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WHAT IS A WRIT PETITION? HOW TO FILE ONE IN COURT?

Writ

EXECUTIVE SUMMARY

The citizen of India has certain fundamental rights, which has been provided by the Indian Constitution to him. If those fundamental rights have been violated by the state government, government authority, or body, then a citizen of India has the right to file a writ petition in High Court or Supreme Court. In this article, we have covered about writ petition and filing of the writ petition.

WHAT IS A WRIT PETITION?

The writ is a kind of written command, which is given by the High Court to the lower court to follow. A writ petition can be filed by any citizen of India with the high court or Supreme Court in case their fundamental rights are violated by the state body or any government body. The writ petition is an order by the High court to subordinate court or court to do something or guide something. As per the constitution in the Indian Legal system, any citizen can file a writ petition under Article 32 and Article 226 of the Constitution of India. Under remedy of Article 32 of the Constitution of India, any citizen of India can file a writ petition in the Supreme Court of India, as well as under Article 226 writ petition can be filed in any High Court of India. Any citizen can file a writ petition with help of their advocate with the proper legal draft. The writ petition can be a criminal or civil writ petition as per the case. If a person does not satisfy with High Court about the writ petition, then he or she can go to Supreme Court to file Writ Petition under Article -32 of the Indian Constitution. But if a person went to the Supreme and maybe, he is not satisfied with the Supreme Court decision, he cannot come back to State High Court to file a Writ Petition under Article 226. The writ is a kind of written command, which is given by the High Court to the lower court to follow. A writ petition can be filed by any citizen of India with the high court or Supreme Court in case their fundamental rights are violated by the state body or any government body. The writ petition is an order by the High court to subordinate court or court to do something or guide something. As per the constitution in the Indian Legal system, any citizen can file a writ petition under Article 32 and Article 226 of the Constitution of India. Under remedy of Article 32 of the Constitution of India, any citizen of India can file a writ petition in the Supreme Court of India, as well as under Article 226 writ petition can be filed in any High Court of India. Any citizen can file a writ petition with help of their advocate with the proper legal draft. The writ petition can be a criminal or civil writ petition as per the case. If a person does not satisfy with High Court about the writ petition, then he or she can go to Supreme Court to file Writ Petition under Article -32 of the Indian Constitution. But if a person went to the Supreme and maybe, he is not satisfied with the Supreme Court decision, he cannot come back to State High Court to file a Writ Petition under Article 226.

TYPES OF WRIT PETITIONS

The power to issue a writ petition in India is primarily provisioned to protect the fundamental rights of citizens and these constitutional remedies are equally applicable to every citizen. There are five types of Writ Petition in the Indian Constitution, any person can use those remedies to save their fundamental rights and file a petition in the High Court or Supreme Court.

Five types of Writ Petitions are-

  • Habeas Corpus
  • Mandamus
  • Prohibition
  • Centiorari
  • Quo Warranto
  1. Habeas Corpus Writ Petition

The meaning of Habeas Corpus is, “you may have the body of.” This writ petition filed against illegal detention. With this writ petition, the order can pass to release illegally detained persons. Supreme Court has widened the scope of the Habeas Corpus writ petition. The Violation of fundamental rights of prisoners has been included in this writ petition. So, they can also file a writ petition under Habeas Corpus (Eg. SUNIL BATRA vs. DELHI ADMINISTRATION). The detailed explanation we will get in the case of P.S. SADASHIV SWAMI Vs. STATE OF TAMIL NADU (AIR 1974 SC 2271).

The features of the writ petition are the following:

  • Court has the authority to ask questions about the causes of detention, who has been detained.
  • The court can issue a summon to produce the detained person in the court
  • If the court concluded that the detention of the person is illegal, then the court can order for the release of the person.

When will we file the Writ Petition?

  • The person is detained and arrested for more than 24 hrs. and not produced before the magistrate.
  • If any person has been arrested without any violation of law done by that person
  • If any person has been arrested for an unconstitutional law eg. The laws, which is going against the provisions of the Constitution of India.
  • Detention is done with mal-fide intent, or with the intent to harm the persons.
  1. Mandamus Writ Petition:

Mandamus means ‘We Command’, which is one type of Writ Petition, whereby the higher court gives the order to the lower court, forum, tribunals, or any public authority to do any act as per order. It falls under the purview of their duty.  

The features of the Mandamus Writ petition are the following:

  • The Legal right should be in existence.
  • The court enforces the legal right.
  • This enforcement of legal rights on Public Authority, the Lower court, the tribunal
  • This duty is of public nature.

Writ of mandamus can be issued against the following people:

  • A Private body or an individual
  • Against an acting chief justice
  • Enforceable to a private contract
  • Issue against the president or Governor of State.

Who can file the Writ of Mandamus?

Any individual person or a private body can file Writ Petition under mandamus. They have their legal rights related to concern matters.

  1. Prohibition Writ Petition:

Writ of Prohibition can be issued by either Supreme Court or High Court to prohibit a tribunal, the lower court, forum, or any public authority. This writ mainly issues to stop or put stay on power exercised by the authority, which called Stay Order. If the lower court exceeding its power, then-Supreme Court or High Court has the power to issue a stay order against the lower court proceeding, so lower court proceedings will come to end. The conditions by courts for Writ of Prohibitions are either excess of jurisdiction or absence of jurisdiction.

In the Case of GOVIND MENON vs. UOI AIR 1967 SC 1893

Features of Writ of Prohibition:

  • This writ issued against judicial or quasi-judicial authority.
  • The order can be issued to the lower court to restrict to not do something.
  • It is direct inactivity.
  • It prohibits continuing in excess of their jurisdiction.
  1. Certiorari Writ Petition:

The word certiorari means ‘To be Certified’. For Proper consideration, with this Writ of Certiorari, the Apex court can transfer of the matter to it or superior authority. People can issue the Writ of Certiorari against the lower / inferior court or tribunal. The High Court writ petition can be issued against lower district courts.

One can issue the Writ of Certiorari when a lower court, subordinate court, or Tribunal body act in:

  • If they exceed in the jurisdiction
  • If they the absence of their jurisdiction
  • If they fail to make use of their jurisdiction

In the Case of

  1. STATE OF UP vs. MOHAMMED NOOR AIR1958 SC 816
  2. HARI VISHNU KAMATH vs. AHMED ISHAQ AIR 1995 SC 233

The mandatory conditions:

  • If court, tribunal, legal authority officer passes an order without jurisdiction.
  • If court, tribunal, legal authority officer vested excess of judicial authority.
  • If an order should be against the nature of natural justice or containing an error of judgment.
  • If the question of duty to act judicially for court, tribunal, or legal authority officer.
  1. Quo-Warranto Writ Petition:

The Writ of Quo-Warranto means ‘By what authority’ or ‘on whose authority is one holding a public office’. This can be issued to restrain a person from acting in the capacity of public office, which they have not entitled.

Eg. – If a government office has a vacancy and they gave the job to any person whose running age is 65 years and the retirement age is 60 years, one can file the writ of Quo-warranto to remove such person from the current job profile.

How do I file a Writ Petition?

The writ petition can be filed in both fields like civil and criminal. All writ petitions can be filed in the High Court under article 226 or in Supreme Court under article 32 of the Constitution of India.

The Procedure of Writ Petition is the following:

  • Draft Writ Petition:

Hire experienced civil advocate to help you with all drafting of the writ petition and other procedures of representation in court.

  • File Petition:

Draft properly and after drafting, you are all set to file the petition at filing counter in the High court or the Supreme Court.

  • Date of Hearing:

On the date of hearing, after admitting the petition, the court can send a notice to the other party. After that court fixes the next date for the hearing. This time another party can choose to appear or not

  • Final Consideration:

In this step, the court will consider all the contents of the petition, and grant relief accordingly.

FORMAT OF WRIT PETITION

  1. SYNOPSIS AND LIST OF DATES (Specimen enclosed)
  2. FROM NEXT PAGE

IN THE SUPREME COURT OF INDIA

ORIGINAL JURISDICTION

CIVIL WRIT PETITION NO.______ OF 2020

IN THE MATTER OF

Name

Address                                                                  …..Petitioner

Versus

Name

Address                                                                          …. Respondents

PETITION UNDER ARTICLE________OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF __________UNDER ARTICLE______OF THE CONSTITUTION OF INDIA.

To

                    Hon’ble The Chief Justice of India and His Lordship’s Companion Justices of the Supreme Court of India. The Humble petition of the Petitioner above-named.

MOST RESPECTFULLY SHEWETH:

  1. Facts of the case
  2. Question(s) of Law
  3. Grounds
  4. Averment

That the present petitioner has not filed any other petition in any High Court or the Supreme Court of India on the subject matter of the present petition.

PRAYER

In the above premises, it is prayed that this Hon’ble Court may be pleased:

  • ………….

To pass such other orders and further orders as may be deemed necessary on the facts and in the circumstances of the case.

FOR WHICH ACT OF KINDNESS, THE PETITIONER SHALL AS INDUTY BOUND, EVER PRAY.

FILED BY:

PETITIONER-IN-PERSON

DRAWN:

FILED ON:

Author(s) Name: Dr. Shivangi Zarkar (Advocate and Corporate Counsel)

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