What is a Writ Petition & How do you file one?

17 Mar 2021  Read 1640 Views

The term writ has not been defined in the constitution. In common parlance, a writ may be defined as an order passed by the court directing an entity or individual to act in a particular way. Derived from British jurisprudence, a writ was basically a written letter issued to someone to do some particular act. Thus, the very concept of writ petitions can be said to have originated in the English Judicial system. 

Indian Context

In context of the Indian constitution, writs are issued by the High Courts and Supreme Court when they are approached for violation of Fundamental Rights guaranteed under Part III of the constitution. The Constitution has placed the responsibility of protecting fundamental rights of citizens on the High Courts and the Supreme Court. Therefore on violation of one’s fundamental rights, one has the authority of getting his or her rights enforced by means of filing writ petitions either at the High Court under article 226 or the Supreme Court under article 32. When writ petitions are filed under article 32, one is said to avail the fundamental right to constitutional remedies. The writ petition may be a criminal writ petition or a civil writ petition depending on the nature of the subject matter of the dispute. 

Kinds of Writs which may be issued

The writs which are issued as a consequence of such petitions have been broadly categorized in 5 categories. These include the writ of Habeas Corpus, Mandamus, Quo Warranto, Prohibition and Certiorari. These writs have been discussed as under-

1. Habeas Corpus

A writ petition seeking the writ of Habeas Corpus is filed to get a person released from unlawful confinement. The term Habeas Corpus itself means “you may have the body”. This writ calls upon a person who has detained another to bring the detenu to court and provide the grounds for such detention. It has been upheld in the case of Sunil Batra v. Delhi Administration that the burden of justifying the detention is on the detaining authority. 

2. Mandamus

Mandamus refers to a command issued by the court asking a public authority to perform its duty. In Pramod Kumar v. U.P.S.E.S Commission, the court clarified the rational behind the writ of mandamus. It was upheld that a writ petition seeking mandamus may be filed when the non-performance of a duty by the public authority leads to violation of the petitioner’s legal right vested in such duty. This right must not only be judicially enforceable but also legally protected.

3. Quo Warranto

The term Quo Warranto means, “what is your authority”. The writ of quo warranto intends to call upon a person holding a public office to show under what authority he holds it. A writ petition of quo warranto ensures lawful appointment and lawful holding of a public office. Thus, as laid down in Centre for PIL v. Union of India, it forbids exercise of unlawful authority. However, it must be noted that the office under consideration must not be of a private nature.

4. Prohibition

The term prohibition means “to prohibit”.  It is issued in order to prevent a lower court, tribunal or other judicial officers from exceeding their jurisdiction. The Supreme Court in S.G. Menon v. Union of India highlighted that the writ of prohibition can be issued if the lower judicial authority acts in absence of jurisdiction or exceeds its jurisdiction. It is hence also known as the jurisdictional writ. 

5. Certiorari

The term Certiorari means “to certify”. It can be seeked by the petitioner in order to get a matter transferred a suitable higher authority for proper consideration or get the order passed by the subordinate authority quashed. It has been held in the case in of R v. Electricity Commisioner that a writ of certiorari maybe issued when an entity, with legal authority to decide upon matters affecting rights of subjects, acts in excess of such legal authority. 

Further, in Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court explained the scope of the writ of certirorari. The court laid down that this writ is available against subordinate courts and not against equal courts.

Certiorari v. Prohibition

Certiorari is different from prohibition because prohibition seeks to prevent a body without proper jurisdiction from continuing its proceedings. Whereas certiorari is issued to quash an order passed by a subordinate authority or transfer the matter to the higher authority. 

How to file a Writ petition in court

The following steps need to be followed in order to file a writ petition-

  1. A lawyer must be approached with the necessary documents. The documents are necessary to draft the writ petition.

  2. The drafting must take place as per the prescribed procedure and format of High Court and Supreme Court as the case maybe. It has to be accompanied by all necessary documents annexed therein and must properly indicate the law points and violation of fundamental rights involved.

  3. The draft is then taken to the court and submitted at the filing counter. The writ petition may also be filed via e-filing through the website of the respective High court or Supreme Court as the case may be.

  4. The writ is then presented before the bench of the court for hearing. The court hears the advocates for the petitioners. If the court finds that there is no basis for it to exercise writ jurisdiction, it dismisses the petition.

  5. On the other hand, if the court is satisfied that there is a prima facie issue involved in the petition, it sends notice or “Rule Nisi” to the respondents who are then called upon to answer why the writ should not be allowed.

  6. This “Rule Nisi” is amounts to admission of the writ petition.

Conclusion

The writs issued by way of writ petitions are fundamental in getting one’s fundamental rights enforced. They serve as an effective mechanism by which the courts restore faith in the constitutional mandate as well as the judiciary. 

About the Author: Shalu Singh | 19 Post(s)

Shalu Shravan Singh, currently a final year law student, and quite enamoured of writing. A music aficionado that’s also a wanderer and desires to visit more of these places.

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