HOW TO FILE A WRIT PETITION

The Indian Constitution provides for certain rights to every citizen in case their fundamental rights are violated. One such right is the option to file a writ petition when the fundamental rights of a citizen are violated by any state or government agency. This blog lays down the different kinds of writs in India and how to file a writ petition in the high court or Supreme Court.

Writs in ancient times were used to depict a ‘Composed Direction of the King’ which were meant to notify the village tenants about the new directions for the land revenue. Writs in the Indian constitution were embraced as such from the English law, but with a slight difference that it can be accessible by any individual to exercise or claim his right against the order of the courts when served injustice or impugned, as the case may be. 

What Is A Writ Petition?

A Writ is a legal document that could be a formal written order issued by a body with judicial jurisdiction; this body is mostly a court.

A Petition is a formal written request, typically one signed by many people, appealing to authority in respect of a particular cause.

Any filing that a party or an individual makes with an appeal in the court in order to secure a speedy review or trial of the concerned issue is called filing a Writ Petition.

A writ petition can be filed by any citizen of India with a State High Court or Supreme Court in case their fundamental rights are affected or violated by the actions of any state or government authority or body. The court issues a writ in the form of formal written order, warrant or direction to such authority or body to implement the correct remedy and rectify such violation of fundamental rights. 

A writ petition can be filed under Article 226 with a High Court and Article 32 with the Supreme Court. The process is mostly the same for filing a writ in the high court or Supreme Court, with certain exceptions as the jurisdiction of the High Court is wider and extends to constitutional rights as well.

Why a Writ petition is required?

Writ petition is generally filed in contravention of rights or injustice is served to any individual/aggrieved. It is a remedial measure provided by the constitution against the authority regulating the law and order in the country for the following reasons:

1. To help citizens defend their rights against court orders.
2. To provide an alternative to the aggrieved when impugned order is not objected by the appeals made to the authorized higher authorities in the legal system.
3. To make sure justice served but not justice denied.

Types of Writs In India

There are five types of writs in India as provided under Article 226 and 32 of the Indian Constitution. Any person whose fundamental rights or constitutional rights are violated must hire a lawyer to know the kind of writ applicable to their matter.

Habeas Corpus

Habeas corpus or “let us have the body” is a kind of writ filed to determine whether the person is illegally detained or not. If a person is found to be in illegal detention by the police, the court issues a writ for the release. A writ of habeas corpus can be filed in the following cases:

• When a person is in custody but is not brought before the Magistrate within 24 hours of the arrest.

• When the person who has been arrested is innocent and has not violated any law.

• The arrest was made by unconstitutional means.

• The person is detained for mala fide reasons with the intention to harm the person.

The person who has been detained can file a habeas corpus writ petition, however, when such person is unable to do the same, a family member, relative or friend can file a writ petition in high court. 

Mandamus

Mandamus or “we command” is issued when an order needs to be assigned to a lower court or a public officer that has failed to perform an official duty that should have been performed in the first place. A writ petition for mandamus can be filed against the following:

• A President/governor of the state

• Current Chief Justice

• An individual/private institution

• Private contractor

Under this, a person can file a mandamus writ petition against even the president of the country, if he/she thinks that the president was unable to perform the official duties. Consulting lawyer is important before proceeding with filing a writ of mandamus.

Prohibition

Prohibition means “to prohibit”. It is filed by a higher court to prohibit the lower court if it is deemed that the task performed by the lower court is over and above its rights. A writ of prohibition can be filed either when there is an excess of jurisdiction or when there is an absence of jurisdiction.

Certiorari

Certiorari means ‘to be certified’. This kind of writ can be filed by the Supreme Court to a lower court or Tribunal to order a transfer of the matter to a High Court or itself. A person can only file a writ of certiorari when the following conditions are met:

1. There must be a court, tribunal or an officer that has the legal authority to determine the question with a duty to act judicially.

2. The court, tribunal or officer in question must have acted in excess of or in absence of or in excess of the judicial authority vested by law.

3. The order passed could be against the principles of natural justice. Or it could contain an error of judgment in appreciating the facts of the case

Quo Warranto

Quo-warranto means ‘by what authority’ or ‘on whose authority is one holding a public office’. This writ is issued against a government official or public post to challenge a person holding a post in the office. This kind of writ can be filed when the following conditions are met: 

1. The person, against whom the writ is filed must hold a public post.

2. There must be a violation of law in holding this post

3. 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.

How To File a Writ Petition? 

The petition for filing the right type of writ must be drafted with the help of lawyer. The lawyer would then file the petition with the High Court or Supreme Court, as applicable.

Once the petition is filed, a date of hearing would be set. The court, on the hearing date, would either accept or reject the petition, and in case the petition is accepted, the court would issue a notice to the other party regarding the same. Another date of hearing would be set for both the parties to appear before the court and the court would grant relief to the applicant after considering all facts and circumstances.

The process to file a writ petition in high court is fairly simple, but it is important to establish a valid case and file the correct writ with the court to ensure justice.

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

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

1. Purpose: The Supreme Court issues a writ to enforce fundamental rights. Whereas, the high court issues a writ to enforce the fundamental rights and also for any other purposes.
2. Territorial Jurisdiction: The Supreme Court issue a writ against any person or government in the Indian territorial jurisdiction. Whereas, the high court can issue the writ only against the person or the government within its jurisdiction. The high court can issue a writ only outside the jurisdiction if the cause of action has arisen from the inside of the jurisdiction.
3. Power: The Supreme Court cannot refuse to execute its power in issuing a writ. Whereas, the high court can refuse the power to issue a writ.

To Conclude:

The concept of Writ petition was brought in the Consitution of India to help a victim if he/she is deprived of any right or injustice made to him or to help him fight against any decision taken by the last legal authority. To file a Writ petition, the person has to either take the help of a legal advisor or hire a civil lawyer to file a petition on his behalf.