Transformative constitutionalism
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This article is written by Srishti Sinha, a student of Nirma University, Institute of Law.

Introduction

The Constitution of India provides various rights to the citizens of India. One of the most essential rights for the intellectual and moral development of citizens of India are fundamental rights. These rights are mentioned under Part – III of Indian Constitution including rights to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights and right to constitutional remedies. Merely stating these rights under the constitution and providing them to the citizens of India is not sufficient. It is required that these rights should be protected. 

In order to protect these essential rights, Article 32 and Article 226 of the Indian Constitution provides remedies and enforcement of rights mentioned under Part – III. Article 32 and Article 226 provides the right to move to the Supreme Court and the High Court respectively through appropriate proceedings. This right can be availed by any person whose fundamental rights are violated.

What is a Writ?

A writ means an order that is issued under an authority. Therefore, a writ can be understood as a formal order issued by a Court. 

A writ petition is an application filed before a Court, requesting to issue a specific writ.

Types of writs

The Constitution of India, under Article 32 and Article 226, provides five types of writs to the citizens of India. These writs have different meanings and applications. They are:

Habeas corpus

The term habeas corpus means ‘you may have the body of’. This writ can be used when a person is illegally detained. By the use of this writ, the court directs the person detained to be brought before the court to examine the legality of his detention.

A writ of habeas corpus can be filed under the following circumstances:

  1. When a person is detained but is not produced before the magistrate within 24 hours of arrest, excluding the time consumed in travelling.
  2. When a person is arrested even when he has not violated any law.
  3. When a person is arrested with a malafide intention. 

Recently, the writ of habeas corpus was used by Republic TV Editor-in-chief Arnab Goswami before Bombay High Court, challenging his arrest in the case of abetment to suicide.

The writ of habeas corpus cannot be filed under the following circumstances:

  1. When the person or authority against whom the writ of habeas corpus is filed is not within the territorial jurisdiction of the court.
  2. Where the detention of a person is in accordance with the law.

In the case of Sunil Batra vs Delhi Administration, 1980, the Supreme Court expanded the scope of habeas corpus to the prisoners against inhumane treatment by the jail authorities. It was held in this case, that the court has the power and responsibility to protect the prisoners against this crude behaviour and can use habeas corpus writ to enforce in prison humanism.  

Mandamus 

The term mandamus means ‘we command’. It is generally a command which is issued by the court to a public servant asking him to perform his duty, which he has failed to do so. The writ of mandamus can also be issued against a corporation, an inferior court or a government body for the same reason, i.e., they failed to perform their official duties.

There are certain circumstances under which writ of mandamus cannot be filed:

  1. The writ of mandamus cannot be issued against the President of India and the Governor of State. Under Article 361 of the Indian Constitution, the President and the Governor of State do not have to answer any court for the performance of their official duties.
  2. The writ of mandamus cannot be issued against the judges of the High Court and the Supreme Court for the non-performance of their duties in a judicial capacity.
  3. The writ of mandamus cannot be granted against a private individual or private organization.

Certiorari 

The term certiorari means ‘certified or to be informed’. It is generally issued by a higher court to a lower court either to transfer the pending case to a higher authority or squash the judgement passed. In the year 1991, the Supreme Court ruled that the writ of certiorari can also be issued against administrative authorities if their judgements are violating the rights of an individual.

In the case of Hari Vishnu vs Ahmed Ishaque, 1995, the court held that an error in the decision or determination itself may also be amenable to a writ of “certiorari” if it is a manifest error apparent on the face of the proceedings.

The writ of certiorari can be issued under the following conditions:

  1. There must be a court that has the authority or have a legal right to act judicially.
  2. If the judgement by any inferior court is against the laws mentioned under the Constitution.
  3. If the judgement given by a lower court contains an error.

Prohibition 

The term prohibition simply means ‘to forbid’. The writ of prohibition can only be issued against judicial and quasi-judicial authorities. This writ is generally not available against administrative authorities and private individuals. 

It can be issued against a lower court or by a superior court to forbid the act which is performed outside its jurisdiction at any stage of its proceedings.

Quo-warranto 

The term quo- warranto means ‘by what authority or by what warrant’. It is generally issued by a court to enquire the legality or under what authority he is holding that office. It prevents the illegal holding of a public office by any person.

The writ of quo- warranto cannot be issued against:

  1. It cannot be issued against a minister to remove him from his position.
  2. It cannot be issued against the chief minister of a state for non-performance of his constitutional duties.

This writ cannot be issued in the case of a ministerial office or private office.  

new legal draft

Who can file the writ petition?

A writ petition can be filed by any individual whose fundamental rights, mentioned under Part – III of the Indian Constitution, are violated. It is a protection against the infringement of fundamental rights.

The application of the writ of Habeas Corpus can be filed by a prisoner who is detained and also by his/her friends or relatives. It is considered as a power that can force the court to address the officer who detained the prisoner. If the court finds that the officer is acting beyond his authority, then the court can order to release the prisoner.

Where to file the writ petition?

The writ petition, for the violation of fundamental rights, can be filed either in the High Courts or in the Supreme Court. Under Article 32, a person can file a writ petition in the Supreme Court for the violation of his/her fundamental rights.

Under Article 226, a person can move to the High Courts to file a writ petition when there is a violation of his/her fundamental rights. It should be noted that the authority against whom the writ petition is filed has to be present within the territory of India, otherwise, the petition has no value.

When a person’s fundamental rights are infringed, he can move to either of the courts. It is not necessary to first move to the High Court and then to the Supreme Court. 

In the case of Rajmata Vijai Raje Scindia vs State of Uttar Pradesh, 1986  it was held that there is no specific time limit to file a writ petition in India but it is expected that it should be filed without any delay. In case there is a delay, the court asks for valid justification for the delay. Hence, a reasonable delay is justified, otherwise, the petition may be dismissed.

How to file a writ petition?

To file a writ petition in either of the courts, a specific procedure needs to be followed:

Firstly, the aggrieved party has to approach a particular organization with necessary documents like identity proof, residential proof, photographs etc. 

Then there is the drafting of the petition with help of a lawyer. The draft includes the name and address of the aggrieved party along with the facts that lead to the violation of his/her fundamental rights.

After this process, the draft of the petition is sent to the court.

Then the date of hearing will be set and on this date the court accepts the petition and generates a notice to the other party. After this, a date is given to assure the presence of both the parties.

Finally, after hearing both the parties, the court gives judgement and grants relief accordingly.

Format of a writ petition 

For High courts 

Habeas corpus 

WRIT OF HABEAS CORPUS

In the High Court of Judicature at ________

Writ Petition No._________

Under Article 226 of the Constitution of India 

……………PETITIONER

VERSUS 

  ……………RESPONDENTS

To

The Hon’ble Chief Justice and His Companion Judges of the aforesaid Court.

The humble petition of the petitioner above named respectfully showeth:

  1. Facts 
  2. Question(s) of law
  3. Grounds

PRAYER

Mandamus 

WRIT OF MANDAMUS

IN THE HIGH COURT OF…………………… AT……………………

CIVIL ORIGINAL (EXTRA-ORDINARY) JURISDICTION

CIVIL WRIT PETITION NO…………………… OF 200…

IN THE MATTER OF:

  1. ————-S/o……………… R/o______                                                                            PETITIONER

            VERSUS             

 RESPONDENT

May it please the Hon’ble Chief Justice of the High Court of…………………… and His

Lordship’s companion Judges.

THE PETITIONER MOST RESPECTFULLY SHOWETH:

  1. Facts 
  2. Question(s) of law 
  3. Grounds 

PRAYER

PETITIONER THROUGH COUNSEL

MR.……………………

DATED……………………

Certiorari 

WRIT OF CERTIORARI

IN THE HON’BLE HIGH COURT AT_________

(Original Civil Jurisdiction)

Writ Petition No_______

  1. ____s/o ___ r/o___                                                                   

———————–Petitioner

VERSUS    

  ———————Respondent

PETITION UNDER ARTICLE 226 OF THE CONSTITUTION FOR THE ISSUE OF A WRIT OF CERTIORARI.

To,

The Hon’ble the Chief Justice and his companion Judges of the Hon’ble High Court of ___________

The above-named Petitioner begs to submit as under:

  1. Facts 
  2. Question(s) of law
  3. Grounds 

PRAYER

PETITIONER

DATE

Prohibition 

WRIT OF PROHIBITION

IN THE HON’BLE HIGH COURT OF JUDICATURE AT_________

Writ Petition No_________ of _________20 _________

  1. AA. _________resident of _________                                                      ……PETITIONER

VERSUS

        ……..RESPONDENT

PETITION UNDER ARTICLE 226 OF THE CONSTITUTION FOR THE ISSUE OF A

WRIT OF PROHIBITION.

The above-named Petitioner begs to submit as under:

  1. Facts 
  2. Question(s) of law 
  3. Grounds 

PRAYER

Quo – warranto 

WRIT OF QUO–WARRANTO

IN THE HON’BLE HIGH COURT OF JUDICATURE AT _________

(Original Civil Jurisdiction)

Writ petition No.________ of ________ 20_______

  1. A. A_____ resident of _______                                             

…………. PETITIONER

VERSUS 

       …………. RESPONDENT

PETITION UNDER ARTICLE 226 OF THE INDIAN CONSTITUTION FOR THE ISSUE OF THE WRIT OF QUO WARRANTO.

To 

The Hon’ble Chief Justice and his companion Judges of the Hon’ble High Court.

The above-named Petitioner begs to submit as under:

  1. Facts
  2. Question(s) of law
  3. Grounds 

PRAYER 

Date: 

Place:

(Counsel for Petitioner)

(Petitioner)

For Supreme Court

IN THE SUPREME COURT OF INDIA 

ORIGINAL JURISDICTION

CIVIL WRIT PETITION NO._________OF 20_________

IN THE MATTER OF 

………… PETITIONER

VERSUS

………… RESPONDENTS

PETITION UNDER ARTICLE 32 OF THE INDIAN CONSTITUTION FOR ISSUANCE OF THE WRIT IN THE NATURE OF _________ UNDER ARTICLE _______ OF THE INDIAN CONSTITUTION.

To,

The Hon’ble Chief Justice of India and his Lordship’s Companion Judges 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 IN DUTY BOUND, EVER PRAY.

FILED BY:

PETIONER-IN-PERSON

DRAWN:

FILED ON:

The writ petition should be accompanied by:

  1. The affidavit of the petitioner duly sworn;
  2. Annexures as referred to in the writ petition;
  3. A court fee of Rs. 500 per Petitioner (In Crl. Matter no court fee is payable);
  4. Index;
  5. Cover Page;
  6. Any application to be filed, per application Rs. 120;
  7. Memo of appearance;
  8. An application seeking permission to appear and argue in person (In case the petition is filed by petitioner-in-person), court fee Rs.120.

Conclusion 

Our constitution provides us with various rights. Some of the most important rights provided by our constitution are Fundamental rights. As the name suggests, these rights are essential for individual development. Since rights are available, their infringement is possible. So in order to protect these rights, we have five types of writs which a person can file before a High Court or the Supreme Court under Article 226 and Article 32 respectively.

References

  1. https://cleartax.in/s/writs
  2. https://www.myadvo.in/blog/how-to-file-writ-petition-in-court/
  3. https://www.srdlawnotes.com/2017/01/when-writ-of-mandamus-will-not-be.html
  4. https://www.latestlaws.com/articles/analysis-of-types-of-writs-under-constitution-of-india-landmark-cases-by-tanu-kapoor/#:~:text=In%20Province%20of%20Bombay%20v,writ%20of%20certiorari%20will%20lies.
  5. http://www.legalserviceindia.com/legal/article-541-law-of-writs-in-indian-constitution.html#:~:text=In%20the%20case%20Purushottam%20Lal,is%20breach%20of%20constitutional%20provision.
  6.  https://main.sci.gov.in/pdf/writ%20format.pdf
  7. https://www.finbucket.com/others/writ-petition/

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