law (UNCITRAL), a model law on international commercial arbitration. The fundamental principles of arbitration remain the same.

The Act repeals the Arbitration Act, 1940, the Arbitration (Protocol and Convention) Act, 1937 and the Foreign Awards (Recognition and Enforcement) Act, 1961 subject to provisions of Section 85(2) of the Act, which provides that notwithstanding such repeal:

a) the provisions of the said enactments shall apply in relation to arbitral proceedings already commenced before the Act came into force, unless otherwise agreed by the parties, but the Act shall apply in relation to arbitral proceedings which commenced on or after the Act came into force; and

b) all rules made and notifications published, under the said enactments shall, to the extent to which they are not repugnant to the Act, be deemed to have been made or issued under the Act. The Act has been brought into force with effect from January 25, 1996.

Objectives of the Act

Major changes have been brought in the new law to attract foreign investors by creating such circumstances so that they may have confidence in the system of commercial disputes resolution and enforcement of foreign awards in India. This has been done by reducing the intervention of the court, increase in arbitrators' powers, reducing the grounds for challenging the arbitrators' award and affording a finality to the arbitrators award.

The Act also tries to put some check on the parties to raise objections in their attempt to delay arbitration proceedings. The Act also provides for filling up of vacancies of arbitrators, besides deletion of the time limit for making an award. Arbitral institutions are recognised in the Act in resolving disputes.

(Edited extracts from General and Commercial Laws — Intermediate Course Study Material, Paper 1. Courtesy:Tthe Institute of Company Secretaries of India. www.icsiindia.org)

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