The Indian constitution has provided us with different rights that help the regulation of the country as well as an individual. However, violation of these rights can cause chaos and will be meaningless if not protected well. To safeguard fundamental rights, we are given constitutional remedies that have been discussed mainly in Articles- 13, 32, 226 and 359 that protect our fundamental rights.
In case you find that your fundamental rights are being violated, you can file or draft a writ petition under Article 32 and 226 of the Indian Constitution to approach the Supreme Court and High Court respectively. The petition of the writ can be filed first in the high court, but if it doesn’t give a suitable judgment, it can then be submitted to the Supreme Court for the final verdict. It can also be submitted in SC directly, but then you should give the reason for not approaching the high court first.
What is a Writ Petition
The writ is a type of remedy that commands lower authorities to act in a specific way. It is a form of written command in the name of the court.
You can file a writ petition in the High Court under Article 226 of the Indian constitution and in the Supreme Court under Article 32 of the Indian Constitution. The Supreme Court is given the highest authority by the Indian Constitution to issue Writ Petitions in India. Writ petition helps in safeguarding Fundamental rights and acts as the guarantor of all other fundamental rights in India and prepares a provision to the Right of Constitutional Remedies for every citizen.
Types in the Indian Constitution?
We have 5 types of rights. You can file the petition either before the High Court or Supreme Court:
Writ of Habeas Corpus
“Regarded as the heart and soul of the constitution, this writ petition is used when someone is illegally detained. The term ‘Habeas Corpus’ literally means that “you may have the body of”. If the supreme court finds that a person is illegally detained, it can generate an order for the release of that person.
- The writ petition can be filed under certain circumstances as follows:
- When detention is done with mendacious intent to harm the person.
- If the arrest has been made unlawfully, i.e., against the provisions of the Indian Constitution
- When the arrest was made, but the detainee has not been produced before the magistrate within 24 hours of arrest
- When the person is arrested without violating any law.
Who can file – The petition can be filed by any family member, relative or friend of the detainee on behalf of the detained person. It can be issued against any public authority or individual.
Case- P.S. Sadashiv Swami v/s State of Tamil Nadu
Writ of Mandamus
The Latin word Mandamus means “we command.” The writ allows the higher courts to order the lower court, forum, university, statutory or non-statutory body, tribunal, or other public authorities to perform their official duty. The court has the discretionary power to make sure that the authorities are performing their duty or not.
The writ of mandamus can be issued against an individual, a private body, acting chief justice, the president or the governor of the state if they are not performing their duty well. The writ of mandamus can be issued only if the person holds the legal power that is enforceable by the law. As the writ follows a duty of public nature, the person should be responsible to hold it.
Who can file- Anyone can file it – an individual, a private or government body, as long as they have the legal power to do so.
Case – Mani Shobhrej Jain vs the State of Haryana
Writ of Certiorari
Certiorari means ‘to be certified’. Through this writ, the High court and Supreme Court can command lower courts to submit their records for review, to check whether or not the judgments passed by the Lower Court are legal. The writ of certiorari can be issued against any lower authority, quasi-judicial bodies or lower district court to request any superior authority to look into the matter for proper consideration. If their judgments are found illegal, then those judgments are quashed and have no value.
The writ of certiorari can come into effect in the case of:
- Lack/absence of jurisdiction
- Excess of judicial authority
- Violation of principles of natural justice
- Improper or unconstitutional use of jurisdiction
Case- The State Of UP vs Mohammed Noor & Hari Vishnu Kamath v/s Ahmed Ishaq & A. K. Kripak vs Union of India
Writ of Prohibition
We just read that writ of certiorari can be applied to quash an illegal decision by the lower court. However, the writ of a prohibition allows you to put a stay on the judgment by lower courts even before the judgment is declared. To put it simply, the writ of prohibition can be presented, in either the Supreme Court or High Court, to prohibit the decision issued by tribunals, forums, magistrates, commissions or any other judicial officers or other higher authorities. It can be issued against an ongoing proceeding wherein the lower court is exceeding its power. If the prohibition is allowed by SC or HC, a lower court proceeding will come to an end.
Case- Govind Menon v/s UOI
Writ of Quo Warranto
Quo Warranto means ‘by what authority. It empowers you to restrain a person from acting in the capacity of public office. It gives you the power to challenge his authority and to file against him in case he doesn’t deserve the entitlement. You can question the public officer and that by what authority is he assuming the office. For instance, if someone gets a job without qualifying for the prerequisite entrance test, then his position/authority can be questioned.
When to file – The post held by the person should not be legally assigned to him. Also, the post should be public.
Case- The University Of Mysore v/s Govind Rao
How to File a Writ Petition?
To file a writ petition, follow these steps:
- Draft writ petition – Every petition has a different format and may have different documentation requirements. Seek professional help to understand the overall drafting procedure drafting and representation in court. Look for a format online to do it on your own.
- Once you draft the petition, it can be filed at the filing counter in court.
- The court will sign you a hearing date,
- On the date of the hearing, the court will admit the petition and send a notice to the other party to be present.
- After the final review, the court will give its verdict in favor of justice.
Conclusion
As an Indian citizen, knowing the power of writs will help you utilize them appropriately.
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