Palak Singh
Last updated: 02 May 2020
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A writ petition is an order by a higher court to the lower court or courts directing them to act or stop them from doing a certain activity. In India one can file writ under Article 32 in the Supreme Court and under Article 226 in the High Court.Article 32 and Article 226 of the Indian constitution elaborate on the process and meaning of the writ petition. The jurisdiction with the High Courts (Article 226) with regards to a writ petition is wider and extends to constitutional rights too.
There are five types of writs as stated under Article 32: habeas corpus, mandamus, quo warranto, prohibition and certiorari.
1. WRIT OF HABEAS CORPUS: The literal meaning of the term Habeas Corpus means, ‘you may have the body of.’ One may file this writ when a person is being illegally. This means that if the court finds out that any person is being detained illegally, then it can order the authority that is holding that person unlawfully to the release him/her. The scope of habeas corpus writ petition has been widened by the Supreme Court. Now one can also file it for the violation of fundamental rights of the prisoners (as under the case of Sunil Batra vs. Delhi Administration).
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.
2. WRIT OF MANDAMUS: The literal translation of mandamus is “we command”.Mandamus is a court writ whereby the higher courts orders the lower court, tribunal, forum or any other public authority to do any act which otherwise also falls under the purview of their duty. The court laid down the following requirements: -
a. There should existence of a legal right
b. The legal right should be enforceable by the court of law
c. Enforcement of such right must impose a responsibility on a person/public authority/corporation/government
d. Such duty is of public nature.
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.
3. WRIT OF QUO WARRANTO: It literally translates to “by what authority” or “on whose authority is one holding a public office”. This writ is issued against a government official or public post to challenge a person holding a post in the office. This writ can be filed if the following conditions are met: -
a. The person against whom the writ is filed must hold a public post.
b. There must be a violation of law in holding this post.
c. The office must be a substantive one and not merely the function or employment if a servant at the will and during the pleasure of another.
4. WRIT OF PROHIBITION: As the name suggests, this writ 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’. A writ of prohibition can be filed either when there is an excess of jurisdiction or when there is an absence of jurisdiction. Hence, the following either of the following condition is necessary: -
a. If there is an excess of jurisdiction, or
b. If there is an absence of jurisdiction.
5. WRIT OF CERTIORARI: In layman’s term, it means “to certify”. Certiorari is a curative writ. When the Court is of the opinion that a lower court or a tribunal has passed an order which is beyond its powers or committed an error of law then, through the writ of certiorari, it may transfer the case to itself or quash the order passed by the lower court or tribunal. The following are the conditions for the same: -
a. 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.
b. 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.
c. 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
PROCEDURE OF FILING A WRIT PETITION:
The process to file a writ petition in high court is fairly simple, but it is important to establish a valid case and file the correct writ with the court to ensure justice.
1. Draft a petition: the first and the most step involved in filing a writ petition is drafting a petition. The format for the same has been given below.
2. Petition when ready needs to be filed at the filing counter of the court.
3. Date of the hearing will then be set.
4. Then on this date of hearing, the court decides whether it wants to accept the petition or reject it.
5. The court would issue a notice to the other party regarding the same.
6. Then, another date for the hearing will be fixed with both the parties present
7. Finally, the court will consider all the details and facts of the petition.
8. Relief will be granted accordingly.
A. Synopsis and the index included in the file which should have a coverpage.
B. The main Petition (Format on last page)
C. A writ petition should be accompanied with the following documents: -
a. Affidavit by petitioner
b. Annexures as referred in the petition
c. Court fee
d. Index (format on the next page)
e. Cover page
f. Any application if filed
g. Memo of appearance
h. Application seeking permission to appear and argue in person (in case of petition filed by petitioner-in-person), Court fee Rs.120/-
FORMAT OF THE PETITION:
IN THE SUPREME COURT OF INDIA
ORIGINAL JURISDICTION
CIVIL WRIT PETITION NO._________ OF 2020
…………………………Petitioner
PETITION UNDER ARTICLE________OF THE CONSTITUTION OF INDIA FOR ISSUANCE OF A WRIT IN THE NATURE OF __________UNDER ARTICLE______OF THE CONSTITUTION OF INDIA.
HON’BLE CHIEF JUSTICE OF INDIA AND HIS LORDSHIP'S COMPANION JUSTICES OF THE SUPREME COURT OF INDIA. THE HUMBLE PETITION OF THE PETITIONER ABOVENAMED.
MOST RESPECTFULLY SHOWETH THE FOLLOWING:
1. Facts of the case: (whatever is the fact of the case, it needs to be stated in this section of the petition. The petition should be on point and should state every aspect of the case. No fact shall be left out.)
2. Question(s) of law: (A question of law involves the interpretation of principles that are potentially applicable to other cases.)
3. Grounds: (A petition should be maintainable)
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.
In the light of the above arguments and premises, it is prayed that this Hon’ble Court may be pleased:
(i) …………………………………
(ii) …………………………………
(iii) Or pass any such other orders as may be deemed necessary on the facts and in the circumstances if the case, by the court.
FILED BY:
(ADVOCATE/PETITIONER-IN-PERSON)
DRAWN ON:
FILED ON:
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