Prerogative writ
Encyclopedia
Prerogative writs are a class of writ
s which originate from English law
. Originally they were available only to the Crown
, but later they were made available to the monarch's subjects through the courts.
The prerogative writs are:
, on behalf of the applicant.
The prerogative writs other than habeas corpus
are discretionary remedies, and have been known as prerogative orders in England and Wales
since 1938. The writs of quo warranto and procedendo are now obsolete, and the orders of certiorari, mandamus and prohibition are under the new Civil Procedure Rules 1998
known as "quashing orders," "mandatory orders" and "prohibiting orders" respectively.
The writ of habeas corpus is still known by that name.
(a) Any act of the executive or of the Legislature which takes away or abridges the fundamental rights shall be void and the courts are empowered to declare such act as void. (Article 13)
(b) The Supreme Court and the High Courts are empowered to issue writs for the enforcement of fundamental rights against any authority of the State.
Article 12 has defined "State" to include the Government and Parliament of India, and the Government and Legislature of the States, and all local or other authorities within the territory of India or under the control of the Government of India. The expression, "other authorities" has been interpreted to cover even business organisations like LIC and therefore such organisations also are amenable to the writ jurisdiction of the courts.
(c) A proceeding under Article 32 is described as a constitutional remedy and the right to bring such proceedings before the Supreme Court is itself a fundamental right.
and its state court counterparts, which specify that there is "one form of action".
Nevertheless, the prudent litigator should familiarize himself or herself with the availability of writs in the jurisdiction in which he or she is admitted to practice.
Quo warranto and procedendo are largely obsolete.
Habeas corpus still exists, of course, but its availability has been narrowed over the years at both federal and state levels.
The Supreme Court of the United States
grants certiorari, while most state supreme court
s grant review.
Mandamus has been replaced in the United States district court
s and many state trial courts by injunction
. In the federal system, it is generally available only to the federal courts of appeals, which issue writs of mandamus to lower courts and administrative hearing panels, while some state systems still allow trial courts to issue writs of mandamus or mandate directly to government officials.
Prohibition is also generally limited to appellate courts, who use it to prevent lower courts from exceeding their jurisdiction.
Writ
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...
s which originate from English law
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
. Originally they were available only to the Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
, but later they were made available to the monarch's subjects through the courts.
The prerogative writs are:
- certiorariCertiorariCertiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
- habeas corpusHabeas corpusis a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
- mandamusMandamusA writ of mandamus or mandamus , or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly".Mandamus is a judicial remedy which...
- prohibitionProhibition (writ)A writ of prohibition is a writ directing a subordinate to stop doing something the law prohibits. In practice, the Court directs the Clerk to issue the Writ, and directs the Sheriff to serve it on the subordinate, and the Clerk prepares the Writ and gives it to the Sheriff, who serves it.This...
- procedendoProcedendoIn common law jurisprudence, procedendo is one of the prerogative writs. It is a writ that sends a case from an appellate court to a lower court with an order to proceed to judgment....
- quo warrantoQuo warrantoQuo warranto is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power they claim to hold.-History:...
- scire faciasScire faciasIn English law, a writ of scire facias was a writ founded upon some judicial record directing the sheriff to make the record known to a specified party, and requiring that defendant to show cause why the party bringing the writ should not be able to cite that record in his own interest, or why,...
(C.J. Antieau, The Practice of Extraordinary Remedies: Habeas Corpus and the Other Common Law Writs, Vol. II, at 802 ("Once known as a prerogative writ, scire facias is now better described as one of the extraordinary writs") (1987)
England and Wales
The prerogative writs are a means by which the Crown, acting through its courts, effects control over inferior courts or public authorities throughout the kingdom. The writs are issued in the name of the Crown, who is the nominal plaintiffPlaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
, on behalf of the applicant.
The prerogative writs other than habeas corpus
Habeas corpus
is a writ, or legal action, through which a prisoner can be released from unlawful detention. The remedy can be sought by the prisoner or by another person coming to his aid. Habeas corpus originated in the English legal system, but it is now available in many nations...
are discretionary remedies, and have been known as prerogative orders in England and Wales
England and Wales
England and Wales is a jurisdiction within the United Kingdom. It consists of England and Wales, two of the four countries of the United Kingdom...
since 1938. The writs of quo warranto and procedendo are now obsolete, and the orders of certiorari, mandamus and prohibition are under the new Civil Procedure Rules 1998
Civil Procedure Rules 1998
The Civil Procedure Rules are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil cases in England and Wales...
known as "quashing orders," "mandatory orders" and "prohibiting orders" respectively.
The writ of habeas corpus is still known by that name.
India
The declaration of fundamental rights would be meaningless unless these rights can be enforeced at the instance of the persons on whom they are conferred. The Constitution itself has laid down the following provisions for the enforcement of the fundamental rights.(a) Any act of the executive or of the Legislature which takes away or abridges the fundamental rights shall be void and the courts are empowered to declare such act as void. (Article 13)
(b) The Supreme Court and the High Courts are empowered to issue writs for the enforcement of fundamental rights against any authority of the State.
Article 12 has defined "State" to include the Government and Parliament of India, and the Government and Legislature of the States, and all local or other authorities within the territory of India or under the control of the Government of India. The expression, "other authorities" has been interpreted to cover even business organisations like LIC and therefore such organisations also are amenable to the writ jurisdiction of the courts.
(c) A proceeding under Article 32 is described as a constitutional remedy and the right to bring such proceedings before the Supreme Court is itself a fundamental right.
United States
In the United States federal court system, the issuance of writs is authorised by U.S. Code, Title 28, Section 1651. The language of the statute was left deliberately vague in order to allow the courts flexibility in determining what writs are necessary "in aid of their jurisdiction". Use of writs at the trial court level has been greatly curtailed by the adoption of the Federal Rules of Civil ProcedureFederal Rules of Civil Procedure
The Federal Rules of Civil Procedure govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling Act, and then the United States Congress has 7 months to veto the rules promulgated or they become part of the...
and its state court counterparts, which specify that there is "one form of action".
Nevertheless, the prudent litigator should familiarize himself or herself with the availability of writs in the jurisdiction in which he or she is admitted to practice.
Quo warranto and procedendo are largely obsolete.
Habeas corpus still exists, of course, but its availability has been narrowed over the years at both federal and state levels.
The Supreme Court of the United States
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
grants certiorari, while most state supreme court
State supreme court
In the United States, the state supreme court is the highest state court in the state court system ....
s grant review.
Mandamus has been replaced in the United States district court
United States district court
The United States district courts are the general trial courts of the United States federal court system. Both civil and criminal cases are filed in the district court, which is a court of law, equity, and admiralty. There is a United States bankruptcy court associated with each United States...
s and many state trial courts by injunction
Injunction
An injunction is an equitable remedy in the form of a court order that requires a party to do or refrain from doing certain acts. A party that fails to comply with an injunction faces criminal or civil penalties and may have to pay damages or accept sanctions...
. In the federal system, it is generally available only to the federal courts of appeals, which issue writs of mandamus to lower courts and administrative hearing panels, while some state systems still allow trial courts to issue writs of mandamus or mandate directly to government officials.
Prohibition is also generally limited to appellate courts, who use it to prevent lower courts from exceeding their jurisdiction.