Understanding Writs and Writ Petitions in India: A Comprehensive Guide

When it comes to protecting fundamental rights and seeking justice, the Indian Constitution provides its citizens with several legal remedies. One such powerful tool is the writ petition, filed in the Supreme Court or the High Courts. In this article, we will explore the concept of writs, the different types of writs available, and how writ jurisdiction differs between the Supreme Court and the High Courts.

What is a Writ?

A writ can be described as a formal written order issued by a higher court to a lower court or an individual when a citizen’s fundamental rights have been violated. The Indian Constitution allows the Supreme Court to issue writs under Article 32, while the High Courts have the authority to do so under Article 226.

Writs can be issued against the judgments of lower courts or individuals, depending on their jurisdiction. Both articles outline the types of writs, the necessary steps, and the requirements that the petitioner must meet in case of a violation of fundamental rights.

Why is a Writ Petition Required?

A writ petition is generally filed when someone’s fundamental rights have been violated or when they have suffered injustice. It serves as a corrective measure provided by the Constitution against the country’s body responsible for maintaining law and order. The primary reasons for requiring a writ petition are:

1. To help people defend their rights against judicial orders
2. To ensure that the higher authorities of the legal system provide an alternative to the aggrieved in case of an accusation
3. To guarantee that justice is delivered and not obstructed

Who Can File a Writ Petition?

As a basic rule, a person who is allegedly held unlawfully can file a writ petition. However, in some specific circumstances, someone else—a friend or relative—can apply for a writ of habeas corpus on behalf of the person being held. The petition simply asks for the prisoner to be brought before the court so that it can examine the evidence and determine whether the accused is being held legally or unlawfully. The possibility of the detainee being held incommunicado is another reason why the prisoner should not use Habeas Corpus. There are limitations to the use of habeas corpus.

Different Types of Writs

The Indian Constitution includes various types of writs. Articles 32 and 226 contain two distinct but related provisions regarding writ jurisdiction for the Supreme Court and High Court. The constitutional remedy against the violation of fundamental rights is provided by Article 32. The remedy specified in this article applies only to violations of fundamental rights.

1. Habeas Corpus Writ

Habeas Corpus, a Latin term meaning “Let us have the body,” is considered the most crucial writ for individual liberty. An individual can request the court to issue this writ when arrested. Through this petition, the court directs the detaining authority to present the arrested person before the court so that it can determine whether the arrestee was held legally. If the investigation reveals that the person was held against the law, the court may issue orders for the person’s release.

The Habeas Corpus protection safeguards the arrestee from being held in unjustified or unsupported detention. Both the arrested person and someone assisting the prisoner can seek this remedy. Developed in England, the Habeas Corpus system has been adopted by many other countries and has proven to be a vital legal tool for protecting individual freedom from arbitrary state action.

2. Writ of Mandamus

Mandamus, a Latin word meaning “we command,” is an order from a higher court to a lower court, public authority, or law enforcement agency to perform an act within its jurisdiction. It ensures the fulfillment of public duties and upholds private rights that the government holds. A writ of mandamus is typically issued to a public official to carry out a duty that they have so far neglected to perform.

The public holds public servants accountable for fulfilling their legal obligations. If the official or authority fails to fulfill their duties, a writ of mandamus may be imposed on their behalf, warning them about their unfulfilled public responsibilities and ordering them to complete them.

A tribunal may also receive a mandamus to compel it to carry out the duties it has refused to perform. It may be issued in cases where a specific legal right is involved without requiring a separate means of enforcing that right.

3. The Certiorari Writ

Certiorari, a Latin term meaning “certified,” empowers the Supreme Court to request a critical review of a decision made by a lower court or tribunal by issuing a writ of certiorari. The Supreme Court issues this writ to overturn a previous decision made by a lower court. This writ can only be used after the order or decision has been made. A writ of certiorari can be issued to a judicial or quasi-judicial body on the following grounds:

• To correct the jurisdiction when a lower court, authority, or tribunal acts improperly, exceeds its jurisdiction, or fails to exercise it
• To rectify a legal error that is apparent from the record and caveat
• To address a violation of the principle of natural justice

4. The Prohibition Writ

Also known as “Stay Order,” the Prohibition writ is issued when a lower court or other authority attempts to exceed its boundaries or exercise its powers improperly. The Supreme Court issues this writ to prevent a lower court or tribunal from carrying out an action that is not within its jurisdiction.

5. The Quo-Warranto Writ

Quo-Warranto, which means “by what authority?” in Latin, is issued to prevent someone from exercising their right to hold a public office unlawfully. This writ aims to stop anyone from usurping or occupying a public office illegally. The accusation is that the individual is exercising public office without legal permission.

A quo warranto writ or legal action seeks to demonstrate the specific person’s detention under which authority.

How Does Writ Jurisdiction Differ Between the Supreme Court and the High Court?

The Indian Constitution empowers the Supreme Court and the High Court to issue writs under different articles, such as Article 32 and Article 226. There are a few differences in the writ jurisdiction between the two courts:

1. Purpose: The Supreme Court issues a writ to enforce fundamental rights, while the High Court issues a writ to enforce fundamental rights and for any other purposes.
2. Territorial Jurisdiction: The Supreme Court can issue a writ against any person or government within the Indian territorial jurisdiction, whereas the High Court can issue a writ only against a person or government within its jurisdiction. The High Court can issue a writ outside its jurisdiction only if the cause of action arises from within its jurisdiction.
3. Power: The Supreme Court cannot refuse to exercise its power in issuing a writ, while the High Court has the discretion to refuse the power to issue a writ.

How to File a Writ Petition: Step-by-Step Guide

1. Identify the appropriate court: Determine whether to file the writ petition in the Supreme Court or the High Court, based on the jurisdiction and the nature of the rights involved.
2. Prepare the writ petition: Draft a well-structured writ petition that includes all the necessary details, such as the petitioner’s name, address, and occupation; the respondent’s name and address; a statement of facts; the grounds for relief; and the specific writ sought. Ensure that the petition conforms to the procedural requirements and guidelines established by the respective court.
3. Affidavit: Attach an affidavit to the writ petition, which is a sworn statement by the petitioner, verifying the contents of the petition and declaring that the information provided is true and accurate.
4. Attach relevant documents: Gather and attach all supporting documents, such as orders, judgments, or any other evidence that substantiates the claims made in the writ petition.
5. File the petition: Submit the writ petition, along with the affidavit and supporting documents, to the court’s registry. Pay the requisite court fees and obtain a receipt.
6. Serve the notice: Once the court admits the writ petition, serve a copy of the petition on the respondent as per the court’s directions.
7. Attend the hearing: The court will schedule a hearing date for the writ petition. The petitioner or their legal representative must attend the hearing and present their case before the judge.
8. Obtain the court’s order: After hearing both parties, the court will issue an order granting or denying the writ petition. Obtain a certified copy of the order for your records.

Conclusion

A writ petition can be filed before any High Court, in whole or in part, whose jurisdiction the cause of action arises, as per Article 226. Whether or not the authority the writ petition is filed against is located within the territory is irrelevant. The High Court has broader authority to issue writs compared to the Supreme Court. Are you interested in knowing the specifics of how to file a writ petition? It is always better to seek the advice of the best legal service provider or attorneys, who will assist you in filing them without missing any crucial points.