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 petition and a writ appeal are two distinct legal remedies used in India to seek judicial intervention through writs. Upon completion of proceedings, await the court’s judgment, wherein necessary orders or directives will be issued if the writ petition is granted. It aims to stop the illegal usurpation of public offices, questioning the legitimacy of someone holding a position without proper authorization. Certiorari, meaning “certified” in Latin, allows the Supreme Court to review decisions of lower courts.
Writ petitions in India and how to file them
At Law & Schriener, LLC, our criminal lawyers pride ourselves on our meticulous attention to detail, our commitment to building strong attorney-client relationships, and our expertise in the legal field. What drives us is our dedication to vindicating people’s rights and making sure that everyone has a fair shot at their case. We’re deeply committed to helping those who are imprisoned to make sure that the legal process is conducted correctly and justly. Writs have a significant impact on both administrative and judicial decision-making processes. Understanding these effects sheds light on their role in shaping legal outcomes.
Mandamus, meaning “we command” in Latin, is a directive from a higher court to a lower authority, compelling the performance of a duty within its jurisdiction. If a public official neglects their duty, a writ of mandamus may be issued, instructing them to fulfill their responsibilities. A writ petition may be filed against a private individual or organization in certain circumstances, such as when the individual or organization has violated the fundamental rights of the petitioner. Adjudication in reference to writ petitions is the process of hearing and deciding on a writ petition filed in the Indian courts. Any individual whose fundamental rights as guaranteed under Part-III of the Indian Constitution is infringed or violated, can file a writ petition in a court of law.
A petition essentially refers to a formal written request, including different types of petitions, signed by an individual or in unison to appeal to an authority concerning a particular cause. However, the legal framework and flow of petitions often change with the cause it is being appealed for. To make the process of appeal easier for the masses, the Indian constitution has laid down 5 types of writ petitions, the process of filing, and the course of an appeal. Article 226 not only gives the power to issue direction, orders or writs not enforce fundamental rights but also for the enforcement of other rights too.
Types of writ petitions
If the court finds that the officer is acting beyond his authority, then the court can order to release the prisoner. A writ petition is an application filed before a Court, requesting to issue a specific writ. There are often specific time limits within which you must file the petition after the cause of action arises. Article 226 vests High Courts with the authority to issue writs, orders, or directives within their territorial jurisdiction, ensuring the enforcement of Fundamental Rights and addressing various other legal matters. A writ petition is a formal plea directed to a higher court, typically the High Court or Supreme Court, invoking its extraordinary authority to address Fundamental Rights violations or challenge governmental actions. Article 226 and Article 32 of the Indian Constitution provide for the filing of writ petitions for both civil and criminal cases in the High Court and the Supreme Court, respectively.
Supreme Court held that high court has the power to issue writs of mandamus in case the authority or government body has failed to exercise their discretionary duty or has wrongly exercised the discretionary conferred on them by the statue. This case is known as habeas corpus case, here it is explained, what is a writ of habeas corpus mean? Quoting Justice Khanna “writ of habeas corpus is a process of securing the liberty of an aggrieved person by providing an adequate method for immediate relief from wrongful or illegal detention. While both writ petitions and writ appeals involve writs like mandamus, certiorari, etc., they serve distinct stages in the legal process, with the petition initiating the proceedings and the appeal challenging or affirming the decisions made at lower levels. Writs act as a check on the actions of the executive and administrative authorities.
Interim relief
Moreover, there arises a need to provide justice to all and remove the bias from the system. Hence the concept of writ were introduced in Common Law for keeping a judicial eye on the work of administration. For issues related to Fundamental Rights, the Supreme Court or the High Court may have jurisdiction, depending on the specific rights involved. In democratic societies, the pursuit of justice and safeguarding Fundamental Rights are crucial. Writ petitions, as a potent legal tool, epitomize justice, accountability, and individual liberties within the legal framework.
Language used in article 226 and in article 32 is very broad and does even provides for any rigid procedure. The power not only extent to issuing of writs but also extends to issuing of direction, orders and writ also. Whereas, on application to the Supreme Court it is found that the question raised in the case before the high court was a pure question of facts and The High Court has no jurisdiction to interfere in the matters decided on facts by the tribunal. If there is a failure in considering the material evidence by the tribunal then that will become eroor on the face of record.
- Article 32 and 226 of Indian Constitution provides power to Supreme Court and High Court simultaneously of judicial review of administrative actions and also designed for the enforcement of fundamental rights, in the form of writs.
- Article 227 of the Constitution imposes power in the High Courts of superintendence which is to be very rarely exercised, only to keep tribunals and courts within the bounds of their authority.
- Therefore, the literal meaning of curative petition can be interpreted as “petition filed before the authority having ability to cure the miscarriage of justice”.
- In specific situations, even friends or relatives can submit a writ application, such as a writ of habeas corpus, on behalf of the person who is allegedly being held unlawfully.
- Wherever there is a defect in jurisdiction or power writ of certiorari must be issued.
- In the view of the High Court the appointment of ten candidates whose names were included in the list under R.
Whereas, if there arise fresh or new grounds then an application for the same can be filled and will not be barred under this rule. In the given case it was held by the supreme court that whenever a person is convicted of a criminal charge and sentence of his conviction is passes by the criminal trial court then such detention can’t be challenged on the ground of the erroneousness of the conviction. Justice Bhagwati held that the main aim of this meaning of writ petition writ is preserving the liberty and freedom of the person subjected to illegal detention and allow him to enjoy his liberty at the fullest.
- Writ of prohibition is issued to the court or any tribunal to bar them from doing something what they are about to do.
- The National Judicial Data Grid (NJDG) for the High Courts gives the current status of disposed off and pending cases under the writ jurisdiction.
- Writ petitions play a crucial role in society by protecting Fundamental Rights, scrutinizing executive and administrative actions, offering swift remedies, advocating for minorities and vulnerable groups, addressing environmental concerns through PILs, and promoting transparency and accountability in governance.
- And lastly it can be said that the application for writ of mandamus must have been made in good faith and not with ambiguous motive and ulterior purposes.
- In this case emphasis has been laid down on Article 19(1)(g) on the right to practice any profession, or to carry on any occupation, trade or business, subject, of course, as laid down in Article 19(6), to any reasonable restrictions in the interests of the general public as may be placed on it.
This Writ can be issued only when the proceedings are pending in the inferior court and not when an order has already been passed by that court. Thus, this Writ is a preemptive remedy which is exercised by the superior court to prevent the inferior court from acting outside its jurisdiction. Both the Writs Certiorari and Prohibition appear to be the same but there is one major difference between the two. In the Writ of Prohibition, the superior court issues the writ before the final order is passed by the inferior court and therefore this is a preventive remedy, while in the Writ of Certiorari, the superior court issues the Writ after the inferior court has made the final order. Thus the Writ of Certiorari is a corrective remedy by which the order of the inferior court is quashed. Furthermore, the Supreme Court and the High Court have admitted the letters, postcards, telegrams, and even newspaper items as writ petitions under Article 32 and 226 respectively of Indian Constitution.
Know what a writ petition is, what are its types in the Indian Constitution, how you can file one in Indian High Court or Supreme Court, and the format of each writ with a sample. The court delivers a judgment based on the arguments presented and the legal principles applicable to the case. Pay the prescribed filing fees and adhere to the court’s procedural requirements. Writ petitions are not the only remedy in case of violation of rights and other remedies, such as regular suits, may also be available.