This article is written by Deepika Tiwari, City Academy Law College, 5th Year, LLB (Hons) during an internship at LeDroit India

Keywords: Writ Petition, Fundamental Rights, Article 32, Article 226, Indian Constitution, Supreme Court, High Court

Introduction

Filing a writ petition in India is a significant legal remedy to safeguard fundamental rights and ensure justice. The writ petition, governed by Articles 32 and 226 of the Indian Constitution, provides a powerful tool for individuals whose rights have been violated by the state or any authority. The writ jurisdiction of the Supreme Court and the High Courts enables them to issue orders for enforcing fundamental rights, thus maintaining the rule of law and constitutional governance in India. This article delves into the procedure for filing a writ petition in India, its types, and the critical considerations for litigants.

A writ petition serves as a constitutional mechanism to challenge administrative actions or omissions that infringe upon fundamental rights. The process of filing a writ petition involves adherence to specific procedural rules and legal requirements, which are crucial for the court to accept and adjudicate the matter. This article will explore the step-by-step procedure, types of writs, and notable case laws that have shaped the landscape of writ jurisprudence in India.

Structure of the Article

1. Understanding Writ Petitions in India

1. Definition and Purpose

1. Constitutional Provisions: Articles 32 and 226

2.     Types of Writs under the Indian Constitution

• Habeas Corpus
  • Mandamus
• • Prohibition
• • Certiorari
  • Quo Warranto

3.     Procedure for Filing a Writ Petition

• Identifying the Appropriate Court
  • Drafting the Writ Petition
• • Submitting Required Documents
• • Court Fees and Costs
  • Hearing and Adjudication

4.     Illustrative Case Laws on Writ Petitions

• Landmark Judgements

• Recent Developments

Understanding Writ Petitions in India

A writ petition is a formal written order issued by a judicial authority to perform or refrain from performing a specific duty. In India, writs are powerful tools for the protection of fundamental rights guaranteed under the Constitution. Articles 32 and 226 empower the Supreme Court and High Courts, respectively, to issue writs for enforcing the fundamental rights of individuals.

Article 32 confers the right to constitutional remedies, allowing citizens to approach the Supreme Court directly in case of a breach of fundamental rights. This provision is often termed the “heart and soul of the Constitution,” as observed by Dr. B.R. Ambedkar.

Article 226 of the Indian Constitution empowers the High Courts to issue writs for the enforcement of fundamental rights as well as other legal rights. The scope of Article 226 is broader than Article 32, as it extends to the violation of both fundamental and statutory rights.

Types of Writs under the Indian Constitution

1. Habeas Corpus: This writ is issued to secure the release of a person who has been unlawfully detained. It is often invoked to protect personal liberty and prevent wrongful arrests.

Illustration: A person detained without due legal process can file a writ of habeas corpus challenging their detention.

• Mandamus: The writ of mandamus commands a public official, body, or lower court to perform a duty that it is legally bound to do but has failed to fulfill.

Illustration: A citizen can file a writ of mandamus if a government official refuses to perform their statutory duty.

• Prohibition: The writ of prohibition is issued by a higher court to a lower court or tribunal, restraining it from exceeding its jurisdiction or acting contrary to the law.

Illustration: A writ of prohibition can be sought to prevent a lower court from hearing a case that it has no jurisdiction over.

• Certiorari: This writ is issued to quash an order or decision of a lower court or tribunal that has acted beyond its jurisdiction or violated the principles of natural justice.

Illustration: An individual can file a writ of certiorari to challenge an illegal order passed by a lower court.

• Quo Warranto: The writ of quo warranto challenges the legality of a person’s claim to a public office. It prevents a person from wrongfully holding a public office to which they are not entitled.

Illustration: A writ of quo warranto can be filed against a person occupying a public office without the requisite qualifications.

Procedure for Filing a Writ Petition

1. Identifying the Appropriate Court:

Before filing a writ petition, it is crucial to determine whether the matter falls under the jurisdiction of the Supreme Court or the High Court. If the petition concerns the violation of a fundamental right, it can be filed directly in the Supreme Court under Article 32. However, if the petition involves other legal rights or a combination of fundamental and legal rights, it should be filed in the High Court under Article 226.

2.     Drafting the Writ Petition:

The writ petition must be drafted meticulously, stating all relevant facts, grounds for filing the petition, and the relief sought. The petitioner must clearly outline how their fundamental or legal rights have been violated and provide supporting evidence.

3.     Submitting Required Documents:

Along with the writ petition, the petitioner must submit various documents, including:

• Affidavit: A sworn statement attesting to the truth of the facts stated in the petition.
  • Vakalatnama: A document authorizing a lawyer to represent the petitioner.
  • Copies of relevant orders or documents that substantiate the petitioner’s claims.

4.     Court Fees and Costs:

The petitioner must pay the requisite court fees when filing the petition. The fees vary depending on the nature of the writ and the court’s jurisdiction.

5.     Hearing and Adjudication:

Once the writ petition is filed, the court may issue a notice to the respondent(s) to appear before the court. The court then examines the arguments of both parties, considers the evidence, and issues an appropriate order. The court’s decision could involve granting or rejecting the writ or issuing any other directions it deems fit.

Illustrative Case Laws on Writ Petitions

1. Landmark Judgements:
   1. Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461: This case established the doctrine of the basic structure of the Constitution, limiting Parliament’s power to amend the Constitution. The writ jurisdiction under Article 32 was pivotal in this case.
2. Maneka Gandhi v. Union of India, AIR 1978 SC 597: This case expanded the interpretation of the right to life and personal liberty under Article 21, emphasizing that any law depriving a person of liberty must be just, fair, and reasonable. The writ petition under Article 32 played a crucial role in this landmark judgment.

2.     Recent Developments:

• Justice K.S. Puttaswamy (Retd.) v. Union of India, AIR 2017 SC 4161: This judgment recognized the right to privacy as a fundamental right under Article 21 of the Constitution. The writ jurisdiction was instrumental in affirming this right.
  • Navtej Singh Johar v. Union of India, AIR 2018 SC 4321: This case decriminalized consensual homosexual acts between adults, marking a significant step towards ensuring equality and non- discrimination. A writ petition under Article 32 was pivotal in securing this judgment.

Conclusion

The procedure for filing a writ petition in India is an essential aspect of safeguarding fundamental rights and maintaining constitutional governance. Understanding the types of writs and the procedural requirements for filing

them is crucial for any litigant seeking judicial intervention. Through landmark judgments such as Keshavananda Bharati, Maneka Gandhi, and Navtej Singh Johar, the Indian judiciary has demonstrated the power of writ petitions in protecting citizens’ rights.

Filing a writ petition requires careful consideration of the court’s jurisdiction, proper drafting, and adherence to procedural rules. The writ jurisdiction of the Supreme Court under Article 32 and the High Courts under Article 226 remains a cornerstone of India’s constitutional democracy, providing an effective remedy for the enforcement of fundamental rights. By ensuring that the state and its authorities act within the bounds of the law, writ petitions continue to play a vital role in upholding justice and protecting individual freedoms.