WRIT PETITION
WRIT PETITION
Author : Gouri Kailash
INTRODUCTION
Writ was developed in ancient times as a way of showing the command of kings to his subjects for land revenue purposes.
It was developed in India with similarities to the English law to provide justice to people who have been wronged by the injustice of courts.
This article tries to include what is writ, why do we need writs, the different types of writs etc.
It also deals with writ jurisdictions of High Courts and Supreme Court.
What is Writ?
Writ is basically the formal order of court of higher authority to a court of lower jurisdiction or other authorities or an individual if there is violation of the fundamental rights of a citizen.
A writ is filed in the Supreme Court under Article 32 and in High Courts under Article 226 of the Indian Constitution.
A writ petition can be filed for civil as well criminal acts. For instance in case of criminal acts- rights of the accused in bail, when a person is illegally detained etc.
In civil acts in case of filing of taxes, intellectual property rights etc.
Why do we need Writs?
Writs are important in order to provide justice to who has been aggrieved and whose fundamental rights have been violated. It is to make sure that the justice has been served and also to help the citizens to defend themselves from the unjust orders of the court.
Types of Writs
- Habeas Corpus
- Mandamus
- Prohibition
- Certiorari
- Quo warranto
Habeas Corpus
The meaning of Habeas Corpus is “to produce the body”. It is a fast and easy remedy available to a person who has been illegally detained. It can be filed against the state as well as the person who has detained the other.
When a habeas corpus petition is filed the court orders the person to be produced before the authority to check whether he has been illegally detained and if it is found that the person has been illegally detained the court will order for the release of the detained person.
A habeas corpus petition can also be filed if a person has been arrested illegally without any just reasons and has not been produced before the magistrate within 24 hours of arrest.
The habeas corpus petition can be filed by the person who has been illegally detained or by any other person on his behalf provided that he must not be a complete stranger to the person detained.
The form while filing habeas corpus usually consists of personal information, the name of prison and its location where the person has been illegally detained, the reasons for his arrest etc.
It should also contain the reasons for filing the habeas corpus and it should be valid. It is the duty of the person applying (applicant) to disclose the facts which are necessary to prove the illegal detention.
After the court reviews the application, the court demands to produce the illegally detained person before the court and after analyzing if it is found that the person has been illegally detained, the court shall order for his release. If it is found that there is no illegal detention then the court shall reject the application.
Rudul Shah v State of Bihar (Rudul Shah v State of Bihar, 1983, 4 SCC 141)
In the above case Rudul Shah was arrested for murdering his wife in 1953. In 1968 he was acquitted by the Additional Sessions. But then he was forced to remain in jail for 14 years until public interest litigation under Article 32 of Supreme Court was filed in 1982. He was released before it came up for hearing. The court awarded him sum a of Rs 30,000 as a relief.
Mandamus
Mandamus is Latin word which means “we command”. In the writ of mandamus the higher Courts command or order the lower courts, any public authority, tribunal etc. to perform their duty.
The writ is issued when lower courts or any public authority or any tribunal have failed to perform their duty which is imposed by the law. The writ of mandamus is not a matter of right. It is the discretionary power of the court to decide whether it should issue the writ, It is issued only if the court feels that there has been a lack of duty on part of the lower courts or they have done an act which is not under purview.
It is basically an order to do or not to do an act which is against the law.
There are some requirements to issue the writ of mandamus:
- There has to be a legal right.
- The legal right has to be enforceable in court.
- This legal right has to be public in nature.
- It should impose a responsibility on a public authority, person etc.
It cannot be issued against the following people:
- Any private individual.
- Against the President or Governor of a State.
- Against a working Chief Justice.
- To enforce a private contract.
The writ of mandamus can be filed any person against the authorities to perform their duties however he should have a special interest in doing so and also the legal right.
Binny vs. Sadasivan (Binny vs Sadasivan, 2005 AIR (SC) 3202) it was said “A writ of mandamus or remedy is pre-eminently a public law remedy and is not generally available against private wrongs. It is used for enforcement of various rights of the public or to compel the public statutory authorities to discharge their duties and to act within the bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties.”
Prohibition
A writ of prohibition is issued to the by the Supreme Court or High Courts to prohibit something.
When the lower courts or tribunal does some activity which exceeds their jurisdiction the High Courts or Supreme Court can prohibit them from doing that activity.
The writ of prohibition is issued when there is excess of jurisdiction or absence of jurisdiction. A writ of prohibition is also popularly called the stay order.
Certiorari
Certiorari means “to certify”. The writ of certiorari is issued by the High Courts to the lower courts or any other judicial or quasi-judicial authority to keep them in check.
It is mainly issued when the lower courts or judicial or quasi-judicial authorities exercise in excess of their jurisdiction. In such a situation their decisions shall be quashed by the High Courts.
State of U.P vs Mohammed Noor (State of U.P vs Mohammed Noor, AIR 1958 SC 816) it was stated that “one can issue the writ of certiorari to mainly reform the mistakes related to the jurisdictions of lower courts”.
Hari Vishnu Kamath vs Ahmed Ishaq (Hari Vishnu Kamath vs Ahmed Ishaq, AIR 1995 SC 233) it was held that writ of certiorari can be issued to correct the error apparent on face of records and not to correct the error apparent on facts”.
A writ of certiorari cannot be issued against:
- An individual
- Any private authority
- Any tribunal having no judicial or quasi-judicial authority.
- It cannot be issued to declare that an act is unconstitutional or ultra vires.
The writ of certiorari is issued on the grounds of:
- Excess of jurisdiction
- Violation of principle of natural justice
- Error apparent on the face of records.
Quo warranto
It means “by what authority”. The writ of quo warranto is issued to prevent a person from holding an office wrongfully or forcefully.
By the writ of quo warranto the court can ask the person who is holding the office that by what authority is he holding it.
For instance person of age 65 years is given a post in the office which was vacant. But the retirement age is 60 years and therefore a person can file quo warranto and apply for his removal from the office.
The object of quo warranto is to decide whether a public officer is entitled to hold the and whether he can exercise his duty. The writ of quo warranto is a judicial enquiry.
The writing of quo warranto is a discretionary writing and therefore High Courts can decline it on the grounds of:
- Delay
- Waiver
- Acquiescence
- Availability of alternative remedies
- Or if the person who was holding the office has ceased to hold the office by the time the written petition was filed.
Grounds on which the quo warranto can be filed:
- The office has to be a public office.
- The person holding the office should not have any legal authority.
- It has to be substantive character.
- The person holding the office should have been in actual occupancy.
CONCLUSION
Every citizen has their legal rights which is to not be violated however if it is violated the writ petition has been introduced in the Constitution in order to protect such person whose rights have been violated by the decisions of the legal authority. The power to issue writs is a discretionary power however it has some limits and therefore it has to be based on sound legal principles.
