December 4, 2021

What is Writ and How to File Writ Petitions?

law

The Constitution is not about the composition of the various organs of the government and the relation among them, it also throw light on the list of rights. During our freedom struggle, the leaders of the freedom movement had realized the importance of rights and therefore Motilal Nehru committee had demanded “Bill of Rights” far back in 1928, it was therefore natural that when India become independent and the Constitution was being prepared, there were no two opinions on the inclusion and protection of rights in the constitution.

The Part III of the constitution contains some specifically protected rights which are called as Fundamental Rights. These are regarded as fundamental because they are most essential for the attainment by the individual or his full intellectual, moral and spiritual status. The fundamental rights works as a reminder to the government in power that certain liberties assured to the people by the constitution are needed to be respected.

List of fundamental rights:-

  1. Right to equality(Article 14-18)
  2. Right to freedom( Article 19-22)
  3. Right against exploitation (Article 23-24)
  4. Right to freedom of religion (Article 25-28)
  5. Cultural and educational rights (Article 29-30)
  6. Right to constitutional remedies. (Ariticle32-35)

It is true that merely writing down of fundamental right is meaningless unless there is efficient machinery for their enforcement. It is remedy which makes the right real and that’s why our constitutional makers had incorporated Article 32 for their enforcement and also made it a fundamental right. Article 32 guarantees the right to move to the Supreme Court and authorized the Court to issues order or WRIT for the enforcement of the rights.

Dr. BR Ambedkar considered Article 32 as a heart and soul of the Indian Constitution. He also said, “If I was asked to name any particular Article in this constitution as the most important- an Article without which his Constitution would be a nullity— I could not refer to any other Article except this one.

Article 226, provides that notwithstanding anything in Article32, every High Court has power to issue, to any person or authority, including the government (in appropriate cases), directions, orders or writs; (a) for the enforcement of fundamental rights conferred by Part III, and (b)for any other purpose.

The writs mentioned in Article226 are known as prerogative writs because they had their power of superintendence over its officers and subordinate courts.

Article 227 determines that every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction (except a court or tribunal constituted under a law related to armed forces).

Difference between Article32 and Article226:-

Purpose: – The Supreme Court can issue a writ to enforce only fundamental right whereas high court can issue it for other purposes also.

Territorial jurisdiction: – The Supreme Court can issue a writ against any person or government in the territory of India whereas high court can issue the writ only against the person or the government within its area of jurisdiction.

Power: – The Supreme Court cannot refuse to execute its power in issuing a writ whereas; the high court can refuse it.

What is a Writ?

A writ petition is a written formal order to carry out a function/ command. A writ can be filed by any citizen of India to a Supreme Court and State High Court under Article32 and Article226 respectively, in case their fundamental rights are affected or violated by any action of state or government authority or body.

Types of Writ Petition

There are five types of writ petition in the Indian Constitution, which one can file either before the High Court or Supreme Court such as:

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

Habeas Corpus:-

The literal meaning of the word habeas corpus is, “you may have the body”. One can file this petition when he is legally detained and if court finds the detention as illegal, they can order a writ for the release of that person. A writ of Habeas Corpus can be filed in following cases:

  • When a person is in custody but is not brought before the presented within 24 hours of the arrest.
  • When the person is innocent and has not violated any law.
  • The arrest was made by constitutional means.
  • Detention was done with a mala fide reason or with the intention to harm the individual.

Generally, the person who has illegally detained file a writ petition of habeas corpus but when such person is unable to do the same, a family member, relative or friend can file a writ petition.

Cases of Habeas Corpus petition-

  • Sunil Batra v. Delhi Administration[1]

This case widened the scope of habeas corpus and was held that this petition can be issued not only for releasing a person from illegal detention but also for the protecting prisoners from inhuman and barbarous treatment.  Justice Krishna Iyer declared, “the dynamic role f judicial remedies imports to the habeas corpus writ a versatile vitality and operational utility as bastion of liberty even within the jails. Wherever the rights of prisoner wither under the constitution or under other laws are violated the writ power of the court can run and should run to rescue.”

  • Veena Sethi v. State of Bihar[2]

In this case, the court was informed through a letter that some prisoners, who were insane at the time of trial but subsequently, held sane and was detained from 20 to 30 years. The court directed their releasement forthwith.

  • Kanu Sanyal v. District Magistrate, Darjeeling[3]

In this case the Supreme Court held that while dealing with the writ of habeas corpus, the traditional method of production of the body of the person alleged to be unlawfully detained was not essential instead the court must focus completely on the legality of detention by looking into the facts and circumstances of the case. This case majorly focused on the nature and scope of the case and held that this is a procedural writ and not a substantive writ.

Justice Bhagwati added that, “why should we hold ourselves in fetters by a practice which originated in England about 300 years ago on account of certain historical circumstances which have ceased to be valid even in that country and which have certainly no relevance in ours”

  • AK Roy v. Union of India and others[4]

This case was popularly known as National Security Act (NSA) case and the Supreme Court by 4: 1 majority upheld the constitutional validity of NSA and the Ordinance which preceded the Act. It examined the constitutional validity of the Preventive Detention Act. It was held that it neither vague nor arbitrary in its provisions providing the detention of person on the certain grounds, as acting in a manner prejudicial to the ‘defense of India”, security of India and State. The court issued a no. of directions with a view to safeguard the interest of the detainee:-

  1. Person family or any friend should be immediately informed after the detention
  2. The detainee must be detained in a place where he habitually resides unless exceptional circumstances require detention at some other place.
  3. Should be entitled to book and writing materials, food, etc.
  4. Kept separate from those convicted.
  5. No harsh treatment.

Detention is turned out to be unlawful if the law backing it up is unlawful. A person has the right to approach the court. A person can file an appeal in the Supreme Court against the order of high court in case of accepting or refusing the application for the writ of habeas corpus.

  • Additional District Magistrate of Jabalpur v. Shiv Kant Shukla[5]

This case is popularly known as Habeas Corpus case which came up for hearing in Supreme Court on April28, 1976 and was decided by bench of five senior most judges, namely Chief Justices A.N RAY, Justice PN Bhagwati, Justice Y.V.Chandrachud, Justice Khanna and Justice M.H Beg.

On june27, 1975 the President issued an order under Article 359 (1) declares that

“no person has any locus to move any court for the enforcement of the rights conferred by Article 14, Article21 and Article22 of the Constitution and all the proceedings mentioned in any court for the enforcement of the above mentioned rights shall remain suspended for the period during which the proclamation of emergency made under clause (1) of Article 352 on the 3rd December and 25th June and both in force”

The Supreme Court by a 4:1 majority (dissenting) held that in view of the president order dated 27th June, 1975 no person had any locus standi to move any writ petition under Article32 and Article226 or direction to challenge the legality of any order of detention on the ground that the order of detention on the ground that  the order was not under or in compliance with the Act or was vitiated by mala fide factual or legal or has based on extraneous considerations.

The 44th Amendment has amended the Article 359 which now provides that the enforcement of the right to life and liberty under Article 21 cannot be suspended by Presidential order. In the view of 44th amendment, ADM Jabalpur v. Shiv Kant Shukla is no longer a good law.

ADM Jabalpur v. S. Kant Shukla was overruled twice, first in I.R. Coelho v. State of Tamil Nadu[6] and then in the historical judgment of the Court which came after 41 years on 24th august, 2017 in the case of- Justice K.S. Puttaswamy (Retd) and another vs. Union of India and others, regarding the right to privacy.

Justice D.Y. Chandrachud said, “The judgments rendered by all the four judges constituting the majority in ADM Jabalpur case are seriously flawed. Life and personal liberty are inalienable to human existence.”

Mandamus:-

The word Mandamus means “the order”. It’s a writ in which Superior Court directs or commands any particular person involved in public duty or public authority to do or restrain from doing something in the nature of statuary duty or any act which otherwise also falls under his purview of duty.

When it can be issued and granted?

One can issue the writ of Mandamus only in the cases where the statuary duty is imposed upon the officer concerned and there is a failure to perform or discharge the statuary obligation on their part. It’s a matter of grace and not a matter of right. The chief function of a writ is to compel performance of public duties prescribed and to keep them within the limits of their jurisdiction.

It can be granted only when there is in the application a right to compel the performance of some duty which is cast upon by the law; it must be a public duty and not a private one.

In the case of Raman and Raman v. State of Madras[7] and State of Assam v. State of Assam[8] it was held that-

“Mandamus will not issue to enforce departmental manuals or instructions not having any statutory force which do not give rise to any legal right in favour of the petitioner”[9].

In Binny Limited v. Sadasivan[10] 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.”

Requirements for the writ petition:-

  • There should be legal right in existence
  • Legal right should be enforceable by law
  • Right must impose a responsibility
  • Duty should be of nature

When the writ of Mandamus will not granted:-

  • When the duty is merely discretionary in nature-

In the case of State of M.P. v. Mandawara[11], the Government made a rule making it discretionary to grant dearness allowance. The Supreme Court held that the writ of Mandamus could not issue to compel the government to exercise their power.

The similar judgment was given by Supreme Court in Swaraj Abhiyan v. UOI[12], which was filed under Article32 of the Constitution demanding implementation of National Food Security Act, 2013, it was held that mandamus cannot be issued by the Supreme Court to the State Government for the implementation of the Act.

  • In the case of Barada Kanta v. State of West Bengal[13] it was held that the writ of mandamus does not lie against a private individual or any private organization.
  • A writ of mandamus cannot be granted to enforce an obligation arising out of contract.

Prohibition:-

A writ of Prohibition popular known as “stay order” is issued primarily to prevent an inferior court or tribunal from acting beyond its jurisdiction powers or acting contrary to the rules of natural justice. It’s a order issued by a superior court to prohibit the lower court from usurping a jurisdiction with which it was not legally vested.

A writ of prohibition can be filed either when there is an excess of jurisdiction or when there is an absence of jurisdiction as mentioned in the case of S. Govind Menon v. Union of India[14]

It’s a two way progress between an inferior and superior in which latter showcases its power or superintendence to inferior one to prevent an inferior tribunal or court to exceed its given power.

When it can be issued:-

It can be issued only when the proceeding are pending in the court and has not matured into the decision. When the court, before which the matter is pending has ceased to exist, in that condition the writ of mandamus will not lie because there can be no proceedings upon which it can operate but if the court is proceeding it can be issued at any stage before the inferior court.

Certiorari:-

Certiorari means “to be certified”. It’s a petition to issue an order or command by a Superior Court to an inferior court to remove the case from lower court and transfer it to the higher authority.

It is filed against the decision or order of the lower or inferior court where it was found the authority has disregarded the laws and principles of natural justice in taking decision.

The writ of certiorari may be used before the trial to prevent an excess or abuse of jurisdiction and remove the case for trial to higher court. It is also invoked after the trial to quash an order delivered by the court.

A person can only file a writ of certiorari when the following conditions are met:

  • There must be a court, tribunal or an officer that has the legal authority to determine the question with a duty to act judicially.
  • Violation of the prescribed procedure, have acted in excess of or in absence of or in excess of the judicial authority vested by law.
  • in contravention of principle of natural justice

Scope of this writ was defined by the Supreme Court in the case of Province of Bombay v. Khushaldas S. Advani & Ors[15], it was held that whenever any body of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, acts in excess of their legal authority; a writ of certiorari lies. It does not lie to remove merely ministerial act or to remove or cancel executive administrative acts.

When the certiorari is available?

In the case of Urya Dev Rai v. Ram Chander Rai, it was held that certiorari is not available for correcting mere errors or fact of law.

It is available only when:

  • When there is want of excess of jurisdiction.
  • Error is manifest and apparent on the face of record
  • Violation of procedure or disregards of principles of natural justice

Quo Warranto:-

The words ‘quo warranto’ means ‘what is your authority’. By this a writ a holder of an office is called upon to show to the court under what authority he holds the office. The object is to restrain a person from acting in the capacity of public office to which he/she is not legally entitled to hold.

If the inquiry leads to a finding, that a person is holding the office which he is not entitled to, the court may issues the writ of quo warranto preventing the person from acting further and may also declare to vacant the office.

The Supreme Court in the case of University of Mysore v. Govind Rao[16] laid down the following conditions to be met for filing the writ;

  • A disputed post must be the public post.
  • There must be a violation of law in holding the post
  • 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.

Who can apply?

Court expressed that a writ of ‘quo warranto’ can be filed by anyone if it satisfies:-

  • the office in question is public office
  • Post should be held by person without any legal authority.

Although, the issuing of quo warranto is always within the discretion of the Court to decide after considering the facts and circumstances of each case.

Can the writ of quo warranto be issued against private authority?

In the case of Jamalpur Arya Samaj Sabha v. DR. D. Ram[17], the High Court refused to issue a writ of quo warranto against the members of the working committee of the Bihar Arya Samaj Sabha, a private association.

In the case of G.D. Karkare v. Shevde[18], the appointment of Advocate- General of M.P. was challenged by a private individual who had no legal interest in that office. The court held it’s not necessary that the petitioner of quo warranto must have legal right in the post, anyone from public can challenge the right of a person to hold office on the condition that it should be of public nature.

In the case of Niranjan Kumar Goenka v University of Bihar and Others, Muzzafarpur[19], the Patna High Court held that writ of quo-warranto cannot be issued against a person not holding a public office.

How to file writ petitions?

The writ petition can be filed in High Court under Article226 and Supreme Court under Article32 of the Indian Constitution;

  1. One can check the format of writ petition by clicking here https://main.sci.gov.in/pdf/writ%20format.pdf and check the required documents required for filing the petition. It can also be filed online by visiting https://main.sci.gov.in/efiling.
  2. To draft a writ petition, hire a civil lawyer to help you with the overall procedure of drafting and representation in court.
  3. Every petition under article 32 of the Constitution shall be in writing and shall be heard by a Division Court of not less than five Judges
  4. No Court-fees shall be payable on petitions for habeas corpus or other petitions under Article 32 of the Constitution arising out of criminal proceedings, or in proceedings connected with such petitions.

[1] 1980 AIR 1579, 1980 SCR (2) 557

[2] AIR 1983 SC 339

[3] AIR 1974 SC 510

[4] 1982 AIR 710, 1982 SCR (2) 272

[5] 1976 AIR 1207, 1976 SCR 172

[6] AIR 2007 SC 861

[7] A.l.R. 1959 S.C. 694

[8] A.l.R. 1965 S.C. 1196

[9] https://www.soolegal.com/roar/writ-of-mandamus

[10] 2005 AIR (SC) 3202

[11] 1954 AIR 493, 1955 SCR 158

[12] Writ Petition (Civil) No. 857 Of 2015

[13] AIR1963 Cal. 161

[14] AIR 1967 SC 1274

[15] AIR 1950SC 22

[16] 1965 AIR 491, 1964 SCR (4) 576

[17] AIR 1954 Pat. 297

[18] AIR 1952 Nag. 330

[19] AIR 1973 Pat 85

Author Details: Saksham Suneja (Student, Modi Law College, Kota)

Instagram

Leave a Reply