WRIT PETITIONS IN INDIA

A Writ is a written order issued by a court of higher authority. It is issued to a court of lower jurisdiction or to any individual if any violation is made with the fundamental rights of any citizen. As per the Indian Constitution, the Honorable Supreme Court holds the right to issue writ under Article 32 and High Court under Article 226 against the decision of any court/individual lower according to their jurisdiction. Both the Articles specify the types of Writ, rules and the procedures to follow by the petitioner when any of the fundamental rights as specified is violated. An individual/aggrieved party can file a Writ petition to a higher level of court against a lower court’s order/decision, which can be civil or criminal depending on the situation.

WHY IS A WRIT PETITION REQUIRED?

A writ petition is usually filed when someone’s rights have been violated or when they have been wronged in some way. 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

HABEAS CORPUS

The literal meaning of the term Habeas Corpus means, ‘you may have the body of.’ You can file this type of writ petition when a person is illegally detained. This means if the court finds out that the person is illegally detained, and then it can order for the release of that person. Supreme Court or High Court can issue this writ against both private and public authorities.

For example, if a person is to be brought before a magistrate within 24 hours, or if he is arrested for no cause or the reason for his detention is unreasonable, a writ petition of Habeas Corpus for his release can be filed.

In most cases, the person who is being held illegally files a petition of habeas corpus. Anyone can start the writ procedure for a petition of Habeas Corpus by filing and issuing it against any governmental authority or individual. The court may, however, enable others to seek a writ of habeas corpus on behalf of an imprisoned person who is a friend or relative in specific circumstances.

MANDAMUS

Mandamus is a Latin word meaning ‘we command’. Mandamus is a court writ in which a higher court commands a lower court, tribunal, forum, or other public authority to perform any act that falls within their jurisdiction.

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

PROHIBITION

A stay order is a prohibition writ for the court that is used to suspend or halt the authority’s power from being exercised. In India, a writ petition is issued against the proceedings going on in lower courts and in such proceeding; the lower court is exceeding its powers. The lower court’s procedures come to an end once the writ of prohibition is granted by the Supreme Court or the High Court.

The Supreme Court in the case of Govind Menon vs. UOI (AIR 1967 SC 1893) 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, or
  • When there is an absence of jurisdiction

A Writ of Prohibition, for example, can be filed with the Supreme Court to prevent any High Court from making any decision that is not within the High Court’s power.

CERTIORARI

A Writ of Certiorari is a petition to issue an order or command against a lower authority’s judgement or order where it is established that the lower authority has violated the laws and principles of natural justice in making the decision. In a nutshell, the petition asks the lower court for the records or facts upon which any summons or order was issued. On the satisfaction of facts /records placed by the lower authority, the decision shall be accepted or restricted.

The Supreme Court determined that certiorari can be issued even against administrative agencies that impair individual rights. It can’t be used against legislators or private individuals or organizations.

For instance, A Writ of Certiorari can be filed by any aggrieved person against the decision of any District Court to any High Court through which the decision gets nulled.

QUO WARRANTO

Writ of quo warranto means a writ that you can be issued to restrain a person from acting in the capacity of public office to which he/she does not have the entitlement. The term Quo-Warranto means, ‘by what authority’ or, ‘on whose authority is one holding a public office’. For instance, there is a vacancy in the government and by giving a job to a 63-year-old person, they fill that vacancy. However, because the retirement age is 60, a writ of quo-warranto can be filed to remove such a person from public office.

The Supreme Court in the case of University of Mysore vs. Govind Rao laid down the requirements of the petition of quo-warranto which are as follows:

  • 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.

REFERENCES

  1. Govind Menon vs. UOI AIR 1967 SC 1893
  2. University of Mysore vs. Govind Rao 1965 AIR 491
  3. All about Writ Petition in India, TaxReturnWala, https://www.taxreturnwala.com/writ-petition-india/
  4. What is Writ Petition? How can I file a Writ Petition in India? , LexLife India, https://lexlife.in/2021/08/03/what-is-a-writ-petition-how-can-i-file-a-writ-petition-in-india/

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