What is Writ and How to File Writ Petitions?

Introduction

The Constitution is not just about the structure of the different branches of government and their relationships; it also highlights a list of rights. During India's freedom struggle, leaders recognized the importance of rights. In 1928, the Motilal Nehru Committee even called for a "Bill of Rights." So, when India gained independence and the Constitution was being drafted, there was a unanimous agreement on the inclusion and protection of rights within it.

Part III of the Constitution includes certain protected rights known as Fundamental Rights. These rights are considered fundamental because they are crucial for individuals to achieve their full intellectual, moral, and spiritual potential. Fundamental Rights serve as a reminder to the government that it must respect certain liberties guaranteed to the people by the Constitution.

List of Fundamental Rights

• 1. Right to Equality (Articles 14-18)
• 2. Right to Freedom (Articles 19-22)
• 3. Right Against Exploitation (Articles 23-24)
• 4. Right to Freedom of Religion (Articles 25-28)
• 5. Cultural and Educational Rights (Articles 29-30)
• 6. Right to Constitutional Remedies (Articles 32-35)

Article 32 and Article 226

Simply listing fundamental rights isn't enough; they need an effective system for enforcement. A right becomes meaningful when there's a remedy for violations. That's why the framers of our Constitution included Article 32, which not only provides for the enforcement of these rights but also makes it a fundamental right itself. Article 32 guarantees the right to approach the Supreme Court and empowers the Court to issue orders or writs to enforce these rights.

Dr. B.R. Ambedkar called Article 32 the heart and soul of the Indian Constitution. He even stated, "If I were to name the most important Article in this Constitution—an Article without which the Constitution would be null—I could not refer to any other Article except this one."

Article 226 states that, regardless of anything in Article 32, every High Court has the power to issue directions, orders, or writs to any person or authority, including the government, in appropriate cases. These can be issued (a) for the enforcement of fundamental rights provided by Part III, and (b) for any other purpose.

The writs mentioned in Article 226 are known as prerogative writs, as they originated from the power of superintendence over officers and subordinate courts.

Article 227 establishes that every High Court has superintendence over all courts and tribunals within its jurisdiction (except for those related to armed forces).

What is a Writ?

A writ is a formal written order commanding a specific action. Any Indian citizen can file a writ petition in the Supreme Court under Article 32 or in the State High Court under Article 226 if their fundamental rights are affected or violated by the actions of a state or government authority.

Types of Writ Petitions

• 1. Habeas Corpus
• 2. Mandamus
• 3. Prohibition
• 4. Certiorari
• 5. Quo Warranto

Habeas Corpus

The term "habeas corpus" literally means "you may have the body." A person can file this petition if they believe they have been unlawfully detained. If the court finds the detention illegal, they can order the person's release. A writ of Habeas Corpus can be filed in the following situations:

• When a person is in custody but not brought before a court within 24 hours of arrest.
• When the person is innocent and hasn't broken any law.
• When the arrest was not made following legal procedures.
• When the detention was carried out with bad intentions or to harm the individual.

Typically, the person who has been illegally detained files a habeas corpus petition. However, if they are unable to do so, a family member, relative, or friend can file the petition on their behalf.

Cases of Habeas Corpus Petition

Sunil Batra v. Delhi Administration: This case expanded the scope of the habeas corpus petition. It was determined that the petition can be used not only to release a person from illegal detention but also to protect prisoners from inhumane and barbaric treatment. Justice Krishna Iyer stated that the habeas corpus writ has a dynamic role as a defender of liberty, even within prisons. He emphasized that whenever a prisoner's rights under the Constitution or other laws are violated, the court's writ power should intervene to protect those rights.

Veena Sethi v. State of Bihar: In this case, the court received a letter stating that some prisoners, who were found insane at the time of trial but later deemed sane, had been detained for 20 to 30 years. The court ordered their immediate release.

Kanu Sanyal v. District Magistrate, Darjeeling: In this case, the Supreme Court ruled that when dealing with a writ of habeas corpus, it is not necessary to physically produce the person alleged to be unlawfully detained. Instead, the court should focus on the legality of the detention by examining the facts and circumstances of the case. The case emphasized that habeas corpus is a procedural writ, not a substantive one.

Justice Bhagwati remarked, "Why should we restrict ourselves by following a practice that originated in England 300 years ago due to historical circumstances that are no longer valid, even in England, and have no relevance in our country?"

AK Roy v. Union of India and others: Commonly known as the National Security Act (NSA) case, the Supreme Court, by a 4:1 majority, upheld the constitutional validity of the NSA and the preceding Ordinance. The case examined the constitutionality of the Preventive Detention Act. The court found that the Act was neither vague nor arbitrary in its provisions, which allowed for the detention of individuals on grounds such as acting in a manner prejudicial to the "defense of India," or the security of India and the State. The court issued several directives to protect the rights of detainees:

• The detainee's family or a friend should be informed immediately after the detention.
• The detainee should be held in a location where they usually reside, unless exceptional circumstances require otherwise.
• Detainees should have access to books, writing materials, food, etc.
• They should be kept separate from convicted criminals.
• No harsh treatment should be allowed.

Additional District Magistrate of Jabalpur v. Shiv Kant Shukla

This case, widely known as the Habeas Corpus case, was heard by the Supreme Court on April 28, 1976. The bench included Chief Justice A.N. Ray and Justices P.N. Bhagwati, Y.V. Chandrachud, Khanna, and M.H. Beg.

On June 27, 1975, the President issued an order under Article 359(1), stating that:

"No person shall have the right to approach any court for the enforcement of the rights conferred by Article 14, Article 21, and Article 22 of the Constitution. All proceedings in any court for the enforcement of these rights shall be suspended for the duration of the emergency declared under Article 352 on December 3 and June 25, as long as both remain in force."

The Supreme Court, by a 4:1 majority, held that due to the President's order dated June 27, 1975, no one had the right to file a writ petition under Article 32 or Article 226 or challenge the legality of any detention order. The Court stated that even if the detention order was not in compliance with the law or was issued with malice or based on irrelevant considerations, it could not be challenged.

The 44th Amendment to the Constitution later amended Article 359, ensuring that the enforcement of the right to life and liberty under Article 21 cannot be suspended by a Presidential order. As a result, ADM Jabalpur v. Shiv Kant Shukla is no longer considered valid law.

The ADM Jabalpur decision was overruled twice: first in I.R. Coelho v. State of Tamil Nadu and later in the landmark judgment of Justice K.S. Puttaswamy (Retd) and another vs. Union of India and others on August 24, 2017, regarding the right to privacy.

Justice D.Y. Chandrachud remarked, "The judgments rendered by all the four judges in the majority in the ADM Jabalpur case are seriously flawed. Life and personal liberty are inalienable to human existence."

Mandamus

The term "Mandamus" means "order." It is a writ issued by a Superior Court directing or commanding a public official or authority to perform or refrain from performing a specific duty that falls within their official responsibilities.

When Can It Be Issued and Granted?

A writ of Mandamus can be issued when a statutory duty is imposed on a public officer, and they fail to perform that duty. It is not a matter of right but rather a matter of grace. The main function of this writ is to compel the performance of public duties and ensure that officials act within their jurisdiction.

Mandamus can only be granted if there is a right to compel the performance of a duty imposed by law. This duty must be public, not private.

In Raman and Raman v. State of Madras and State of Assam v. State of Assam, it was held that "Mandamus will not issue to enforce departmental manuals or instructions that do not have statutory force and do not create any legal rights in favor of the petitioner."

In Binny Limited v. Sadasivan, it was stated, "A writ of mandamus is primarily a public law remedy, not generally available for private wrongs. It enforces public rights or compels public statutory authorities to perform their duties and act within their legal bounds. It can also ensure justice when there is an abuse of power or a refusal to perform duties."

Requirements for the Writ Petition:

• There must be an existing legal right.
• The legal right should be enforceable by law.
• The right must impose a responsibility.
• The duty should be of a public nature.

When the Writ of Mandamus Will Not Be Granted:

• When the Duty Is Discretionary: In State of M.P. v. Mandawara, the Supreme Court held that Mandamus could not be issued to compel the government to exercise a discretionary power, such as granting a dearness allowance. Similarly, in Swaraj Abhiyan v. UOI, the Supreme Court ruled that Mandamus could not compel the State Government to implement the National Food Security Act, 2013.
• Against Private Individuals or Organizations: In Barada Kanta v. State of West Bengal, it was held that Mandamus does not lie against private individuals or organizations.
• Contractual Obligations: A writ of Mandamus cannot be granted to enforce an obligation arising from a contract.

Prohibition

A writ of Prohibition, commonly known as a "stay order," is issued primarily to prevent a lower court or tribunal from acting beyond its jurisdiction or in violation of the rules of natural justice. It is an order from a superior court prohibiting a lower court from overstepping its legal boundaries.

A writ of Prohibition can be filed when there is either an excess or lack of jurisdiction, as seen in the case of S. Govind Menon v. Union of India.

This writ serves as a mechanism for a superior court to exercise its authority over a lower court, preventing the latter from exceeding its legal powers.

When It Can Be Issued:

A writ of Prohibition can only be issued if the proceedings are still ongoing and have not yet resulted in a decision. If the court where the matter is pending has ceased to exist, a writ of Prohibition cannot be issued because there are no ongoing proceedings. However, if the case is still being heard, the writ can be issued at any stage before the lower court makes a final decision.

Certiorari

Certiorari means "to be certified." It is a petition filed in a Superior Court requesting an order to transfer a case from a lower court to a higher authority. This writ is typically issued when a lower court or authority has violated laws or principles of natural justice in making a decision.

The writ of certiorari can be used before a trial to prevent an overreach or abuse of jurisdiction and to transfer the case to a higher court for trial. It can also be used after a trial to quash an order made by the court.

Conditions for Filing Certiorari

• There must be a court, tribunal, or officer with the legal authority to decide a question and a duty to act judicially.
• The authority must have violated the prescribed procedure, acted in excess or absence of judicial authority, or breached the principles of natural justice.

Scope of Certiorari

The scope of this writ was defined by the Supreme Court in Province of Bombay v. Khushaldas S. Advani & Ors, The Court held that whenever a legal body with authority to determine questions affecting individuals' rights acts beyond its legal power, a writ of certiorari can be issued. However, it cannot be used to remove or cancel mere ministerial acts or executive administrative actions.

When is Certiorari Available?

In the case of Urya Dev Rai v. Ram Chander Rai, it was determined that certiorari cannot be used to correct simple errors of fact or law. It is only available in the following situations:

• When there is a lack of jurisdiction or an excess of jurisdiction.
• When there is an obvious and apparent error on the face of the record.
• When there is a violation of procedure or disregard for the principles of natural justice.

Quo Warranto

The term 'quo warranto' means 'by what authority.' This writ requires a person holding a public office to show the court under what authority they occupy that position. The purpose is to prevent someone from unlawfully holding a public office.

If the investigation finds that the person is not legally entitled to the office, the court can issue a writ of quo warranto, preventing them from continuing in the role and possibly declaring the office vacant.

In University of Mysore v. Govind Rao, the Supreme Court outlined the conditions for filing this writ:

• The contested position must be a public post.
• There must be a violation of law in the appointment or holding of the post.
• The office must be substantive, not merely a function or job at the discretion of another.

Who Can Apply?

The court has stated that anyone can file a writ of 'quo warranto' if the following conditions are met:

• The office in question must be a public office.
• The post should be held by someone without legal authority.

However, the issuance of a quo warranto writ is at the court's discretion, based on the facts and circumstances of each case.

Can a Writ of Quo Warranto Be Issued Against a Private Authority?

In Jamalpur Arya Samaj Sabha v. Dr. D. Ram, the High Court refused to issue a writ of quo warranto against members of the working committee of the Bihar Arya Samaj Sabha, a private association.

In G.D. Karkare v. Shevde, a private individual challenged the appointment of the Advocate-General of M.P. The court ruled that it's not necessary for the petitioner of a quo warranto to have a legal interest in the post; anyone from the public can challenge someone's right to hold a public office.

In Niranjan Kumar Goenka v. University of Bihar and Others, the Patna High Court held that a writ of quo warranto cannot be issued against a person not holding a public office.

How to File Writ Petitions

Writ petitions can be filed in the High Court under Article 226 and in the Supreme Court under Article 32 of the Indian Constitution.

You can check the format for filing a writ petition here and review the required documents. Writ petitions can also be filed online at this link.

To draft a writ petition, it's advisable to hire a civil lawyer who can assist with drafting the petition and representing you in court.

For petitions under Article 32 of the Constitution, they must be in writing and will be heard by a Division Bench of at least five Judges.

No court fees are required for petitions for habeas corpus or other petitions under Article 32 related to criminal proceedings, or in proceedings connected with such petitions.