This article has been written by Sharanya Ghosh, Symbiosis Law School, NOIDA
The Guest Speaker
Jayom Shah is an Advocate who currently works at the Bombay High Court. He has varied experience ranging from current practice of Civil Litigation, Drafting of Commercial Documents as well as Family Dispute Resolution and his education in Business Management and Company Secretary and the experience of working with a Solicitor, a reputed Law Firm, a reputed Corporate Group as well as a Litigating Counsel in Higher Judiciary makes him the best candidate to educate us about the concept of writ petitions. He is a self-employed advocate as of today and has previously worked with Counsel Advocate H. Devarajan for a period of eight years at the Supreme Court and the Bombay High Court.
Ruchika Motwani is an experienced Legal Associate with a demonstrated history of working in the litigation field as well as in-house legal teams of the Fortune 500 companies. She has worked as a legal professional since 2017 and with LawSikho for the past seven months. She is a part-time associate with LawSikho currently.
What is a writ?
A writ is simply put: a command or direction of the court of law. This is an English law concept under which there were two kinds of jurisdiction encompassed in common law principles and the writ. Writ litigation revolved more around the concept of equity and is essentially for the rights of citizens. Rights can be classified as legal or fundamental.
What is a legal right?
Legal rights are those rights that have been granted to an individual under a provision of a statute or an Act. These are a creation of a statute and if there is no statute, there is no law conferring a particular right or duty or obligation. Thus, there will be no legal right. The power to create such legal rights lies in the hands of the legislature, and this may be done both at the state and the central level.
What are Fundamental Rights?
Fundamental Rights are inherent in the concept of humanity. Fundamental rights are those rights which are essential for intellectual, moral and spiritual development of individuals. Since these rights are fundamental or essential for existence and all-round development of individuals, hence, they are called Fundamental rights.
What are some of the Articles in the Constitution that revolve around writ petitions?
Majorly, there are three Articles of the Constitution of India that revolve around the concept of writ petition. These are Article 226, Article 227 and Article 32. These are concerned with the powers of the High Courts and the Supreme Court. Some other Articles include Article 13, 245 and 246.
What does Article 226 talk about?
Article 226: Power of High Courts to issue certain writs for enforcement of Fundamental Rights or for any other purposes.
Article 226 gives power to High Courts to issue writs on both the enforcement of Fundamental Rights as well as other purposes. On the other hand, the Supreme Court generally deals with writs that revolve around Fundamental rights alone. Thus, the High Court has more powers to offer remedies than the Supreme Court. Since it has both supervisory as well as original jurisdiction, it can look into matters of any kind.
What is important about Article 227 of the Indian Constitution?
Article 227: Power of superintendence over all courts by the High Court.
This Article essentially gives power to the High Court according to which any court subordinate to it shall follow a decision taken by it in the jurisdiction of that High Court. Thus, any decision taken by the Delhi High court will be applicable to all the courts in Delhi that the High Court is superior to.
What does Article 32 of the Constitution state?
Article 32: Power of Supreme Court for enforcement of rights conferred by the Constitution.
The power of the Supreme Court under Article 32 is only limited to enforcement of Fundamental Rights whereas the High Court can exercise such powers for any other purpose apart from the enforcement of Fundamental rights. Although the High Court has a wider power of jurisdiction as far as writ petitions are concerned, the Supreme Court has wider territorial Jurisdiction than the High Courts. Moreover, the Supreme Court is further empowered due to Article 139 and Article 142 of the Constitution.
When can a Writ Petition be filed under the above mentioned Articles?
Writ Petitions under Articles 226 and 227 can be filed when:
- The court or tribunal has assumed a jurisdiction which it does not have;
- The court or tribunal has failed to exercise a jurisdiction which it does have, such failure occasioning a failure of justice; and
- The jurisdiction though available is being exercised in a manner which tantamount to overstepping the limits of jurisdiction.
Article 32 of the Constitution gives the right to individuals to move to the Supreme Court to seek justice when they feel that their right has been ‘unduly deprived’.
What are the types of writs?
There are five types of writs:
- Habeas Corpus
When can you file a writ petition?
Before filing a writ petition, you need to ensure that all the remedies available to you by any other authority have already been exhausted. This means that the writ is the only recourse left. Only then can a petition be filed. There are a few important requirements that one must fulfill in order to file a writ petition. The first is that a person must have the locus standi. Also, in the case that an alternate remedy exists, one must first exhaust that remedy.
When can my petition be dismissed?
Your Writ Petition may be rejected in case you have not exhausted your remedies as provided by an authority that is fully functional and one that already provides you with the relief that you seek. If these existing authorities and conditions can fulfill your needs, the High Court or the Supreme Court need not look into the matter and the petition shall be dismissed. However, if any of the conditions is not fulfilled, you cannot be denied access to justice. Thus, that is when you can file a petition.
What is the recourse available in the case that a writ petition is dismissed by the respective High Court or Supreme Court?
In case a writ is dismissed by the High Court, one may either go for a review of the decision by the Court or you may approach the Supreme Court through a Special Leave Petition. In the Supreme Court, a review or a decision by a larger bench is the recourse available in the case a writ is dismissed.
What do the Doctrines of Intra Vires and Ultra Vires mean?
Intra vires means that the particular action of the authority lies within the limits of the power conferred on it. Ultra vires refers to the situation where the limits are crossed by the authority, in the case where they are in violation of the law. These are generally read with Articles 13, 245 and 246.
Whenever you are challenging a law, how do you go about it?
There are various contexts through which one may raise questions of law. One is legislative competence. Another, is understanding whether the provision in question fulfills the object of the Act and whether it leads to arbitrariness. Similarly, specifically in the case of writ petitions, one very important question to be answered is whether the provision affects or violates any Fundamental rights of a citizen. There are also cases in which the doctrine of ultra vires may be applied to study whether the provisions are in consonance with the main Act or not. Thus, there is no single way to question a law and one needs to do proper research in order to achieve their goals.
Can you suggest some books to study from?
Mr. Shah mentioned a couple of books before explaining that as a student, you may read books to understand the concepts but it is also important to read the judgements by yourself. This is important because the author’s interpretation is different from yours and someone else’s. By reading the case laws yourself, you will be able to appreciate the law better. Reading different books is also good, because you will be able to understand different perspectives of different authors but when you read a judgement, you will be able to understand the context of the matter and why the court said what it said.
Are High Court decisions applicable in other jurisdictions as well?
If you read the Constitution, the principles of law and the judgments that are laid down by the Supreme Court are binding on all territories of India. But the decision of a particular High Court is a binding precedent in the territorial jurisdiction of that particular High Court unless it is overturned by the Supreme Court. The judiciary cannot insert something into the Constitution; it can only interpret it. What a High Court decides has to be upheld within its jurisdiction.
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