A writ is intended to provide a remedy for the enforcement of the law against governmental or statutory public bodies. Writ refers to a written document that requests or requires a public body to do or refrain from doing something. Writ is only available to public bodies. In the case law of Abu-al-Siddique (Md.) Vs. Bangladesh and Ors., Writ Petition No. 7074 of 2012, Supreme court, public body is defined as “Any authority, body, corporation or institution constituted or established by or under any law and includes any other body, authority or institution owned, controlled or managed or set up by the Government. Any person serving in any public body is subject to uniform grades and scales, as well as uniform terms and conditions of service.”
This scenario for writ application could occur if a government body takes unjustified adverse action against people. Article 102 of the Constitution addresses the High Court Division’s writ jurisdiction, whereas Article 104 of the Constitution addresses the Appellate Division’s. Article 102 of the Bangladesh Constitution specifies the various types of orders that the High Court Division may issue in the exercise of its writ jurisdiction.
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According to Bangladesh’s constitution, there are five writs available:
The power to issue a writ petition in India is primarily a provision – to the Right of Constitutional Remedies to every citizen and this right acts as a guarantor of all other fundamental rights in India.
There are five writ petition types in the Indian constitution, which you can file either before the High Court or Supreme Court such as:
- Habeas Corpus
- Quo Warranto
The High Court Division is empowered to direct a person carrying out any functions relating to the affairs of the Republic or a local authority to refrain from doing what is not permitted by law in the first part of Clause (2) of Article 102 of the People’s Republic of Bangladesh 1972 16. It thus addresses the prohibition writ, which is issued to prevent an individual from acting if the conditions listed are met. The conditions are (a) an application filed by an aggrieved person, (b) no equally effective remedy is available, (c) acts without or exceeding jurisdiction, and (d) done by a person performing functions in connection with the affairs of the public body.
(a) An application filed by a person who has been wronged:
The prohibition writ can only be issued if an aggrieved party files it. The term “aggrieved individual” is not defined in the Constitution. The Court has determined the significance of the expression in various instances based on the facts and circumstances of each specific situation. A person is considered an aggrieved individual if he or she has a direct private interest in the subject matter for which the writ is sought. This rule was applied to both individuals and groups of individuals.
As in Bangladesh, in Sangbad Patra Parishad vs. Bangladesh, the newspaper owners’ association challenged a Wage Board award; in rejecting the petition, the High Court Division ruled that’ The Wage Board award law had no direct private stake in the association. It is not required to pay anything under the award to any of the parties involved, but it is the owners of the individual newspapers who must pay, and they are upset.
(b) There is no equally effective remedy available.
Before issuing any prerogative (in the form of various types of orders under Article 102 of the Constitution), the Supreme Court of Bangladesh must be satisfied that the aggrieved individual has exhausted all other similarly effective remedies provided by law. If the aggrieved person does not prefer the alternative solution and there is no adequate reason for doing so, the individual will not be entitled to the High Court Division’s exceptional remedies when exercising their writ jurisdiction.
(c) Acts without authority or in excess of authority
No Authority has the authority to go beyond the scope of the statute. Any action taken by an agency that exceeds its jurisdiction is invalid and ultra vires. This is true even if one part of the law has jurisdiction and the other part of the law does not. And the jurisdictional portion cannot be separated from the other without causing any harm to anyone. “There can be no doubt that if a Tribunal or Court acts wholly without jurisdiction, its action would be a nullity,” said Kaji Shafiuddin, J. in Abdul Khaleque vs. Court of Settlement. “If the actions done with jurisdiction and without jurisdiction are so inextricably mixed up, and action done with jurisdiction cannot be separated without causing prejudice to either party, then the whole action may be declared null and void.”
(d) By a person performing functions related to the public body’s affairs
The prohibition letter may be issued to administrative officials as well as judicial and quasi-judicial bodies. It, like mandamus and certiorari (to be discussed later), may be issued against any authority, regardless of function, if it performs functions related to the affairs of the Republic or any local authority.
The term “Local Authority” refers to a body or individual empowered by law or the government to carry out specific administrative tasks. It is entrusted with some of the government’s sovereign functions. Such tasks must be completed for the benefit of the general public. It must be a person performing tasks related to the affairs of the Republic.
Mandamus is a Court order or order that directs any person, corporation, or inferior tribunal requiring him to do something specific as his duty. When a court, tribunal, authority, or person fails to fulfill his statutory duty, the High Court orders the Court or person to do his statutory duty.
The second part of clause (2) (a) I of Article 102 authorizes the Division of the High Court to issue mandamus writs to compel an individual performing tasks in connection with the affairs of the Republic or Local Authority to do something required by law.
The difference between mandamus and prohibition is that mandamus commands the public official to do what they are legally required to do, whereas prohibition prevents them from doing what they are not permitted to do by law. Mandamus, like a ban, will not be granted if the aggrieved party does not apply or if there is another similarly effective remedy provided by law. Mandamus may assign duties to any individual in relation to the affairs of the Republic or a local authority.
The court laid down the following requirements of the writ of mandamus:
- There should be a legal right in existence
- The legal right should be enforceable by the court
- Enforcement of such a right must impose a responsibility of per on a person, public authority, corporation or government
- Such duty is of public nature
Writ of mandamus can be issued against the following :
- An individual or a private body
- If the duty which is the subject matter is discretionary and not mandatory
- It can be issued against the president or the governor of the state
- Against an acting chief justice
- To enforce a private contract
Mandamus cannot be used to impose public policy or anything other than a public duty. To be eligible for a mandamus writing, the petitioner must be legally entitled to perform the public duty. In Fisherman Telekhal Progressive vs. Bangladesh, the petitioner challenged the settlement of two fisheries on the grounds that it was contrary to government policy as stated in government memoranda. The government memorandum was the publication of a government policy without any statutory force.
Certiorari is intended to monitor the superior courts’ actions and ensure that they have not exceeded their jurisdiction. Ceriorari, like prohibition, is granted by the High Court Division when (a) an aggrieved individual applies for it, (b) no other similarly effective remedy is provided by law, and (c) the individual to be prosecuted is a person performing tasks related to the affairs of the Republic or a local authority.
In simple terms, one can issue the writ of certiorari when the subordinate courts or the quasi-judicial bodies act in:
- The absence of their jurisdiction, or
- Exceeds their jurisdiction or
- Fails to make use of their jurisdiction
In the case of STATE OF UP vs MOHAMMED NOOR (AIR 1958 SC 816), the supreme court stated that one can issue the writ of certiorari. To mainly reform the jurisdiction-related mistakes of the inferior court or tribunal.
Subsequently, in another judgment of HARI VISHNU KAMATH vs. AHMED ISHAQ (AIR 1995 SC 233). The Supreme Court held that one can only issue the writ of certiorari to correct the errors apparent on the face of records, but not for the correction of an error of fact.
The Essential Condition for Writ of Certiorari:
- There should be court, tribunal or an officer having the legal authority to determine the question with a duty to act judicially
- Such a court, tribunal or officer must have passed an order acting without jurisdiction. Or in excess of the judicial authority vested by law in such court, tribunal or officer.
- The order could also be against the principles of natural justice. Or the order could contain an error of judgment in appreciating the facts of the case
Unlike a prohibition, however, it is issued after the act or proceeding has been completed to declare that such an act or proceeding was carried out without legal authority and has no legal consequences. While a prohibition is issued to prevent an act or proceeding when it is not complete and something remains to be prevented, certiorari is issued when the act or proceeding is complete.
Writ of Habeas Corpus
The High Court Division is authorized under Article 102 (2) (b) I of the Bangladesh Constitution, 1972, to order that an individual in custody be brought before him to ensure that he is not detained without legal authority or unlawfully.
Habeas Corpus is a writ issued to protect freedom, which is thought to be very important. It is granted by the police authority in the event of wrongful detention or deportation. Habeas Corpus is a type of court order that directs authorities to detain a person in order to bring that person to court. The authorities must then explain why he is being held. If the explanation is inadequate, the Court may order the person’s release. Thus, habeas corpus is a method of ensuring the subjects’ private liberty.
Such a person must hold a government position. A public office denotes a constitutional office or a law governing the affairs of the Republic or a local authority. Only when a government functionary has a legal obligation and refuses to fulfill it will it be awarded. The obligation could be administrative, quasi-judicial, or judicial in nature.
Thus, the features of the writ petition are as follows:
- Court has the authority to ask questions regarding the causes of detention of the detained person
- The court can issue a summon for the production of the detained person in the court
- If it is concluded that the detention of the person is illegal, it can order for the release of the person
One can file the writ petition of Habeas Corpus in any of the courts, be it High Court or the Supreme Court. Also, one can issue it under the following circumstances where:
- The person has been detained but has not been produced before the magistrate within 24 hours of arrest
- The arrest has been made without any violation of law done by the person
- The arrest has been made for an unconstitutional law i.e. a law against the provisions of the Indian Constitution
- Detention is done with malafide intent, or with the intent to harm the persons
Thus, the writing of habeas corpus lies when a person is arrested without lawful authority or in an illegitimate manner. It will be awarded if the law providing for imprisonment is unconstitutional or invalid, or if the law is valid but the order is illegitimate or exceeds its authority.
An action is unlawful if it is malafide, a colorful exercise of power, or if it is done for insignificant or foreign reasons, or if the detaining authority fails to apply its mind. In the case of Abdul Latif Mirza vs. Bangladesh, the Deputy Commissioner’s detention period expired, and a new detention order issued by the government was served on the detainee two days later, while the detention was declared unlawful for the two days that followed.
What is the warranty?
Quo-Warranto is a writ issued by the High Court that verifies a person’s title to the office and thus dismisses the unlawful occupants by judicial order. When an individual illegally holds a law-created public office, the High Court may, by issuing quo-warranto, ask the individual to demonstrate on what power he holds the office and may order him not to hold such office again. Article 102 (2)(b)(ii) of the Bangladesh Constitution of 1972 authorizes the High Court Division to issue a quo-warranto order.
A person holding or claiming to hold a government office may be required to demonstrate the authority under which he claims to hold that office. If there is an application requesting the same thing and no other similarly effective solution is provided by legislation, this writing may be issued. It should be noted that, similar to habeas corpus, an aggrieved individual is not required to file a request for quo-warranato. However, unlike habeas corpus, which is mandatory, the latter is discretionary.
- There is a vacancy in the government and by giving a job to a 63-year-old person, they fill that vacancy
- But since, the retirement age is 60 years, so in this case, one can file a writ of quo-warranto to remove such person from the public office
The supreme court in the case of UNIVERSITY OF MYSORE vs. GOVIND RAO laid down the requirements of the petition of quo-warranto which are as follows:
- A disputed post must be the public post
- The post should be held by the person without any legal authority
- The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.
It gives the judiciary jurisdiction and power to monitor executive action in matters of appointing government officers against the appropriate statutory provisions. A person will be discovered to be holding a public office without a legal power if he is not eligible to hold the office or if some mandatory provisions of law were violated when making the appointment or entering the office. The quo-warranto writing also prevents a citizen from being denied the right to a public office.
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