What is a Writ Petition? How do you file one in Court?

A writ is a legal instrument similar to a written order issued by a higher court. These writs are bestowed upon lower courts or individuals when the fundamental rights of a citizen are violated in India. Under Article 32 of the Indian Constitution, an authority or entity can issue writs to the Supreme Court. This means they can issue an order to the Supreme Court of India under the article above of the constitution. This gives the authority a mechanism to seek judicial relief or remedy for its grievances or complaints against the government or any other person or entity. The High Courts under Article 226. These writs challenge judgments by lower courts or individuals, all by their respective jurisdictions. Both articles delineate the types of writs available, the procedural steps involved, and the prerequisites for a petitioner in case of a violation of fundamental rights.

In the Indian legal system, you can file or draft a writ petition under Article 226 in the High Court and under Article 32 of the Indian Constitution in the Supreme Court. Article 32 and Article 226 of the Indian constitution elaborate on the process and meaning of the writ petition. Or else, at any point in time, you can consult an expert lawyer to draft a writ petition for you. You can also file a criminal or civil writ petition in the High Court or the Supreme Court, depending on the case matter. In case the High Court doesn’t give a suitable judgment, you can then submit the petition of the writ in the Supreme Court.

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.

A . What is a Writ Petition ?

A writ is a legal instrument similar to a written order issued by a higher court. These writs are bestowed upon lower courts or individuals when the fundamental rights of a citizen are violated in India. Under Article 32 of the Indian Constitution, an authority or entity can issue writs to the Supreme Court. This means they can issue an order to the Supreme Court of India under the article above of the constitution. This gives the authority a mechanism to seek judicial relief or remedy for its grievances or complaints against the government or any other person or entity. The High Courts under Article 226. These writs challenge judgments by lower courts or individuals, all by their respective jurisdictions. Both articles delineate the types of writs available, the procedural steps involved, and the prerequisites for a petitioner in case of a violation of fundamental rights.

B. The Significance of Writ Petitions

A writ petition serves as a legal remedy when an individual's fundamental rights have been infringed upon or when they have been subjected to injustice. It plays a pivotal role for several reasons:

1. Protecting Individuals from Unjust Judicial Orders: Writ petitions protect individuals against unjust decisions handed down by the judiciary.
2. Providing a Recourse in Case of Accusations: They offer an alternative for those accused, ensuring that even those charged with wrongdoing receive a fair chance to defend themselves.
3. Ensuring Unobstructed Justice: Writs guarantee that justice is served impartially and without hindrance.  

C. Who may submit a Writ Application:

The fundamental principle is that a person allegedly being held unlawfully can file a writ application. In some situations, if someone you know is arrested or held in custody, requesting a writ of habeas corpus may be possible. This is a legal term that refers to a petition made by a detained or imprisoned person to be brought before a court or judge.This particular writ requests that the person in custody be presented before the court, allowing for an examination of the evidence and determining whether the detention is lawful or unlawful. The possibility of the detainee being held incommunicado is one of the reasons why a third party may file a Habeas Corpus petition. It is important to note that there are limitations to the use of habeas corpus.

D. Eligibility to apply for a Writ

In general, it is permissible to file a writ application for someone allegedly being held unlawfully. In some situations where a person is detained, their friend or relative may file a Habeas Corpus application on their behalf. This application is meant to request the court to review the arrested person's situation to determine the legality of their detention. The primary purpose of this application is to bring the person in custody before the court for a fair review. The possibility of the detainee being held incommunicado is another reason a third party may file a Habeas Corpus petition. It is essential to understand that certain limitations apply to habeas corpus. It is primarily a procedural remedy, protecting against unlawful detention but only sometimes addressing other rights, such as the right to a fair trial.

E .Different types of Writ:

In the Indian Constitution, several types of writs exist. Articles 32 and 226 of the Indian Constitution, involve two distinct but interconnected provisions about writ jurisdiction in the Supreme Court and High Courts. Article 32 provides explicitly a constitutional remedy against the violation of fundamental rights.

1. Habeas Corpus Writ:

This writ, often considered vital for individual liberty,in latin means  for "Let us have the body." It is sought when a person is arrested, and it directs the detaining authority to bring the detained person to court to determine the legality of their detention. The Habeas Corpus write safeguards against unjustified or unsupported detention and can be pursued by the arrested individual and a person assisting them.

Format of the Writ of Habeas Corpus

Download the Sample of the Writ of Habeas Corpus

2 . Writ of Mandamus

 Derived from Latin, meaning "we command," Mandamus is a directive issued by a higher court to a lower law enforcement agency or public authority, compelling them to perform an act within their jurisdiction. It is issued to ensure the fulfilment of civic obligations and uphold private rights held by the government. This writ is a means to compel public officials to carry out their neglected duties.

Format of the Writ of Mandamus

Download the Sample of the Writ of Mandamus

3. Writ of Prohibition

As the name suggests, the writ of prohibition is a court petition issued either by the Supreme Court or High Court to prohibit.

"When the lower courts including the tribunals, forums or any public authority (magistrate, commissions or any other judicial officers) do something which exceeds their jurisdiction, the Supreme Court or High Court prohibits them by issuing the writ of prohibition," says Advocate Ankit Sharma.

Also known as a "Stay Order," this writ is employed when a lower court or authority attempts to overstep its jurisdiction or exercise its powers improperly. The Supreme Court issues this writ to prevent a lower court or tribunal from executing actions beyond its scope.

The Supreme Court in the case of GOVIND MENON vs. UOI (AIR 1967 SC 1893)[3] laid down the conditions in which one can issue the writ of prohibition. The conditions by the court are:

• When there is an excess of jurisdiction, or
• When there is an absence of jurisdiction.

Format of the Writ of Prohibition

Download the Sample of the Writ of Prohibition

Difference between Mandamus and Prohibition

• The Writ of Mandamus, where the court like the High Court, directs the performance of an activity to a lower court. Whereas in the Writ of Prohibition, the higher court like the Supreme Court orders to stop doing something which is in excess of their jurisdiction.
• You can issue the writ of mandamus against any judicial, quasi-judicial and administrative authority. Whereas you can issue a writ of prohibition only against judicial or quasi-judicial authority and not against the administrative authorities.

4. Writ of Certiorari

"Certiorari" translates to "certified." The Supreme Court employs this writ to review decisions made by lower tribunals or courts. It is issued to overturn lower court decisions only after they have been rendered. Certiorari may be granted when lower courts or authorities misbehave, exceed their jurisdiction, or fail to exercise it. It serves to correct legal errors evident from the record and may also be invoked when the principles of natural justice are disregarded.

In simple terms, one can issue the writ of certiorari when the subordinate courts or the quasi-judicial bodies act in:

• The absence of their jurisdiction, or
• Exceeds their jurisdiction or
• Fails to make use of their jurisdiction

In the case of STATE OF UP vs MOHAMMED NOOR (AIR 1958 SC 816)[4], the supreme court stated that one can issue the writ of certiorari. To mainly reform the jurisdiction-related mistakes of the inferior court or tribunal.

Subsequently, in another judgment of HARI VISHNU KAMATH vs. AHMED ISHAQ (AIR 1995 SC 233)[5]. The Supreme Court held that one can only issue the writ of certiorari to correct the errors apparent on the face of records, but not for the correction of an error of fact.

The Essential Condition for Writ of Certiorari:

• 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. Or in excess of the judicial authority vested by law in such court, tribunal or officer.
• The order could also be against the principles of natural justice. Or the order could contain an error of judgment in appreciating the facts of the case

Format of the Writ of Certiorari

Download the Sample of the Writ of Certiorari

5. Writ of Quo-Warranto

Meaning "by what authority," this writ prevents someone from unlawfully exercising the right to hold a public office. It aims to thwart individuals from usurping or occupying a public office without legal permission, challenging their right to do so.

For example:

• There is a vacancy in the government and by giving a job to a 63-year-old person, they fill that vacancy 
• But since, the retirement age is 60 years, so in this case, one can file a writ of quo-warranto to remove such person from the public office

The supreme court in the case of UNIVERSITY OF MYSORE vs. GOVIND RAO[6] laid down the requirements of the petition of quo-warranto which are as follows:

• A disputed post must be the public post
• The post should be held by the person without any legal authority
• 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.

Format of the Writ of Quo-Warranto

Download the Sample of the Writ of Quo Warranto

F . Filing a Writ Petition

To file a writ petition, follow these comprehensive steps:

Clarify the purpose of your request. Are you asking for information on the grounds for filing a claim based on violating a fundamental right? If so, provide more details about the specific right that has been violated. Provide the grounds for filing your complaint. Specifically, identify the fundamental violation that has taken place? or legal right that necessitates the filing of a writ petition. Common grounds include violations: "The right to life, liberty, equality, and freedom of speech are fundamental human rights that should be protected and upheld."

It is essential to file the writ petition in the correct court, either in a High Court or the Supreme Court, based on the nature of the case. This choice is often based on the hierarchy of courts and jurisdictional limits.

If you are thinking about filing a Writ Petition , we can help you. Let us know if you need any assistance.We recommend you seek legal advice and guidance and have a legal professional draft it. Please provide thorough and detailed information in the petition. Petitioner, respondent, case facts, and legal grounds for the writ.

Attach Supporting Documents: Include all relevant documents, affidavits, and evidence supporting the petitioner's claims. These documents are crucial for substantiating the case. To complete the petition process, it is necessary to provide an affidavit to verify its authenticity and sign it. Either the petitioner or their authorized representative should sign it.  

1. Filing the Petition: Submit the writ petition to the court, paying the prescribed filing fees and adhering. Please ensure the submitted document fully adheres to the court's procedural requirements. Doing so will ensure that your submission is accepted and your case is handled efficiently. 

2. Service of Notice: After filing, the court may issue notices to the respondents, informing them about the petition. Respondents have the opportunity to present their side of the case.

3. Hearing: The court has scheduled a hearing to listen to both parties involved, examine the evidence, and make appropriate interim orders or directions.

4. Judgement: The court delivers a verdict based on the presented arguments and applicable legal principles.  

G .How Writs work:

Writs serve specific purposes, such as releasing someone. One can be released from illegal custody through habeas corpus, or lower courts can be stopped from overstepping their jurisdiction through certiorari. Extraordinary Remedies: Writs are considered extraordinary remedies invoked when other legal remedies prove insufficient.

1. Protection of Rights: Writs primarily aim to safeguard fundamental rights and ensure justice prevails when legal principles are clearly violated. 

2. To Address : Writs allow courts to swiftly and summarily address urgent matters to prevent irreparable harm.

3. Enforcement: Writs are enforceable court orders, and failure to comply can lead to legal consequences, including contempt of court.

H . Differences in Writ Jurisdiction between the Supreme Court and High Court:

The Indian Constitution empowers the Supreme Court and High Courts to issue writs under articles, namely Article 32 and Article 226, respectively. Several distinctions in writ jurisdiction exist between these two courts. 

A. Purpose: The Supreme Court primarily issues writs to enforce fundamental rights, while High Courts have the authority to issue writs for various purposes beyond fundamental rights enforcement.

B. Power: The Supreme Court cannot refuse to exercise its power to issue a writ when necessary. On the other hand, High Courts possess the discretion to refuse the power to issue a writ in some instances.

The Supreme Court can issue writs against any person or government within the Indian territorial jurisdiction. In contrast, High Courts can only issue writs against persons or governments within their jurisdiction. High Courts can extend their writ jurisdiction beyond their territorial limits only when the cause of action arises within their jurisdiction.

I . Conclusion:

In summary, a writ is a powerful legal tool that ensures justice and protects the fundamental rights of citizens. It is served swiftly and impartially. It is important to note that legal procedures and requirements may vary, and it is highly advisable to seek guidance from legal professionals for specific cases based on the jurisdiction and nature of the matter. For comprehensive assistance with legal documentation and procedures, reputable legal service providers like MyAdvo in India can prove invaluable. They specialise in facilitating the filing of writ petitions and other legal matters while ensuring no essential details are overlooked.  

Frequently Asked Questions:

Q1. How do I file a writ petition in the High Court and the Supreme Court?

As discussed earlier, both civil or criminal writ petition can be filed in both the High Court and the Supreme Court under Article 226 and Article 32 of the Constitution respectively. The stepwise procedure of filing a petition at both the High Court and Supreme Court is as follows:

• Draft writ petition – Hire top civil lawyers to help you with the overall procedure of drafting and representation in court. You can find a writ petition format here.
• After drafting, you can file the petition at the filing counter in court
• On the date of hearing, the court will admit the petition and send a notice to the other party
• Then, the court will fix another date for the hearing. This will be in the presence of such other party if it chooses to appear
• Here the court will finally consider all the contents of the petition, thereby granting relief accordingly.

Q2. What are the 5 writs?

As discussed above, the 5 writs are:

Who can help you?

MyAdvo acts as the client's legal concierge providing technology solutions for lawyer discovery, price discovery and case updates. We at MyAdvo make you understand about the legal situation and equip you with all case requirements, Such that for any query regarding legal notice India, or any other legal matter, you are well-covered.

Our dedicated team strives to connect you with the best experts in legal matters from its wide base of 10,000+ lawyers. We help you to do everything that it takes to make better-informed decisions. All you have to do is send an mail to us at support@myadvo.in or call us at +91-7303499703