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Overview of Writ Petition

A writ can be compared to a written order issued by the court with more power. It's given to a court with a lower jurisdiction or to a person if any citizen's fundamental rights are violated. A writ may be issued by the Supreme Court of India as per Article 32 of the Indian Constitution. The High Court (HC) also has this authority under Article 226. Such writs are issued in opposition to any lower court/individual's judgment as per their jurisdiction. Both the articles outline the type of Writ, the steps to be taken & the requirements that the petitioner should meet in the event that any fundamental rights have been violated.

Why it is required?

A writ petition is filed usually by a person when his/her fundamental rights have been violated and injustice has been done to him/her. It is an important concept which has been enshrined in the Indian Constitution. A writ petition is required:

  • To help people to approach the judicial authority for the protection of their rights which have been violated.
  • It is an alternative remedy available to a person who has been falsely accused.
  • A writ is filed to ensure that justice has been delivered to an aggrieved person.

Who is eligible to apply for a writ petition?

Any person who has been held unlawfully can approach the court to file an application for the writ. In case a person has been illegally detained and he/she is unable to file a writ, a friend or a relative can file on his/her behalf when a writ of habeas corpus is being filed. Under this petition, the applicant requests the court to review the situation of the prisoner and decide whether he/she has been detained illegally or not. The prisoner is brought before the court for hearing and deciding his/her status of detention. There are certain exceptions to the writ of habeas corpus.

How to file a writ petition?

There is a specific procedure to file a writ petition before the respective court which needs to be followed by a person who wishes to file a writ petition. It is as follows:

The aggrieved person needs to approach the advocate or a law firm along with necessary necessary papers like identity proof, pictures and other necessary details, etc.

The aggrieved person must inform all the details of the event when his/her rights were violated to the advocate who has been appointed by such person. The advocate will consider all the stated facts and draft a writ petition to be filed before the Hon’ble Court.

The draftsman should clearly mention the personal details such as the name and address of the aggrieved party along with the details of the event when his/her right was violated.

Once the petition has been drafted and reviewed by the aggrieved person, the advocate files the same to the court having competent jurisdiction.

The court considers the petition and if the judges allow the writ petition, they set a hearing date on which the parties will be heard. It is important to send a notice of the same to the opposite party in a reasonable time period before the date of the hearing.

After the court considers all the necessary papers and hears both parties, the court passes a judgement and grants relief to the aggrieved party, if it deems necessary.

Different types of Writ

There are several writs which have been mentioned in the Indian Constitution.

A person can file a writ petition under Articles 32 & 226 of the Indian Constitution. Both the courts have different jurisdictions pertaining to the writ. Under Article 32, an individual can approach the Supreme Court for violation of fundamental rights mentioned under Part III of the Indian Constitution.

The types of writs in India are as follows:

Habeas Corpus Writ

The literal meaning of Habeas Corpus is "to have a body". It's one of the most vital necessary papers for the protection of the liberty of an individual. Whenever a person feels that he/she has been illegally detained, he can ask the court to issue a writ of habeas corpus.

If the court considers such a writ, the court directs the detaining authority to appear in court with the person who has been detained to decide whether such detention is legal or not. The court can order to release the person who has been detained if it has been found during the investigation that the person was illegally detained. This writ protects the person who has been detained without any justified reasons. The person who has been arrested and the person who is assisting the arrested person can seek remedy under this writ. This writ was developed a long time ago and is available in many countries. It is an effective legal tool for the protection of the freedom of an individual.

Writ of Mandamus

The literal meaning of the writ of mandamus is “we command”. Under this writ, a higher court directs the subordinate agency or public authority to perform an act within their jurisdiction. This writ is issued to make sure that the agencies fulfill their duties towards the public and to uphold the private rights of an individual held by the government. The writ of mandamus is issued to order a public authority to perform a duty which has been neglected. If the concerned officer or authority fails to perform the assigned duties, the writ is imposed on them to fulfill their obligations and public duties.

A tribunal can also receive a writ of mandamus issued by the court to perform certain actions which it refused to perform before.

The Certiorari Writ

The literal meaning of certiorari is “certified”. Under this writ, the Supreme Court is empowered to transfer a case to a higher authority to review the decision which has been made by the lower court or a tribunal. It is usually issued to overturn the decision passed by a lower court or tribunal. This writ is issued when any quasi-judicial or judicial body:

  • When a tribunal or lower court acts in an improper manner,
  • Acts exceeding their jurisdiction,
  • Fails to make the proper use of their jurisdiction.

The main aim behind issuing this writ is to correct of a legal mistake which is clearly noticeable from the record. It can also be granted to the body when it has disregarded the principles of natural justice.

The Prohibition Writ

The writ of prohibition is also called a stay order. This writ is issued when a subordinate court or an authority tries to perform an act beyond the powers given to them. The writ of prohibition is issued by the Supreme Court to a tribunal or a lower court when such a court or tribunal tries to carry out an act beyond its scope and jurisdiction.

The Quo-Warranto Writ

The literal meaning of this writ is “by what justifications?”. Such a writ is issued to prevent a person from exercising his/her right to hold a public office illegally.

How do the Writ Jurisdiction differ between the Supreme Court and the High Court?

Under the provisions of the Constitution of India, both High Court and Supreme Court have been granted the power to issue the writs under Articles 32 and 226. There are several differences between the writ jurisdictions of the two courts. These are as follows:

Purpose

A person can approach the Supreme Court to issue a writ when his/her fundamental rights have been violated. Whereas, a person can approach the High Court when his/her legal or fundamental right has been violated.

Territorial Jurisdiction

The Supreme Court has the authority to issue a writ against the government or a person who is in the territory of India whereas, a High Court can only issue a writ against the government or a person who lies in the jurisdiction of such a High Court.

Power

The Supreme Court has no authority to refuse its power to issue a writ whereas a High Court has the authority to refuse its power to issue a writ.

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Format of a Writ (High Court)

WRIT OF HABEAS CORPUS

In the High Court of Judicature at XYZ(Name of the state)

Writ Petition No._______

Under Article 226 of the Constitution of India

I, Mr. ABC s/o Mr. XYZ aged about 25 years residing at Y-12, DC Colony, Delhi through Mr. DX s/o Mr. OP aged 30 years as my next friend.

 .........PETITIONER

 VERSUS

  1. State Government, Home Department, XYZ(Name of the state)
  2. District Magistrate (Name of the city)
  3. Superintendent of Jail (Name of the city)

....RESPONDENTS

To

The Hon’ble Chief Justice and His Companion Judges of the aforesaid Court.

The petition of the petitioner above named respectfully showeth:

  1. That the petitioner is a resident of Y-12, DC Colony, Delhi and is a law abiding citizen of India.
  2. That on 21st day of March, 2022 (Date on which the arrest was made) was arrested by the police officers and detained for a time period of 4 months in the DD Jail, wherein the superintendent is the Respondent no. 3. Such arrest was made by an order which was passed by the Respondent No.1 on 20th day of March, 2022 under the National Security Act of India. A copy of the order dated 20th March, 2022 passed by Respondent No.1 has been attached and marked as Annexure 1.
  3. That, the day on which the petitioner was arrested and detained in DD Jail, no grounds of detention were informed to the petitioner by Respondent No. 3.
  4. That the petitioner was informed of his grounds of arrest and detention after 8 days of being arrested.
  5. The report on the ground of detention was provided to the petitioner in a language which was not understood by the petitioner.
  6. The father of the petitioner is interested to get the petitioner released from detention.
  7. Thus, the order passed by the Respondent No. 1 dated 20th March, 2022 is arbitrary, and illegal and has been passed with a lack of jurisdiction due to the following reasons:
    1. The petitioner was informed about the grounds of detention after a long delay.
    2. The detention of the petitioner is infringing the fundamental right of right to life provided under Article 21 of the Indian Constitution.
    3. The ground on which the petitioner has been detained was informed in the English language which the petitioner is unable to understand.
    4. The grounds on which the petitioner has been detained are vague and arbitrary.

PRAYER

It is respectfully prayed that this Court may grant the writ of Habeas Corpus to the Respondents 1 to 3 by quashing the challenged order and passing an order to release the petitioner along with the grant of compensation for any loss to the petitioner.

Name of the Petitioner

Signature

Frequently Asked Questions

The person whose fundamental or legal right has been violated by the state can approach the court to file a writ petition. A public-spirited person can also file a writ petition under the concept of Public Interest Litigation to protect the general public whose rights have been infringed even if it does not affect any right of the person who is filing the petition.

A writ is an order of the court to a person to do an act mandatorily or abstain from doing something.

Under the Articles of the Indian Constitution, the High Court and the Supreme Court has the power to issue a writ. Under Article 32, the Supreme Court has the power and under Article 226, the High Court has the power to issue writs.

A writ is issued generally against the government, a judicial or quasi-judicial body, a public authority or any institution that discharges public function.

In general, a writ cannot be issued against a private person. A writ is issued against a public body or the body which discharges any public duties. But a writ of habeas corpus can be issued against a private body. The competent courts can also issue a writ against a private person if such a person is on public duty.

As per the prevailing laws in India, there is no time period mentioned in the laws for filing a writ petition. In various landmark judgements delivered by the courts, the judges have asked the aggrieved parties to file a writ petition within a reasonable time period from the day on which the cause of action arose. The courts have also asked the parties to file a satisfactory explanation for the delay in filing a writ petition.

Indian courts through various judgements have held the power to entertain matters of a writ under specific circumstances even if the parties have the alternative option of dispute resolution by way of arbitration. Some of such circumstances are as follows:

  • When the matter involves the enforcement of a fundamental right;
  • When the matter involves an infringement of the basic principles of natural justice;
  • When the matter involves an act committed by a person ultra vires the power provided to such person.

Arbitration is a dispute resolution mechanism used to solve disputes arising out of private contracts between parties. As a writ can be issued against a public body, it cannot be issued against an arbitral award. Under rare circumstances, an Indian court can issue a writ when the party has no remedy left or there is bad faith involved between the parties.

  • The Supreme Court can issue a writ or order in matters involving a violation of fundamental rights mentioned under Article 32 in Part III of the Indian Constitution.
  • The High Court can issue directions, writs and orders with matters concerning fundamental rights than have been mentioned in Part III of the Indian Constitution or for other legal rights.
  • The basic difference between both the Articles is that under Article 32 of the Constitution, the Supreme Court of India has the power to issue writs for the enforcements of fundamental rights whereas the scope of writs under Article 226 is broad as compared to Article 32 as a High Court can issue writs with matters related to violation of fundamental and legal rights as well.

The basic difference between prohibition and certiorari is that the writ of prohibition of issued in cases where the subordinate court is dealing with a matter outside its jurisdiction and the court is required to cease the ongoing proceedings related to that case. Whereas a writ of certiorari is issued when a subordinate court passes a decision without having jurisdiction after such a matter has been decided.

The purpose for filing a writ petition is as follows:

  • It is filed when there is a need for enforcement of fundamental and legal rights.
  • It is filed to get a judicial review of the actions of the administration.

The significance of filing a writ petition is as follows:

  • It is a quick & effective remedy for the violation of one’s fundamental rights.
  • The court is empowered to issue orders, writs and directions for the enforcement of rights.
  • Writs provide a way to seek justice if there is a violation of rights.

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