A BRIEF OVERVIEW OF WRIT AND WRIT PETITION

CONCEPT AND ORIGIN OF WRIT

The origin of Writs took place in the English judicial system, with the development of English law from folk courts. The law of Writs originated from orders passed by the King’s Bench in England. Writ was mainly a royal order, which was issued under the Royal Seal. It used to be issued on a petition presented to the king in council for exercise of the extra-ordinary judicial powers based on a particular matter. As per Common law, ‘Writ is a formal written order issued by a body with administrative or judicial jurisdiction’ which we call as ‘court.’ Writs took different names in various phases of historical development. The common law courts then worked under various restrictions and it had many limitations too. The remedies mentioned in the law were of limited scope and thus many cases fell beyond its jurisdiction. In such cases, the courts had no power to grant relief. So, it became needful to file petition to the king in council to implement their extra-ordinary judicial powers. For such petitions, a written order was issued under the name of the kings- popularly known as a ‘Writ.’ With passage of time, Writs came out of the ambit of the royals and was made available to the common public.

INTRODUCTION OF ‘WRIT’ IN INDIA

Writs were first introduced in India in the year 1774 by a Royal Charter of Britain. During this period, The East India Company was to be subjected to parliamentary control. Under the Regulating Act, 1773 and a charter of 1774, a Supreme Court was established in Calcutta (Kolkata). Under similar charters, supreme courts were also set up in Madras (Chennai) and Bombay (Mumbai). Later, under the High Courts’ Act 1861, these courts were replaced by High Courts in the year 1862. The power to issue Writs in India was confined only to these three High Courts within their jurisdictions. The writs of ‘prohibition’ and ‘certiorari’ came into the picture. The other High Courts didn’t enjoy the power to issue Writs. After independence, in 1860, the Constitution of free India came into force. The authority to issue writs was then provided in the Indian Constitution.

DEFINITION

Merriam-Webster dictionary defines Writs as ‘an order or mandatory process in writing issued in the name of the sovereign or of a court or judicial officer commanding the person to whom it is directed to perform or refrain from performing an act specified therein.’ A Writ is a written official order issued by the court. The said order can be in the form of warrant, direction, command etc. Writs can be issued by the High Courts Under Article 226 of the Indian Constitution and by the Supreme Court Under Article 32 of the Constitution. Writs can be issued when any of the fundamental rights of an individual is violated. It can be issued against any organ of the government or any statutory creation. The concept writs and order though seem similar, these differ in the aspect that writs are generally used to grant extraordinary relief whereas an order can be passed in any matter. All writs are therefore orders, but all orders can’t be called as writs. A writ is different from appeal as well. An appeal is a petition to a higher court by the losing party in a litigation to overturn a lower court’s order. A writ is an instruction from a higher court ordering a lower court or government official to take a certain action in accordance with the law.

There are five different kinds of writs provided under Indian Constitution namely Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo-Warranto. There is no such classification of ‘order’ and ‘appeal.’

TYPES OF WRITS

1. Habeas Corpus

Habeas Corpus is a Latin term which literally means ‘to have the body of.’ It is a writ directed to the person detaining another and commanding him to produce the body of the prisoner at a certain time before the court. This writ is issued for the protection of personal liberty of a person. It is an extraordinary remedy used to challenge the confinement or restraint. The principal aim of the writ is to ensure swift judicial review of alleged unlawful detention on freedom of the prisoner or detention. The great value of the writ is that it enables immediate determination of the right of a person as to his freedom.

For instance: A person was sitting in the local ground. A police officer came and arrested him and put him inside lockup. There can be two reasons for this detention- lawful or unlawful. If such detention is unlawful i.e. the police had no proper legal reason to arrest that person, the fundamental right of that person Under Article 21 is hampered. In such case, any legal representative of that arrested person, be it friends, family can appeal to the court for issuing writ of Habeus corpus against the state(police).

Case laws: Selvaraj v. The State (Madras High Court, 22^nd June 2018)

                   Nilabati Behra v. The State of Orissa

Writ of Habeas corpus can also be enforced against non-state i.e. any private individual.

Illustration: A zamindar gave a huge amount of loan to a farmer and the farmer couldn’t repay that in due time. As a result, the zamindar kidnapped that farmer from his home and locked him inside a storeroom in his house. He was not allowed to move outside. This was a violation of personal liberty of the farmer. Violation of personal liberty means infringement of fundamental right Under Article 21 of the constitution. This is an illegal detention. In this type of cases also, writ of Habeas corpus can be filed against that zamindar.

Case laws: Seethalakshmi v. The Commissioner of Police (Madras High Court, 22^nd June 2018)

                   Radhey Shyam and Another v. Chhabi Nath and Others

This writ is important because it protects individual’s freedom from a state acting illegally. It safeguards one’s rights and personal liberty. It is known as the ‘first security of civil liberty.’ The writ of Habeas Corpus was famously used in India during the Emergency declared in 1975 to question the detainment of persons under the Maintenance of Internal Security Act, 1971. A relevant example in this aspect is Additional District Magistrate of Jabalpur v. Shiv Kant Shukla . This case is also known as Habeas corpus case.

   Conditions for the refusal of writ of Habeas corpus:

• When the court doesn’t have the territorial jurisdiction over the detainer.
• When the detention of a person is connected with the order of the court.
• When the person detained is already being free.
• When the imprisonment has been legitimized by the removal of the defects.
• When the competent court dismisses the petition on the grounds of merits.

2. Mandamus

Mandamus is a Latin term meaning ‘we command.’ According to Black’s law dictionary, Mandamus is a writ issued by a court to compel performance of a particular act by lower court or a governmental officer or body, to correct a prior action or failure to act. The writ issued compels any person or governmental department to follow the law and perform any duty required. Mandamus is issued to enforce a mandatory duty which may not necessarily be a statutory duty.

Illustration: P is a public employee and he has a certain duty under law to perform for Q. But P doesn’t fulfil it. Being aggrieved, Q approached the High court demanding that the duty must be done. The court after examining will file a writ of Mandamus against P and thus P is bound to perform it.

The function of mandamus is to keep the public authorities within the limits of their jurisdiction while exercising public functions. Writ of mandamus cannot be issued against an individual or a private body, against the president or the governor of the state, against an acting chief justice and also to enforce a private contract. In the above-mentioned illustration, if P had been running a private business and he has a certain duty to perform for Q which he fails to do. In such case Q cannot approach the court for issuance of writ of Mandamus as this writ is not applicable against individuals or private person.

Case Laws:  State of Mysore v K.N.Chandrasekhara

                     State of West Bengal v. Nuruddin

                    Bhopal Sugar Industries Ltd. v. Income Tax Officer, Bhopal

The application for Mandamus can be made not only by the affected people but also by those who want to enforce these Writs on behalf of others in the public interest. This Writ is often known as ‘wakening call’ as it awakens the sleeping authorities to perform their respective duties. It thus commands the authorities to set in action.

3. Prohibition

Writ of prohibition means to forbid or to stop and it is popularly known as ‘Stay Order.’ It is an extraordinary writ of precautionary nature. It prevents courts, tribunal, quasi-judicial bodies, and other officers from exercising their power beyond their jurisdiction or exercising those powers which are not conferred on them. 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. Thus, the writ is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction. The grounds in which Writ of Prohibition can be exercised are as follows-

• Absence or excess of Jurisdiction
• Violation of natural justice
• Unconstitutionality of statute
• Infringement of fundamental rights

Illustration: suppose A is a trial judge and he refuse to disqualify himself from presiding over the case even though the law requires that to. In such a case, the superior authority files a Writ of prohibition against him.

A Writ of prohibition can also be filed against an Appeals court if the appeal they were considering was filed in an untimely manner.

Case Laws: S. Govinda Menon vs The Union of India & Another

                  Hari Vishnu Kamath v. Ahmad Ishaaqe

                 East India Commercial Co. Ltd. v Collector of Customs

If a prohibited action already taken place the writ cannot be applied. This Writ has a much narrower scope compared to other Writs.

4. Certiorari

Certiorari is a Latin term meaning ‘to be more fully informed’ or ‘to be certified.’ It is said to have served the most effective and efficient remedy. The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court, tribunal, or quasi-judicial authority. It is a means of getting an appellate court to review a lower court’s decision. There are several conditions necessary for the issue of writ of certiorari. If the court hears the matter and gives the decision, the party will need to move to superior court to put down the decision on the ground of want of jurisdiction.

The Essential grounds for Writ of Certiorari are as follows-

• There should be court, tribunal or an officer having the legal authority to determine the question with a duty to act judicially.
• Such a court, tribunal or officer must have passed an order acting without jurisdiction.
• The order could also be against the principles of natural justice or it could contain an error of judgment.

A Certiorari Writ differs from a Writ of Prohibition in the sense that, Prohibition can be issued against a lower authority by its superior only before the occurrence of the prohibited action in order to stop it. Whereas a Certiorari Writ can be issued only after the order or decision has been announced.

Illustration:A case is running in the District court and the court has no jurisdiction to decide such cases. Still the judge of the district court tries the case and gives his decision. P, being aggrieved by such a decision, files an application in the High Court. The High Court will thus issue a Writ of Certiorari on the decision of the district court. As a result, the order of the district court will be quashed.

Case Laws: Abdulla Rowther v. Kesava Pillai and Ors.

                   Syed Yakoob v. K.S. Radhakrishnan and others

                  Rafiq Khan v State of U.P.

Writ of certiorari may not be issued against an individual, Private authority, an association or tribunals having no judicial or quasi-judicial powers and also for making declaration that an act or statute is ultra vires or unconstitutional. This Writ is corrective in nature; thus, its scope of operation is quite large.

5. Quo-Warranto

The term Quo-Warranto means ‘what is your authority.’ The writ of Quo-Warranto is used to judicially control executive action in the matter of making appointments to public offices under relevant statutory provisions.  The writ is also used to protect a citizen from being deprived of public office to which he has a right. An application for writ of Quo-Warranto can be issued. by a private person challenging the legality of appointment in public office even though the person may not have any personal interest in that or may not be aggrieved by such appointment directly.

The conditions for issuing Writ of Quo-Warranto are as follows-

• The office must be public and must be registered under a statute.
• 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.

Illustration: P is a 65 years aged man. XYZ is a public company which has a vacancy for job. The company appointed P as an employee though the age of retirement of a person is 60 years. In such a case, one can file a Writ of Quo-Warranto against P.

Case Laws:  Anand Bihari Mishra v Ram Sahay

                    University of Mysore v C.D. Govind Rao

                    Venkateshwara Rao v. Government of Andhra Pradesh

This Writ cannot be issued against a person working in any private field or any private body. The most relevant case law in this context is Anand Bihari Mishra v Ram Sahay.

SUMMARY OF WRITS

TYPE OF WRIT	MEANING	PURPOSE
Habeas Corpus	to have the body of	to release a person who has been detained unlawfully in prison or in private custody
Mandamus	We command	To compel performance of a particular act by lower court or a governmental officer or body, to correct a prior action or failure to act
Prohibition	Stay order	prevents courts, tribunal, quasi-judicial bodies, and other officers from exercising their power beyond their jurisdiction or exercising those powers which are not conferred on them
Certiorari	To be certified	to quash the order already passed by a lower court, tribunal, or quasi-judicial authority
Quo-Warranto	What is your authority	To restrain a person from holding a public office to which he is not entitled to

 

WRIT PETITION

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 simpler words, the act of issuing/filing Writs is known as Writ Petition. It is a plea before any higher court for extraordinary review. A writ petition can be filed by any aggrieved person whose Fundamental Rights are violated Under Article 226 before the High Court or Under Article 32 before the Supreme Court. Supreme court grants relief only in case of violation of Fundamental rights whereas High Court grant remedies in case of violation of any other constitutional or legal right too. The Writ Jurisdiction of the High Court is thus much wider than that of the Supreme Court.

 

DIFFERENCE BETWEEN THE WRIT JURISDICTION OF THE HIGH COURT AND THE SUPREME COURT

HIGH COURT	SUPREME COURT
Given under Article 226 of the Constitution of India.	Given under Article 32 of the Indian Constitution.
Writs have validity only in the territory under the authority of the High Court or where the cause of action has arisen.	Territorial Jurisdiction is applicable throughout the country.
Wider power to deal with the issues for which the Writ petition is filed.	Power to issue writ petitions restricted to specific subject matters.
High Court grant remedies in case of violation of any other constitutional or legal right also.	Supreme court grants relief only in case of violation of Fundamental rights.

 

FILING A WRIT PETITION IN HIGH COURT

Writ Petition in the High court is to be filed Under Article 226 of the Constitution of India. The Writ can be filed for both civil and criminal cases. The procedures of filing a Writ Petition before a High Court are as follows-

• A writ petition must contain supporting affidavit, facts of the case, relevant issues or question of law, add all the documents on which the applicant will rely upon to verify his case, along with notice of motion to the other party and prayer at the end.
• The petition is filed at a filing counter in the High Court.
• If after hearing the case, it is found by the court that there is no relevant ground for admitting the case and rejected the petition on the first hearing, then it will bring an end at that moment.
• If the case is admitted by the court, a notice will be sent to the defendant party.
• The admitted Petition can still be dismissed at any time by the court.
• A new date is given by the court wherein the presence of both the concerned parties is expected.
• The court on the final date considers all the contents of the petition, thereby granting a relief accordingly.
• Court fees is not mandatory. There is alternate dispute redressal forum available in case the petitioner is not capable of appointing a lawyer.

FILING A WRIT PETITION IN THE SUPREME COURT

In Supreme court, Writ petition can be filed Under Article 32 of the Constitution of India. The subject matter of the petition must be related to more than one state because petition containing subject matter related to one state only can be filed before the High Court under Article 226 of Indian Constitution. Writs in supreme court are filed only in case of violation of Fundamental rights. A specific format given by the Supreme court must be followed.

 Steps to be followed for filing a Writ Petition in the Supreme court are as follows-

• The Writ should contain an affidavit by the petitioner, including a cover page, index along with all the relevant details.
• Writ petition under Article 226 shall be filed in writing.
• It the petition involved substantial question of law regarding the Constitution, then it should be heard by Division bench of at least 5 judges.
• If the case does not involve any substantial question of law, it can be dealt by division bench of less than 5 judges.
• All the miscellaneous applications filed along with Writ petition can be heard and decided by division bench of at least 5 judges.
• No court fees shall be imposed on Writ petition of habeas corpus or any other petition which are on criminal proceedings.

 

 

Author: SHINJINEE NAMHATA,
IFIM LAW SCHOOL, BENGALURU, KARNATAKA , FIRST YEAR BBA-LLB STUDENT