Everything you should know about writ petition

Definition

A writ petition is a written formal order to carry out a function/command. In India, the Supreme Court and High court has the authority to file the writ petition. The high court uses Article 226 and the Supreme court uses Article 32. It is done to safeguard your fundamental rights. Orders, warrants, directions are all such examples of writs. Even, Parliament can extend its power to issue writs for any other courts.

Types

There are in total of 5 types of writ petition a court can order. These are:

Habeous Corpus

Habeous corpus or “Let us have the body” is a petition filed by a high court to determine whether the person is illegally detained or not. If that is the case, then the court could issue a writ for the release.

Circumstances under which Habeous corpus could be filed are:

  • The person is in custody but not presented before the magistrate within 24 hours
  • The person arrested is innocent and hasn’t violated any law
  • The arrest is made unconstitutionally
  • If the person is detained for malafide reasons i.e. to harm the person

People who can file Habeous Corpus are

Usually, it’s the person who has detained files the petition. But in case he/she is unable to do so, then his family members, his relative or friends can issue it.

Also, the person imprisoned could be called to court for further verification.

Mandamus

Mandamus or “we command” is issued if the high court wants to assign an order to the lower court, which also falls under its duty. It is issued if the public officer fails to perform his/her official duty.

Requirement of Mandamus

  1. There needs to be a written legal right for that duty
  2. The right should be enforceable by the court
  3. Once the duty is imposed, the responsibility falls on a certain person, public authority, corporation or government,
  4. If the duty is public in nature

Against whom can a writ of mandamus be filed?

It can be issued against

  • a president/governor of the state
  • current chief justice
  • an individual/private institution
  • private contractor

People who can file Mandamus are

A single person/an institution can file a writ of mandamus if they have the legal rights to do so.

Under this, a person can file a writ against even the president of the country, if he/she thinks that the president was unable to perform the official duties.

Writ of Prohibition

Writ of prohibition, as the name suggests is to prohibit. It is filed by a higher court to prohibit the lower court if it is deemed that the task performed by the lower court outreaches its rights. It is to stop or put a stay on the working of the court and is also knows as ‘stay order’.

Conditions

Some conditions laid by the court are

  • If there is an excess of jurisdiction or
  • If there is an absence of jurisdiction

Difference between Writ of prohibition and Mandamus

  • In the writ of mandamus, the court assigns a duty to be performed by the lower court. And in the writ of prohibition, the court prohibits the lower court from doing anything in excess of their jurisdiction.
  • The court can issue a writ of mandamus to any judicial, quasi-judicial and administrative authority. But in, writ of prohibition, the court has the right to issue a writ to only judicial and quasi-judicial authority and not the administrative authority.

Writ of Certiorari

Writ of Certiorari or ‘to be certified’ is used when the Supreme Court issues a lower court or tribunal to transfer the matter to itself or to a high court. You can issue a writ of certiorari against the inferior court or tribunal.

Circumstances

In layman’s term, writ of certiorari can be issued against any tribunal/lower court if they act in

  • the absence of jurisdiction
  • excess of jurisdiction
  • fails in making use of their jurisdiction

Conditions

There are some condition to file write of certiorari

  1. There needs to be a court, tribunal or an officer that have the legal authority to determine the question with a duty to act judicially.
  2. The court, tribunal or officer in question must have acted in excess of or in absence of or in excess of the judicial authority vested by law.
  3. The order passed could be against the principles of natural justice. Or it could contain an error of judgment in appreciating the facts of the case

Quo Warranto

Writ of quo-warranto or ‘by what authority’ or, ‘on whose authority is one holding a public office’ is issued against a government official/public post. It is to challenge a person holding a post in the office.

Let’s say:

  1. If a government institution fills a vacancy by employing a 63 years old man
  2. But since the retirement age is 60, a person can file a writ petition of Quo Warranto challenging/removing his position.

Requirements

Some conditions/requirements are crucial in launching a writ petition of Quo Warranto:

  1. The person, against whom the writ is filed, should be holding a public post
  2. There should be a violation of law in holding this post
  3. 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.

How to file writ petition? 

As mentioned before, the supreme court and high court could file a petition under article 32 and 226 respectively.

For such a case, there is a stepwise process to file a petition in either of the courts. This procedure is as follows:

  • Draft your petition. Create a format as per the given instructions by clicking here. Use the services of a lawyer to ease this process.
  • After this, file the petition at the filing counter of the court
  • Date of the hearing will be set
  • On this date, the court will accept the petition and issue a notice to the other party of the same
  • Then, another date for the hearing will be fixed with both the parties present
  • Finally, the court will consider all the details of the petition and grant relief accordingly.

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By | 2019-04-08T13:28:48+00:00 April 8th, 2019|Others|Comments Off on Everything you should know about writ petition

About the Author:

Sarubpreet Kaur has Post-Graduated in Journalism and Mass Communication from Aligarh Muslim University and currently working as a Content Writer at Finbucket. She is a creative content writer who can make the article thought-provoking. The virtues that she holds are dedication, integrity, loyalty, and hard work.