Comparative study of writ remedies in India, UK and USA
🧾 Comparative Study of Writ Remedies: India, UK, USA
| Feature | India | UK (United Kingdom) | USA (United States of America) |
|---|---|---|---|
| Origin | Inherited from British law | Originated in common law and royal prerogatives | Based on constitutional and statutory framework |
| Constitutional Basis | Articles 32 and 226 of the Constitution | No written constitution; derived from common law | U.S. Constitution, mainly Article III; also statutes like the Habeas Corpus Act |
| Writs Available | Habeas Corpus, Mandamus, Prohibition, Certiorari, Quo-Warranto | Same five writs, evolved through judicial decisions | Primarily Habeas Corpus; others are via statutes or court doctrines |
| Availability | Fundamental Right; guaranteed remedy (Art. 32) | Discretionary; not considered a fundamental right | Habeas Corpus is constitutional; others are judicial tools |
| Scope of Enforcement | Art. 32 – for violation of fundamental rights; Art. 226 – broader scope (legal and fundamental rights) | Used to check unlawful executive/administrative actions | Used to protect liberty and due process |
| Courts Empowered | Supreme Court (Art. 32), High Courts (Art. 226) | High Court (King’s Bench Division), later judicial review evolved | Federal and State Courts; especially District Courts |
| Limitation | Subject to reasonable restrictions under Constitution | Based on judicial discretion | Habeas Corpus can be suspended in certain emergencies |
🔍 Detailed Explanation of Key Case Laws
1. India: Romesh Thappar v. State of Madras (1950)
Writ Involved: Writ of Certiorari
Facts:
Romesh Thappar's magazine was banned in Madras for allegedly disturbing public order. He filed a writ under Article 32.
Held:
The Supreme Court held that freedom of speech is a fundamental right under Article 19(1)(a), and the state's action was unconstitutional. The writ of certiorari was issued to quash the government order.
Key Principle:
Writ jurisdiction under Article 32 is the heart and soul of the Constitution and can be invoked directly in case of violation of fundamental rights.
2. India: Maneka Gandhi v. Union of India (1978)
Writ Involved: Writ of Mandamus
Facts:
Maneka Gandhi's passport was impounded without being given any reason or chance to be heard.
Held:
The Court ruled that the right to travel abroad is part of personal liberty under Article 21. Due process must be followed. The government was directed via mandamus to disclose reasons.
Key Principle:
Expanded the scope of Article 21 and affirmed the writ of mandamus to enforce fundamental rights against arbitrary executive action.
3. UK: R v. Home Secretary, ex parte Hosenball (1977)
Writ Involved: Habeas Corpus / Certiorari
Facts:
An American journalist was deported from the UK without a formal hearing, citing national security.
Held:
The Court accepted the Home Secretary’s decision, showing judicial deference to executive discretion in national security matters.
Key Principle:
Shows limits of habeas corpus in the UK when it comes to executive decisions based on national security.
4. UK: R v. Secretary of State for the Home Department, ex parte Khawaja (1984)
Writ Involved: Writ of Habeas Corpus
Facts:
Two foreign nationals were detained and deported for allegedly entering the UK illegally.
Held:
The House of Lords held that the burden of proof lies on the government to justify detention. Habeas corpus was granted.
Key Principle:
Affirmed that the right to liberty is protected under common law and the courts can review executive detention through habeas corpus.
5. USA: Brown v. Allen (1953)
Writ Involved: Writ of Habeas Corpus
Facts:
A death row prisoner filed for habeas corpus claiming that his trial was unfair.
Held:
The US Supreme Court held that federal courts can review constitutional violations in state convictions via habeas corpus even after state courts had denied relief.
Key Principle:
Habeas corpus is a crucial tool for constitutional review and protects individual liberty against unlawful detention even after conviction.
6. USA: Boumediene v. Bush (2008)
Writ Involved: Habeas Corpus
Facts:
Detainees at Guantanamo Bay challenged the Military Commissions Act, which denied habeas corpus rights.
Held:
The US Supreme Court ruled that foreign detainees have the right to habeas corpus, and the denial was unconstitutional.
Key Principle:
Even non-citizens have the right to judicial review of detention under habeas corpus, reinforcing it as a fundamental safeguard of liberty.
🧾 Summary Table of Case Laws
| Case Name | Country | Writ | Key Contribution |
|---|---|---|---|
| Romesh Thappar v. State of Madras (1950) | India | Certiorari | Invalidated censorship order; upheld press freedom. |
| Maneka Gandhi v. Union of India (1978) | India | Mandamus | Due process under Article 21; expanded writ scope. |
| R v. Hosenball (1977) | UK | Habeas/Certiorari | Showed limits of review in national security cases. |
| R v. Khawaja (1984) | UK | Habeas Corpus | Affirmed liberty and judicial oversight of executive detention. |
| Brown v. Allen (1953) | USA | Habeas Corpus | Allowed federal review of state convictions. |
| Boumediene v. Bush (2008) | USA | Habeas Corpus | Extended habeas rights to foreign detainees. |
🔚 Conclusion
India gives constitutional status to writs, particularly for protecting fundamental rights.
UK still bases writs on common law traditions, where writs are more discretionary.
USA recognizes habeas corpus as a constitutional guarantee, but other writs are largely statutory or judicial in nature.
The principle of judicial review through writs is a shared tradition, but its scope and enforceability differ based on the constitutional and legal frameworks of each country.
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