Filing a writ petition in India

The Constitution of India ensures several rights to Indian citizens. These rights are contained under Part III of the Constitution as Fundamental Rights. However, it is insufficient to grant these rights to citizens of India by only asserting that they are guaranteed under the Constitution. And, hence these rights must be safeguarded.

To protect the rights guaranteed under the Indian Constitution, Articles 32 and 226 of the Constitution of India expressly grant the right to appeal to the Supreme Court and the High Court, respectively, through suitable procedures.

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Meaning of Writ Petition

A writ is an order issued by a higher court to a lower court or courts demanding them to do or refrain from doing something. And a writ petition is an application presented to the court asking for the issuance of a particular writ.

Under the Indian legal system, a person can file a writ petition in the Supreme Court or the High Court under Article 32 and Article 226 of the Indian Constitution if his/her Fundamental Rights are violated. A writ petition can also be filed in the Supreme Court if the High Court or other lower courts do not make appropriate decisions.

There are five types of writs as provided under the Indian Constitution:

  1. Habeas Corpus
  2. Mandamus
  3. Prohibition
  4. Certiorari
  5. Quo Warranto

We have defined these writs below. But you can learn more about them on our dedicated law note: 5 Types of Writs Under the Constitution – Articles 32 and 226

1. Habeas Corpus

Habeas Corpus means ‘to have the body‘. It is an order to bring the detained person to court. A writ of Habeas Corpus comes into action when a person is detained illegally or unlawfully.

Essential Conditions of the Habeas Corpus Writ

The writ petition of Habeas Corpus can be filed in the Supreme Court and the High Court under the following circumstances:

  • Despite being detained, the person has not been produced before the magistrate within 24 hours of the arrest or warrant being issued.
  • There was no violation of the law on the part of the person in custody.
  • The arrest was made under the provisions of law that are against the Indian Constitution or are unconstitutional.
  • A person is arrested with malafide intent or with the intention to harm such a person.

Related: Rights Given to an Arrested or Accused Person in India

2. Mandamus

Mandamus means ‘a command‘. Under the writ of Mandamus, the court can compel an authority to do his duties, exercise his power, or prevent him from doing an act.

Essential Conditions of the Mandamus Writ

The Supreme Court has outlined the necessary conditions for the writ petition of Mandamus in Mani Shobrej Jain vs State of Haryana (1977). Accordingly, the essentials of the Mandamus writ petitions are:

  • A recognised legal right must be there.
  • The legal right should be such as enforceable by the court.
  • Enforcement of such right must be the duty of private authority, public authority, corporation or government.
  • Such duty of the private authority, public authority, corporation or government must be of a public nature.

Further, the following cannot be subject to a Writ of Mandamus:

  • A private organisation
  • The President or the state government
  • The Chief Justice in office
  • To carry out a private agreement

3. Prohibition

Prohibition means ‘to forbid‘. It forbids the lower court from exercising authority over matters with no jurisdiction.

The writ petition of prohibition can be filed in the court only under two conditions, i.e., the excess or the absence of the jurisdiction.

4. Certiorari

Certiorari means ‘to certify‘. Under the writ of Certiorari, a higher court orders a subordinate court to transfer the ongoing matter to a higher authority or overturn the already passed judgement.

Essential Conditions of the Certiorari Writ

The writ petition of Certiorari can be filed in the Supreme Court and the High Court under the following circumstances:

  • Existence of a court that is qualified to exercise its judicial powers.
  • The decision by the inferior court violates the provisions of the Indian Constitution.
  • The decision by the inferior court includes errors.

5. Quo Warranto

Quo warranto means ‘by what authority‘. The Writ of Quo Warranto is issued to determine the legitimacy of a person’s claim to a public office.

Essential Conditions of Quo Warranto Writ

The writ petition of Quo warranto can be filed in the Supreme Court and the High Court under the following circumstances:

  • When a public office (established by law or the Constitution) is held by a private person who lacks the necessary authority
  • The character of the public office must be substantive. The duties associated with the office must be of a public nature.
  • The intruder whose authority is being challenged must be in a position at the time of petition filing.
  • A writ of Quo Warranto may be filed against someone who loses their qualification. It does not matter that the person was qualified earlier.

Who Can File the Writ Petition?

Any person whose Fundamental Rights, as listed in Part III of the Indian Constitution, are violated may file a writ petition. It offers a defence against the violation of the Fundamental Rights of a person. However, a writ petition of Habeas Corpus can also be filed by the friend or relative of a person detained unlawfully.

How to File a Writ Petition in the High Courts or the Supreme Court?

A specific procedure that is followed to file a writ petition in the High Courts and the Supreme Court is:

  1. The first step in filing a writ petition is drafting the petition. An advocate must be hired to help in the overall procedure of drafting and representation in the court. The draft comprises the name and address of the aggrieved person, along with the facts that led to the violation of Fundamental Rights.
  2. The petition can be filed at the filing counter in court after the drafting.
  3. The court will then schedule a date for the hearing; on that date, it accepts the petition and sends a notice to the other party.
  4. Then, the court reschedules the hearing. This subsequent hearing takes place in the presence of the other party to whom the notice was sent if he decides to appear in court.
  5. Finally, the court hears and considers the submissions made by both parties and orders for relief accordingly.

Can a Writ Petition Be Filed on the Writs Apart From Those Mentioned in the Constitution?

Apart from the writs mentioned in the Indian Constitution, a writ petition can also be filed in court for a civil or criminal act. When the cause of action relates to criminal law, such as bail, a criminal writ petition may be filed. And, when the cause of action relates to a civil wrong, such as taxes, a civil writ petition may be filed.

Conclusion

A writ petition is a request to the court to issue a specific writ. Apart from the writs mentioned in the Constitution of India, it can also be filed for any civil or criminal offence whenever the necessity for a court to direct or order something is perceived. A writ petition may be filed by anyone whose Fundamental Rights, as listed in Part III of the Indian Constitution, have been violated. The proper procedure for filing writ petitions in the Supreme Court and the High Courts must be followed.

Subhashini Parihar
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