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What is a Writ Petition? How do you file one in Court?

Writ Petition is an order by a higher court to a lower court or courts directing them to act or stop them from doing an activity. The Indian Constitution provides five types of writ petition: Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo Warranto. They can be further categorised into civil writ and criminal writ petition. Read on to know how to file writ petitions in the High Court or Supreme Court...
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Writ is a form of written command in the name of the court. It directs you to act in a specific way. And Writ Petition is an order by a higher court to a lower court or courts, directing them to do something or stop them from doing something.

In the Indian legal system, you can file or draft a writ petition under Article 226 in the High Court and under Article 32 of the Indian Constitution in the Supreme Court.

 

Article 32 and Article 226 of the Indian constitution elaborate on the process and meaning of the writ petition. Or else, at any point of time, you can consult an expert lawyer to draft writ petition for you.

You can also file a criminal or civil writ petition in the High Court or the Supreme Court, depending on the case matter. In case the High Court doesn’t give a suitable judgement, you can then submit the petition of the writ in the Supreme Court. 

Or just ask for legal advice from us online. 

 To know what a writ petition is and how you can file one in India, let’s discuss in detail...

Table of Contents:

 

Consult: Top Civil Lawyers in India

What is a Writ Petition in High Court?

Writ in India is the formal order of the court directing the authorities, if there is a violation of fundamental rights by a government authority or body.

One can file a Supreme court writ petition under Article 32 of the Constitution. Whereas, you can file the writ petition in high court under Article 226 of the constitution.

One can file Writ petitions in India for a civil or a criminal act.

  • You can file a criminal writ petition when the cause of action in relation to the criminal law such as the right of accused, bail, etc.

  • You can file a civil writ petition when someone commits a civil wrong such as IPR, taxes, etc.

Type of Writs in the Constitution of India

The Indian Constitution gives the power to the Supreme Court, where it issues Writ Petitions in India for the enforcement of any fundamental rights guaranteed under Article 32 of the Indian Constitution.

The power to issue a writ petition in India is primarily a provision - to the Right of Constitutional Remedies to every citizen and this right acts as a guarantor of all other fundamental rights in India.

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

  • Habeas Corpus

  • Mandamus

  • Prohibition

  • Certiorari

  • Quo Warranto

What are the 5 writs?

  • Habeas Corpus Writ Petition

The literal meaning of the term Habeas Corpus means, ‘you may have the body of.’

You can file this type of writ petition when a person is illegally detained. Meaning, if the court finds out that the person is illegally detained, then it can order for the release of that person.

For Example:

  1. When one files writ petitions of Habeas Corpus in nature, then the court orders the authority to produce the detained person before him to examine whether (s)he has been examined legally or illegally 
  2. On conducting the examination, if the court finds that the person has been illegally detained, it can order for the release of the person

The scope of habeas corpus writ petition has been widened by the Supreme Court. Now you can also file it for the violation of fundamental rights of the prisoners (eg: Sunil Batra vs. Delhi Administration).

The Supreme Court explains the meaning of writ petition of Habeas Corpus very well in the case of  P.S. SADASHIV SWAMI vs. STATE OF TAMIL NADU (AIR 1974 SC 2271)[1].

Thus, the features of the writ petition are as follows:

  1. Court has the authority to ask questions regarding the causes of detention of the detained person

  2. The court can issue a summon for the production of the detained person in the court

  3. If it is concluded that the detention of the person is illegal, it can order for the release of the person

Related Read: Legal Notice for Breach of Contract

One can file the writ petition of Habeas Corpus in any of the courts, be it High Court or the Supreme Court. Also, one can issue it under the following circumstances where:

  1. The person has been detained but has not been produced before the magistrate within 24 hours of arrest

  2. The arrest has been made without any violation of law done by the person

  3. The arrest has been made for an unconstitutional law i.e. a law against the provisions of the Indian Constitution

  4. Detention is done with malafide intent, or with the intent to harm the persons

Who can file a writ of Habeas Corpus?

Generally, the person who is an illegal detainee files the writ of habeas corpus.

To begin the writ process for filing a petition of Habeas Corpus, one can file it and issue it against any public authority or any particular individual.

However, in certain cases, the court may allow other people to file a writ of habeas corpus on behalf of the detained person, who is their friend or relative.

Writ of Mandamus

Mandamus is a Latin word meaning ‘we command’. Mandamus is a court writ whereby the higher courts orders the lower court, tribunal, forum or any other public authority to do an act which otherwise also falls under the purview of their duty.

One issues the writ of mandamus when a public officer fails to perform his/her official duty or something which forms part of his/her official duty.

Writ of Mandamus is a matter of grace and not a matter of right. But it is the discretionary power of the court to allow the writ of mandamus.

This means - if the court thinks that there may have been a failure in performing the duty by the lower court or public authority, then the court may allow the writ of mandamus.

The essential requirements of the Mandamus writ petition for the court were described by the Supreme Court in the case of MANI SHOBHREJ JAIN vs STATE OF HARYANA (1977 (1) SCC 486)[2].

The court laid down the following requirements of the writ of mandamus:

  1. There should be a legal right in existence
  2. The legal right should be enforceable by the court
  3. Enforcement of such a right must impose a responsibility of per on a person, public authority, corporation or government
  4. Such duty is of public nature

Writ of mandamus can be issued against the following :

  1. An individual or a private body
  2. If the duty which is the subject matter is discretionary and not mandatory
  3. It can be issued against the president or the governor of the state
  4. Against an acting chief justice
  5. To enforce a private contract

Who can file the Writ of Mandamus?

Any person - be it an individual or a private body can file for the court petition under the writ of mandamus, so long as they have legal rights in the concerned matter to do so.

Writ of Prohibition

As the name suggests, the writ of prohibition is a court petition issued either by the Supreme Court or High Court to prohibit.

When the lower courts including the tribunals, forums or any public authority (magistrate, commissions or any other judicial officers) do something which exceeds their jurisdiction the Supreme Court or High Court prohibits them by issuing the writ of prohibition.

Prohibition writ for the court is issued to stop or put a stay on the power exercised by the authority and is commonly known as stay order.

In India, a writ petition which is issued against the proceedings going on in lower courts and in such proceeding the lower court is exceeding its powers.

Once the writ of prohibition is allowed either by the Supreme Court or in High Court the proceedings of the lower court come to an end.

The Supreme Court in the case of GOVIND MENON vs. UOI (AIR 1967 SC 1893)[3] laid down the conditions in which one can issue the writ of prohibition. The conditions by the court are:

  1. When there is an excess of jurisdiction, or
  2. When there is an absence of jurisdiction.

Difference between Mandamus and Prohibition

Top Read: Law on Anticipatory Breach of Contract

Difference between Mandamus and Prohibition

  1. In the Writ of Mandamus, where the court like the High Court, directs the performance of an activity to a lower court. Whereas in the Writ of Prohibition, the higher court like the Supreme Court orders to stop doing something which is in excess of their jurisdiction.
  2. You can issue the writ of mandamus against any judicial, quasi-judicial and administrative authority. Whereas you can issue a writ of prohibition only against judicial or quasi-judicial authority and not against the administrative authorities.
  • Writ of Certiorari

In the literal sense, the word certiorari means, ‘to be certified’.

One can issue the writ of certiorari by the Apex court for transfer of the matter to it or any superior authority for proper consideration.

You can issue the writ of certiorari against the inferior court or tribunal. (eg: a high court writ petition can be issued against lower district courts)

In simple terms, one can issue the writ of certiorari when the subordinate courts or the quasi-judicial bodies act in:

  1. The absence of their jurisdiction, or
  2. Exceeds their jurisdiction or
  3. Fails to make use of their jurisdiction

In the case of STATE OF UP vs MOHAMMED NOOR (AIR 1958 SC 816)[4], the supreme court stated that one can issue the writ of certiorari. To mainly reform the jurisdiction-related mistakes of the inferior court or tribunal.

Subsequently, in another judgment of HARI VISHNU KAMATH vs. AHMED ISHAQ (AIR 1995 SC 233)[5]. The Supreme Court held that one can only issue the writ of certiorari to correct the errors apparent on the face of records, but not for the correction of an error of fact.

The Essential Condition for Writ of Certiorari

  1. There should be court, tribunal or an officer having the legal authority to determine the question with a duty to act judicially
  2. Such a court, tribunal or officer must have passed an order acting without jurisdiction. Or in excess of the judicial authority vested by law in such court, tribunal or officer.
  3. The order could also be against the principles of natural justice. Or the order could contain an error of judgment in appreciating the facts of the case
  • Writ of Quo-Warranto

Writ of quo warranto means a writ that you can be issued to restrain a person from acting in the capacity of public office to which he/she does not have the entitlement.

Here, the term Quo-Warranto means, ‘by what authority’ or, ‘on whose authority is one holding a public office’.

For example:

  1. There is a vacancy in the government and by giving a job to a 63-year-old person, they fill that vacancy 
  2. But since, the retirement age is 60 years, so in this case, one can file a writ of quo-warranto to remove such person from the public office

The supreme court in the case of UNIVERSITY OF MYSORE vs. GOVIND RAO[6] laid down the requirements of the petition of quo-warranto which are as follows:

  1. A disputed post must be the public post
  2. The post should be held by the person without any legal authority
  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 do I file a writ petition?

As discussed earlier, both civil or criminal writ petition can be filed in both the High Court and the Supreme Court under Article 226 and Article 32 of the Constitution respectively.

The stepwise procedure of filing a petition at both the High Court and Supreme Court is as follows:

  • Draft writ petition – Hire top civil lawyers to help you with the overall procedure of drafting and representation in court. You can find writ petition format here.

  • After drafting, you can file the petition at the filing counter in court

  • On the date of hearing, the court will admit the petition and send a notice to the other party

  • Then, the court will fix another date for the hearing. This will be in the presence of such other party if it chooses to appear

  • Here the court will finally consider all the contents of the petition, thereby granting a relief accordingly

Who can help you?

Whether you need help to draft writ petition format or want to know about the different stages of the writ petition, MyAdvo, a legal tech facilitator helps you in this.

From a network of 10,000+ lawyers that are spread across 500+ districts in India are onboard with MyAdvo. Therefore, making it one of India’s leading legal-tech service provider.

Not only do we let you find the lawyer anywhere in India online, we'll also educate you on the different types of writs, how to file for civil writ petition or criminal, how the process of the writ in the high court and supreme court works, etc.

In fact, with MyAdvo you get awareness on all legal topics & issues. We help you find solutions like providing online writ understanding, consistently updating you about your writ status, etc.

MyAdvo acts as Client's legal concierge providing technology solutions for Lawyer Discovery, Price Discovery and Case updates. With the use of technological solutions, MyAdvo matches the client’s requirements with the lawyer based on expertise, location etc.

All you have to do is connect with us at support@myadvo.in or call us at +91-9811782573 and express your concerns right away and we’ll look into the rest.

 

Reviewed by:
Antim Amlan
Associate - Legal, MyAdvo Techserve Pvt. Ltd.
Published on 27th Aug, 2019
59,608 views

Antim Amlan is the in-house corporate counsel for MyAdvo and has been associated since the inception of the legal team.

Antim is a graduate from National Law University Odisha and has the expertise of consulting several corporates on litigation strategies, due diligence projects, regulatory compliance & licensing. He also advises corporates on structuring of the work processes based on subject matter and curating suitable legal solutions that benefit the corporate clients. He is an avid blogger and has interest in Corporate, Banking and Finance laws.

LinkedIn: https://www.linkedin.com/in/antimamlan

Email: antim@myadvo.in

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