WRITS BY Rahul swarnkar

Introduction

 What is Writ

A writ is a formal written order issued by a Court. Any warrant, orders, directions, and so on, issued by the Supreme Court or the High court are called writs.

A writ petition can be filed in the High Court (Article 226) or the Supreme Court (Article 32) of India when any of your fundamental rights are violated. The jurisdiction with the High Court’s with regards to a writ petition is wider and extends to constitutional rights too.

 Writ of Certiorari

A type of writ, meant for rare use, by which an appellate court decides to review a case at its discretion. The word certiorari comes from Law Latin and means to be more fully informed. It is also the name given to certain appellate proceedings for re-examination of actions of a trial court, or inferior appeals court. A writ of certiorari orders a lower court to deliver its record in a case so that the higher court may review it. The U.S. Supreme Court uses certiorari to select most of the cases it hears. The writ of certiorari is a common law writ, which may be abrogated or controlled entirely by statute or court rules.

Petition for Writ of Certiorari - (informally called Cert Petition.) A document which a losing party files with the Supreme Court asking the Supreme Court to review the decision of a lower court. It includes a list of the parties, a statement of the facts of the case, the legal questions presented for review, and arguments as to why the Court should grant the writ.

Historical Background

The origins of a Writ of Certiorari are in British law. The goal of this judicial institution was to guarantee justice. A superior court could issue such a writ to review a decision made in a lower court. The issuance of such a brief was done on a discretionary basis, with no requirement on the part of the superior court to justify such an action. Currently, the US Supreme Court has a discretionary docket, which aside from a few exceptions, is unlike many of its counterparts overseas. Under modern-day jurisdiction, in most types of cases the Court hears only cases granted Certiorari. Consequently, almost all of the requests for review are denied.

According To Constitution of India

The supreme court, and High courts have power to issue writs in the nature of habeas corpus , quo warranto , mandamus , certiorari ,prohibition etc., under Arts. 32 and 226 respectively. These writs have been borrowed in India from England where they had a long chequered history of development and consequently have gathered a number of technicalities. Power to issue writs is primarily a provision made to make available the Right to Constitutional Remedies to every citizen. The right to constitutional remedies as we know is a guarantor of all other fundamental rights available to the people of India. In addition to the above, the constitution also provides for the parliament to confer on the supreme court power to issue writs , for the purpose other than those mentioned above. Similarly High courts in India are also empowered to issue writs for the enforcement of any of the rights conferred by Part III and for any other purpose.

Types of Writ Petitions

1. Habeas Corpus

The literal meaning of the term Habeas Corpus means, ‘you may have the body of’.

You can file this type of writ petition when a person is illegally detained. Meaning, if the court finds out that the person is illegally detained, then it can order for the release of that person.

For Example:

  • When one files writ petitions of Habeas Corpus in nature, then the court whether (s)he has been examined legally or illegally.

  • On conducting the examination, if the court finds that the person has been illegally detained, it can order for the release of the person.

The scope of habeas corpus writ petition has been widened by the Supreme Court.

Now you can also file it for the violation of fundamental rights of the prisoners (eg: Sunil Batra vs. Delhi Administration).

Thus, the explanation of writ petition meaning is as follows:

  • Court has the authority to ask questions regarding the causes of detention of the detained person.

  • The court can issue a summon for the production of the detained person in the court.

  • If it is concluded that the detention of the person is illegal, it can order for the release of the person.

One can file the writ petition of Habeas Corpus in any of the courts, be it High Court or the Supreme Court. Also, one can issue it under the following circumstances where:

  • The person has been detained but has not been produced before the magistrate within 24 hours of arrest.

  • The arrest has been made without any violation of law done by the person.

  • The arrest has been made for an unconstitutional law i.e. a law against the provisions of the Indian Constitution,

  • Detention is done with malafide intent, or with the intent to harm the persons.

Who can file a writ of Habeas Corpus?

Generally, 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 can their friend or relative.

2. Writ of Mandamus

Mandamus is a Latin word meaning ‘we command’. Mandamus is a court writ whereby the higher courts orders the lower court, tribunal, forum or any other public authority to do an act which otherwise also falls under the purview of their duty.

One issues the writ of mandamus when a public officer fails to perform his/her official duty or something which forms part of his/her official duty.

Mandamus writ petition means, which one cannot claim as a matter of right. But it is the discretionary power of the court to allow the writ of mandamus.

This means - if the court thinks that there may have been a failure in performing the duty by the lower court or public authority, and then the court may allow the writ of mandamus.

The court laid down the following requirements of the writ of mandamus:

  • There should be a legal right in existence,

  • The legal right should be enforceable by the court,

  • Enforcement of such a right must impose a responsibility of per on a person, public authority, corporation or government,

  • Such duty is of public nature.

Writ of mandamus can be issued against the following:

  • An individual or a private body,

  • If the duty which is the subject matter is discretionary and not mandatory,

  • It can be issued against the president or the governor of the state, 4. Against an acting chief justice,

5. To enforce a private contract.

Who can file the Writ of Mandamus?

Any person is it an individual or a private body can file for the court petition under the writ of mandamus, only if they have legal rights in the concerned matter to do so.

Under the writ of mandamus, you can file a petition even against the president of the country. If the court thinks that the public authority has failed to perform its duty, the court may issue 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.

Prohibition writ for the court is issued to stop or put a stay on the power exercised by the authority and is commonly known as ‘stay order’.

In India, a writ petition which is issued against the proceedings going on in lower courts and in such proceeding the lower court is exceeding its powers.

Once the writ of prohibition is allowed either by the Supreme Court or in High Court the proceedings of the lower court came to an end.

Difference between Mandamus and Prohibition

  • In 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

In the literal sense, the word certiorari means, ‘to be certified’.

One can issue the writ of certiorari by the Apex court for transfer of the matter to it or any superior authority for proper consideration.

You can issue the writ of certiorari against the inferior court or tribunal. (eg: a high court writ petition can be issued against lower district courts)

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.

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 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.

5. Writ of Quo-Warranto

Writ of quo warranto means a writ that you can issue to restrain a person from acting in the capacity of public office to which he/she does not have the entitlement.

Here, the term Quo-Warranto means, ‘by what authority’ or, ‘on whose authority is one holding a public office’.

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.

How do we file a writ petition?

Writ petition can be both Civil and Criminal Writ Petition, it can be filed in both the high court and supreme court under Article 226 and Article 32 of the Constitution respectively.

One should know the stages of a writ petition in order to file a petition in the high court or Supreme Court. The stepwise procedure is as follows:

  • Draft writ petition – for which you can hire a top lawyer. He/She will help you in drafting and representation in the court.

  • 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 a relief accordingly.

Related Cases

P.S. SADASHIV SWAMI vs. STATE OF TAMIL NADU

  • The Supreme Court explains the meaning of writ petition of Habeas Corpus very well.

MANI SHOBHREJ JAIN vs STATE OF HARYANA

  • The essential requirements of the Mandamus writ petition for the court were described by the Supreme Court.

GOVIND MENON vs. UOI

The Supreme Court 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.

STATE OF UP vs MOHAMMED NOOR

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.

HARI VISHNU KAMATH vs. AHMED ISHAQ

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.

UNIVERSITY OF MYSORE vs. GOVIND RAO

The Supreme Court 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.

CONCLUSION


At last I want to conclude by saying that, the writ of certiorari is one of the writs that are used in the criminal justice system. The writ of certiorari is used by the high court to order a lower court to turn paper for a court that had been decided earlier by the lower court for close review by the high court. The writ originated from the earlier English common law where it was used to bring an inferior court before the Kings Bench for a review of the ruling that had been made on the case.

REFERENCES

https://www.britannica.com/topic/certiorari

https://indiankanoon.org/search/?formInput=writ%20of%20certiorari

http://www.legalserviceindia.com/legal/article-68-types-of-writs-in-indianconstitution.html

https://thelawdictionary.org/certiorari/

http://www.yourarticlelibrary.com/law/4-important-writs-of-indiaexplained/24873

Book:- Constitution of India By P.M. Bakshi

Bare Act:- Constitution of India By Universal

31 views

Subscribe to Our Newsletter

  • LinkedIn Social Icon
  • Instagram
  • Facebook Social Icon
  • YouTube