Writ Petition – Types, Important Judgements, How and When to File | Lawyer for Writ Petition

Writ Petition - Types, Important Judgements, How and When to File | Lawyer for Writ Petition

WRITS

Written by: Shagun Sharma

Writ is a document or written order from the Hon’ble Supreme Court or High Court that directs or commands constitutional remedies for the citizen of India against violation of their Fundamental rights. You can hire a Lawyer/Advocate to file a Writ Petition on your behalf.

Under Article 32 and Article 226 an Indian citizen can seek constitutional remedies from the Hon’ble Supreme Court and the High Court respectively, against violation of their Fundamental rights. It is preferable to go to the High Court first and only thereafter approach the Supreme Court in order to file any writ. Your Lawyer for Writ Petition will be able to guide you better according to the facts of the matter.

The High Courts have the right to issue writs within the territory of the state which the High Court is concerned with.

Fundamental rights are mentioned in part III under Article 12-35 of the Indian Constitution. But merely providing fundamental rights to the citizens is not sufficient, it is essential to protect them as well. Therefore, these rights can be protected under Article 32 and Article 226 of Indian Constitution. We can approach the Hon’ble Supreme Court under Article 32 and Hon’ble High court under Article 226 to seek remedy.

The right to approach the Hon’ble Supreme Court in case of a violation of a Fundamental Right is in itself a Fundamental Right since it is included in Part III of the Constitution.

A writ petition can be filed by any person whose Fundamental Rights have been infringed by the State. However, you need to find the best Lawyer for Writ Petition.

TYPES OF WRITS IN INDIA

The Hon’ble Supreme Court and High Court can issue 5 kinds of writs to defend the Fundamental Rights of a citizen of India. They are:

  1. HABEAS CORPUS
  2. MANDAMUS
  3. PROHIBITION
  4. CERTIORARI
  5. QUO-WARRANTO

HABEAS CORPUS

Habeas corpus literally means “to have a body of”.

This means if a person has been unlawfully detained or imprisoned then the court directs the person detained to be brought before the court to examine the legality of his\her detention. If the court held that the detention is unlawful, then the person is released immediately.

Habeas corpus can be issued in the following cases:-

  • The detention was not done in accordance with the procedure laid down by the law.
  • The person was not produced before a magistrate within 24 hours of his/ her arrest.
  • The person was arrested even though he did not violate any law.
  • Arrest was made under a law that is unconstitutional.

Habeas corpus cannot be issued in the following cases:-

  • When detention is lawful
  • Detention is by a competent court
  • When proceeding is for contempt of legislature or a court
  • Detention is outside the jurisdiction of the court

 SUNIL BATRA V/S DELHI ADMINISTRATION (1980 AIR 1579)

In this case, a co-convict wrote a letter to Supreme Court on the maltreatment of the prisoners. The Supreme Court stated that the writ can not only be used against illegal arrest of the prisoner but also for his protection against any maltreatment or inhuman behaviour by detaining authorities.

MANDAMUS

Mandamus literally means “we command”.

This writ is issued by the court to a public authority to perform the legal duties which it has not performed or refused to perform. It can be issued against a public official, public corporation, tribunal, inferior court or the government.

It cannot be issued against a private individual or body, the president or governors of states or against a working chief justice.

Mandamus can be issued in the following cases:-

  • The duty in question is discretionary and not mandatory.
  • Where such direction involves violation of any law.
  • For the performance of a non-statutory function.
  • Performance of duty involves rights of purely private nature.
  • Where there is any other remedy available under the law.

Mandamus can’t be issued in the following cases:-

  • To ensure departmental instructions that does not possess statutory force.
  • To order someone to work when the kind of work is discretionary and not mandatory.
  • To enforce a contractual obligations.
  • Cannot be issued against Indian President or state governors.
  • Against the Chief Justice of High Court acting in a judicial capacity.

ALL INDIA TEA TRADING CO. VS. S.D.O (AIR 1962 Ass 20)

The land acquisition officer refused to pay the interest on compensation amount.

A writ of mandamus was issued against the land acquisition officer directing him to reconsider the application.

PROHIBITION

Prohibition literally means “to forbid”.

A higher court can issue the writ of prohibition against the lower court to prevent from exceeding its jurisdiction. This writ can be issued against lower courts, tribunals and other quasi-judicial authorities from exceeding beyond their authority.

  • Writ of Prohibition can only be issued against judicial and quasi-judicial authorities.
  • It cannot be issued against administrative authorities, legislative bodies and private individuals or bodies.

S. GOVINDA MENON VS. UNION OF INDIA

In this case, the Hon’ble Supreme Court explained the court’s Jurisdiction to grant a writ of prohibition. Here it was stated that the power to issue a writ of prohibition is primarily supervisory, and the primary goal of the writ of prohibition is to prevent inferior courts or tribunals from exceeding their jurisdictional limits.

CERTIORARI

Certiorari in literal terms means “to certify”.

This writ is issued by the Hon’ble Supreme Court or High Court to subordinate court or tribunals as they have acted without their jurisdiction or by assuming jurisdiction where it does not exist. It is also applied where the subordinate court acts in excess of its jurisdiction by way of overstepping or crossing the limits of jurisdiction. Also when a subordinate court acts in violation of principles of natural justice where there is no procedure specified.

PROVINCE OF BOMBAY V/S KHUSHAL DAS (AIR 1950 SC 22)
In this case, it was held by the court that whenever any competent authority having the legal authority to decide on a matter affecting the rights of the parties exceeds the authority, the writ of certiorari lies.

QUO- WARRANTO

Quo-warranto means “by what authority”.

This writ is issued to prevent a person from holding an office which he is not entitled to. It cannot be issued against a private office.

Quo-warranto can be issued in the following cases:-

  • The public office is wrongfully assumed by the private person.
  • The office was created by the constitution or law and the person holding the office is not qualified to hold the office under the constitution or law.
  • The term of the public office must be of a permanent nature.
  • The nature of duties arising from the office must be public.

KUMAR PADMA PADAM PRASAD V.S UNION OF INDIA (AIR 1992 SC 1213)

Mr K.N. Srivastava was appointed as a Judge of the Guwahati High Court by the President of India by a warrant of appointment under his seal. A petition was filed for issuing a writ of quo-warranto contending that Mr K.N. Srivastava was not qualified for the office. It was held by the Hon’ble Supreme Court that since Mr K.N. Srivastava was not qualified, quo warranto could be issued and accordingly the appointment of Mr K.N. Srivastava was quashed.

How to Find the Best Lawyer for Writ Petition Filing?

If you are looking for a Lawyer for Writ Petition, important factor to consider is the lawyer’s experience while dealing with Writ Petitions. Some lawyers may have worked on more complex cases than others, which could lead to better results. Additionally, review their online reviews to see if anyone has had negative experiences with them. You can also contact Century Law Firm now.

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