What is a writ Petition? How can I file a writ petition in India?

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Introduction –

The constitution of India provides various rights to the citizens of India. One of the most essential rights for the intellectual and moral development of citizens of India are fundamental rights. These rights are mentioned under part – III of India constitution including rights to Equality , right to freedom , right against exploitation , right to freedom of religion , cultural and educational rights and right to constitutional remedies. Merely stating these rights under the constitution and providing them to the citizens of India is not Sufficient . It is required that these rights should be protected.

In order to protect these essential rights, article 32 and article 226 of the Indian constitution provides remedies and enforcement of rights mentioned under part – III. Article 32 and article 226 provides the right to move to the Supreme Court and the high court respectively through appropriate proceedings. This right can be availed by any court respectively though appropriate proceedings. This can be availed by any person whose fundamental rights are violated.

Writ petition is an order by a higher court to a lower court or courts, directing them to do something or stop them from doing something. Writ is a form of written command in the name of the court. It directs you to act in a specific way.

In the Indian legal system , you can file or draft a writ petition under article 226 in the high court and under article 32 of the Indian constitution in the supreme court, article 32 and article 226 of the Indian constitution elaborate on the process and meaning of the writ petition. Or else, at any point in time , you

can consult an expert lawyer to draft a writ petition for you. You can also file a criminal or civil writ petition in the high court or the Supreme Court, depending on the case matter. In case the high court doesn’t give a suitable judgment, you can then submit the petition of the writ in the Supreme Court.

What is a writ?

A writ means an order that is issued under an authority. Therefore, a writ can be understood as a formal order issued by a court.

The constitution of India, under article 32 and article 226, provides five types of writs to the citizens of India. These writings have different meanings and applications.

  • Habeas corpus
  • Mandamus
  • Prohibition
  • Certiorari
  • Quo Warranto

Who can file the writ petition?

A writ petition can be filed by any individual whose fundamental rights, mentioned under part III of the Indian constitution, are violated. It is a protection against the infringement of fundamental rights.

The application of the writ of habeas corpus can be filed by a prisoner who is detained and also by his/her friends or relatives. It is considered as a power that can force the court to address the officer who detained the prisoner. If the court finds that the officer is acting beyond his authority, then the court can order to release the prisoner.

Where to file the writ petition?

The writ petition, for the violation of fundamental rights, can be filed either in the High Courts or in the Supreme Court. Under Article 32, a person can file a writ petition in the Supreme Court for the violation of his/her fundamental rights.

Under Article 226, a person can move to the High Courts to file a writ petition when there is a violation of his/her fundamental rights. It should be noted that the authority against whom the writ petition is filed has to be present within the territory of India, otherwise, the petition has no value.

When a person’s fundamental rights are infringed, he can move to either of the courts. It is not necessary to first move to the High Court and then to the Supreme Court.

In the case of Rajmata Vijai Raje Scindia vs State of Uttar Pradesh, 1986 it was held that there is no specific time limit to file a writ petition in India but it is expected that it should be filed without any delay. In case there is a delay, the court asks for valid justification for the delay. Hence, a reasonable delay is justified, otherwise, the petition may be dismissed.

How to file a writ petition?

To file a writ petition in either of the courts, a specific procedure needs to be followed:

Firstly, the aggrieved party has to approach a particular organization with necessary documents like identity proof, residential proof, photographs etc.

Then there is the drafting of the petition with the help of a lawyer. The draft includes the name and address of the aggrieved party along with the facts that lead to the violation of his/her fundamental rights.

After this process, the draft of the petition is sent to the court.

Then the date of hearing will be set and on this date the court accepts the petition and generates a notice to the other party. After this, a date is given to assure the presence of both the parties.

Finally, after hearing both the parties, the court gives judgement and grants relief accordingly.

Habeas corpus

Habeas corpus means ‘you may have the body of ’this writ can be used when a person is illegally detained. By the use of this writ, the court directs the person detained to be brought before the court to examine the legality of his detention.

Ex – When one files petitions of habeas corpus in nature, then the court orders the authority to produce the detained person before him to examine whether he/she has been examined legally or illegally .

  • On conducting the examination, if the court finds that the person has been illegally detained, it can order for the release of the person.

This writ filed under following circumstances :

  1. When a person is arrested even when he has not violated any law.
  • When a person is detained but is not produced before the magistrate within 24 hours of arrest, excluding the time consumed in travelling.
  • When a person is arrested with a malafide intention

Recently, the writ of habeas corpus was used by republic TV editor- in-chief arnab goswami befor bombay high court, challenging his arrest in the case of abetment to suicide.

But this writ cannot be filed the following circumstances:

  1. Where the detention of a person is in accordance with the law.
  • When the person or authority against whom the habeas corpus is filed is not within the territorial jurisdiction of the court.

In the case of SUNIL BATRA VS DELHI ADMINISTRATION, 1980, the Supreme Court expanded the scope of habeas corpus to the prisoners against inhumane treatment by the jail authorities. It was held in this case, that the court has the power and responsibility to protect the prisoners against this crude behaviour and can use habeas corpus writ to enforce in prison humanism.

Who can file a writ of habeas corpus?

Generally, the person who is an illegal detainee files the writ of habeas corpus. To begin the writ process for filing a petition of habeas corpus, one can file it and issue it against any public authority or any particular individual. However, in certain cases, the court may allow other people to file a writ of habeas corpus on behalf of the detained person, who is their friend or relative.

Mandamus

The term mandamus means ‘ we command ‘ . It is generally a command which is issued by the court to a public servant asking him to perform his duty, which he has failed to do. The writ of mandamus can also be issued against a corporation, an inferior court or a government body for the same reason they failed to perform their official duties.

The essential requirements of the mandamus writ petition for the court were described by the supreme court in the case of MANI SOBHRAJ JAIN VS STATE OF HARYANA (1977(1) SCC 486) [2]

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.

Some circumstances under which writ of mandamus cannot be filed

  1. The writ of mandamus cannot be issued against the president of india and the governor of state. Under article 361 of the india constitution, the president and the governor of state do not have to answer to any court for the performance of their official duties.
  • The writ of mandamus cannot be granted against a private individual or private organization.
  • The writ of mandamus cannot be issued against the judges of the high court and the supreme court for the non-performance of their duties in a judicial capacity.

Who can file the writ of mandamus?

Any person – be it an individual or a private body can file for the court petition under the writ of mandamus, so long as they have legal rights in the concerned matter to do so.

Certiorari

The term certiorari means ‘certified or to be informed’. It is generally issued by a higher court to a lower court either to transfer the pending case to a higher authority or quash the judgement passed. In the year 1991, the supreme court ruled that the writ of certiorari can also be issued against administrative authorities if their judgements violate the rights of an individual.

  • The absence of their jurisdiction.
  • Exceeds their jurisdiction.
  • Fails to make use of their jurisdiction.

In the case of HARI VISHNU VS AHMED ISHAQUE, 1995, the court held that an error in the decision or determination itself may also be amenable to a writ of “certiorari” if it is a manifest error apparent on the face of the proceedings .

In another judgment, case of STATE OF UP vs MOHAMMED NOOR (AIR 1958 SC 816) [4], 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.

Certiorari can be issued under the these conditions

  1. If the judgement given by a lower court contains an error.
  • There must be a court that has the authority or has a legal right to act judicially .
  • If the judgement by any inferior court is against the laws mentioned under the constitution.

Prohibition

The term prohibition simply means ‘to forbid’ the writ of prohibition can only be issued against judicial and quasi-judicial authorities. This writ is generally not available against administrative authorities and private individuals.

It can be issued against a lower court or by a superior court to forbid the act which is performed outside its jurisdiction at any stage of its proceedings.

Prohibition writ for the court is issued to stop or put a stay on the power exercised by the authority and is commonly known as stay order.in india, a writ petition is issued against the proceedings going on in lower courts and in such proceedings, the lower court’s powers. Once the writ of prohibition is allowed either by the supreme court or in high court the proceedings of the lower cort come to an end.

The supreme court in the case of GOVIND MENON vs. UOI (AIR 1967 SC1893)[3] laid down the conditions in which one can issue the writ of prohibition. The conditions by the court are.

  • When there is an excess of jurisdiction,
  • When there is an absence of jurisdiction.

Quo-warranto

The term quo-warranto means ‘by what authority or by what warrant’. It is generally issued by a court to inquire about the legality or under what authority he is holding that office. It prevents the illegal holding of a public office by any person.

Ex- there is a vacancy in the government and by giving a job to a 65-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 [6] laid down the requirements of the petition of Quo-warranto which are as .

  • 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.

The writ of quo-warranto cannot be issued against :

  1. It cannot be issued against the chief minister of a state for non-performance of his constitutional duties
  • It cannot be issued against a minister to remove him from his position.

Conclusion

Our constitution provides us with various rights. Some of the most important rights provided by our constitution are Fundamental rights. As the name suggests, these rights are essential for individual development. Since rights are available, their infringement is possible. So in order to protect these rights, we have five types of writs which a person can file before a High Court or the Supreme Court under Article 226 and Article 32 respectively.

References

https://indiankanoon.org/doc/82502367/

https://indiankanoon.org/search/?formlnput

https://www.myadvo.in/blog/how-to-file-writ-petition-in-court/

https://byjus.com/free-ias-prep/types-of-writs-in-india/

Author: Mohini nihal, National law university Jabalpur (M.P)

Editor: Kanishka VaishSenior Editor, LexLife India.

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