This present article has been written by Pritha Bhowmik during her internship in LeDroit India.
INTRODUCTION:
The term “writ” has its origin from the old common law of England, which in legal language, refers to a formal, legal document that orders an individual or entity to perform or to terminate performing a selected action or deed.
Writ petition is an order of a higher court to its subordinate courts or courts, ordering them to either perform an act or to stop performing an act in certain circumstances. Though in its earliest form, a writ was simply an order by the English monarch, directing a person to undertake a specified task or cease a person from misusing his power, but, under the Indian legal system, writ jurisdiction is only vested to the Supreme Court and the high courts of all the Indian states.
According to the constitution of India, the apex court of the country, that is, the Supreme Court, has the jurisdiction to issue writs under Article 32 of the Indian Constitution for the enforcement of the fundamental rights of any citizen and under Article 139 of the Indian Constitution for
enforcement of rights other than fundamental rights; while the higher courts of the State, that is, the High Courts has the jurisdiction to issue writs under Article 226 of the Indian Constitution.
In this article, we will look further into the different types of writs, their functions and implications, and the requisites for drafting of a writ petition.
The different types of writs under Indian Constitution:
After the enactment of the Regulating Act of 1773 by the Parliament of Britain to control the territories owned by the East India Company, the Supreme Court of India was established. At this point of time, the concept of ‘writs’ came forth into notice and the Supreme Court was conferred
with the powers of issuing writs against its subordinate courts.
At that time, other than the Supreme Court, only the High Courts of the presidency towns (i.e. Calcutta, Bombay and Madras) were conferred with powers to issue writs and it was only after the birth of the Indian Constitution 1950 that the unambiguous powers to issue writs was vested to the Supreme Court of India and the High Court of each Indian States. The Supreme Court and the High Courts have the power to issue five different types of writs, namely Habeas Corpus, Mandamus, Quo-Warranto, Certiorari, and last but not the least, writ of prohibition.
- Habeas Corpus (produce the body):
The literal meaning of this term is ‘you may have the body of’.
The Writ of Habeas Corpus can be filed in any High court or the Supreme Court when-
• A person has been illegally detained, and it is proved by the Court of jurisdiction, after proper investigations, that he is an illegal detainee; or
• The arrest of a person has been made in contravention to the provisions of the Indian Constitution; or
• The detention is done with mala fide intention or ill intention; or
• The person has been detained but not been produced before the magistrate within 24 hours of arrest.
Generally the person who has been illegally detained, or in certain cases, any person on his behalf (be it, his friend or relative) can file for a writ of habeas corpus and issue it against any public authority or an individual for the release of the illegal detainee.
However, a writ of Habeas Corpus will be refused by a court where-
• The person or authority against whom the writ of habeas corpus is sought is not within the territorial jurisdiction of the court;
• The imprisonment or detention of the person is in accordance with law and is not unconstitutional in nature.
With time, the scope of the writ of habeas corpus has been widened by the Supreme Court, and it was stated in the case of Sunil Batra vs. Delhi Administration (1978) 4 SCC 409 that the writ of habeas corpus can also be filed for the violation of fundamental rights of the prisoners.
- Writ of Mandamus (we command):
‘Mandamus’ is a Latin word which suggests ‘we command’. It is a writ petition that is issued by a higher court directing or ordering a lower court, tribunal forum or any other public authority to do an act that they were supposed to do and is a part of their duty.
Any person, be it an individual or a private body can file a petition under the writ of mandamus before a court of jurisdiction under the following grounds-
• To compel someone to execute a duty that they are legally obligated to complete.
• To order a lower court or a government agency to complete a duty for sustaining the law or to correct an exploitation of discretion.
The writ of mandamus is filed both in federal and State courts. This is a type of writ that upholds the very basic of democracy, that is, of correction of mistakes. This writ compels the judges to correct its earlier mistakes in federal courts. However, in the State courts, the rule varies by the
jurisdiction.
Mandamus lies to ensure that the public duty is served efficiently. However, in India, it cannot be filed against the president or the Governor of the State.
- Writ of Quo-Warranto (by what authority):
The term ‘Quo-Warranto’ means ‘by what authority’. The writ of quo-warranto is a prerogative writ requiring the person to whom it is directed to show that what authority they have for exercising a particular right, power, or franchise they claim to hold. This writ restrains a person from acting in a public office to which he is not entitled.
In old English practice, the writ of quo-warranto was known as one of the most ancient and important writ. At that time, a writ of quo-warranto was issued by an authority of the king to restrain any person from acting on his behalf where he was not entitled to. With due course of time, it lost its value and usage due to its impracticality until finally it became an extraordinary
remedy during which an individual’s right to hold an office or governmental privilege is challenged.
In a country like India with 1.33 billion of population, the rate of corruption naturally proliferates and that is when the writ of quo-warranto proves to be of utmost necessity. It confers power to the
common people to challenge any unauthorized practice of profession or abuse of a public office or authority.
However, the writ of quo-warranto is prerogative in nature and can be refused under certain circumstances.
It can only be granted if-
• Offence with whose respect the writ has been filed is of public nature
The appointment is not attacked collaterally.
- Writ of Certiorari (to be certified):
In the literal sense, the word ‘certiorari’ means ‘to be certified’. This is a type of writ petition
which is filed before a court of competent jurisdiction for calling upon a matter from its subordinate
court or to refer to any superior authority for proper consideration, or to even quash the order of a subordinate court, if necessary.
One can file a writ petition of certiorari to a higher court when an inferior court or tribunal-
• Acts without any jurisdiction; or
• Acts in excessive jurisdiction; or
• Violates the principles of natural justice; or
• Acts under a law which is unconstitutional in nature; or
• Violates the fundamental rights of any citizen or citizens by an act. - Writ of prohibition (stay order):
This writ petition is popularly known as ‘stay order’. As the name suggests, this petition is issued
either by the Supreme Court or a High Court to prohibit or stop or put a stay on the power exercised
by any judicial or quasi-judicial authority.
The conditions under which the Supreme Court or a High Court can put a stay on the power of the
lower courts are-
• When there is an excess of jurisdiction; or
• When there is an absence of jurisdiction.
How do you draft a writ petition?
One can file a writ petition for both civil and criminal matters in the Supreme Court under article
32 of the Indian Constitution and in the High Court of any Indian states under Article 226 of the
Indian Constitution.
Drafting of writ petition is like drafting of any other petition following the same format and
procedure but by mentioning the type of writ under which the petition is to be filed.
A writ petition should be accompanied by:
• Affidavit of the petitioner duly sworn.
• Annexures.
• Court fee of Rs. 500/- per petitioner (In criminal matters no court fee is payable).
• Index (As per specimen enclosed).
Cover page (As per specimen enclosed).
• Any application to be filed, Rs. 120/- per application.
• Memo of appearance.
• Application seeking permission to appear and argue in person (in case of petition filed by
petitioner-in-person), Court fee Rs. 120/-.
Conclusion:
A writ petition is a legal instrument through which an individual can seek protection of his/her fundamental rights or for extraordinary review by asking a higher court to intervene in a lower court’s decision.
Writ petitions are facets of English common law, and are utilized in legal systems following the common law model, including those of the U.S., Australia, and India.
