A writ petition is a direction by the High Court to the lower courts and tribunals directing them to stop doing an activity. A Writ can be filed in the High Court under Article 226 of the Indian Constitution and Article 32 of the Constitution in the Supreme Court. A Writ petition is an order passed by the court if there is a violation of Fundamental Rights by any Government official or authority or body. A Writ petition can be filed for both civil and criminal case.
Kinds of writ petitions:
There are 5 kinds of Writ Petitions, Habeas Corpus, Mandamus,
Certiorari, Quo Warranto, and Prohibition.
Habeas Corpus:
A Writ of Habeas Corpus is filed in the High Court in cases
where a person is illegally detained by a person or an authority. In such cases
the court passes the Writ of Habeas Corpus and directs the official to present
the detained person before the court, the court directs the official to provide
reasonable grounds for detaining such person and if the authority fails to
provide any reasonable grounds then the detained person will be immediately
released by the Court.
In Sunil Batra v. Delhi Administration (1980 AIR 1579) case,
an application was made to the Supreme Court through a letter written by a
co-convict on the maltreatment of the prisoners. This letter was taken up by
the Supreme Court and it issued the writ of habeas corpus stating that this
writ can not only be used against the illegal arrest of the prisoner but also
for his protection against any maltreatment or inhuman behavior by the
detaining authorities. [i]
In the case of “Rajakkannu V. State of Tamil Nadu (also known
as the very famous Jai Bhim case), the court held that after the investigation
by CBCID officials appointed by the Hon’ble High Court, the court held that it
is a case of custodial death. A compensation of Rs. 5,00,00/- citing Nilabati
Behera vs. State of Orissa [AIR 1993 SC 960], the Court should grant the
relief, and defense of sovereign immunity is not available to the State Agency.
As such, the Hon’ble Court directed the Government to provide a compensation of
Rs. 1,10,000/- of which, Rs. 10,000/- was to be given in the form of cash and
the remaining Rs. 1,00,000/- to be invested in a safe scheme that delivers a
monthly income of not less than Rs. 1,000/-. Further investments were also made
in the name of the minor daughter of the Petitioner as well as to other victims
who had suffered an assault by the Respondent police. In finality, a cost of
Rs. 5,000/- was awarded to the counsel for the Petitioner. [ii]
Mandamus:
Mandamus in Latin means “We Command”; it is a direction by
the court to a public authority to do a work that it has failed to do. It is a
direction by the Court against a public officer, a public corporation, a tribunal,
a lower court, or the government. It cannot be issued against a private body,
individual, the president, or the governor of the state and working chief
justice. It cannot be issued in the following circumstances.
·
The duty in question is discretionary and not
mandatory.
·
For the performance of a non-statutory function.
·
Performance of the duty involves rights of a purely
private nature.
·
Where such direction involves a violation of any
law.
·
Where there is any other remedy available under the
law. [iii]
In the landmark case of SP Gupta v. Union of India (1981),
the judges ruled that the president of India cannot have a writ issued against
him that directs him to fix the number of judges of the High Court and fill
vacancies. The courts cannot issue a writ of Mandamus against persons like the
president and governors. [iv]
Certiorari
Certiorari is a Latin term meaning to ‘Certify’. If a higher
court suspects that there is an order been passed by the lower court or
tribunal beyond its powers or jurisdiction then that case by passing a writ of
certiorari it can either transfer the case to itself or quash the order passed
by the lower court or the tribunal. A writ of certiorari is passed by the High
court or Supreme court to the lower court in certain circumstances.
·
When a lower court passes an order which is not under
its jurisdiction
·
• When a subordinate court acts or issues orders in
cases that are not within its jurisdiction or cross its jurisdictional
boundaries in ways it is not authorised to.
·
When a subordinate court actions in flagrant violation
of the law or procedural rules, or
·
When a subordinate court acts in breach of natural
justice principles and there is no procedure in place.
3-Judge Bench in the case of Radhey Shyam v. Chhabi Nath, (2015) 5 SCC 423 extensively
referring to the legal position on the scope of the writ of certiorari concluded
that orders of the civil court stand on a different footing from the orders of
authorities or tribunals or courts other than judicial/civil courts. [v]
Quo Warranto:
Quo Warranto is a Latin term meaning ‘by what warrant’, the
object of this writ is to prevent a person from holding an office he is not
entitled to. The court can call upon a person who is holding a public office on
what authority he is holding that office. It cannot be issued to a person
holding a private office. This writ can be issued only under certain
conditions,
·
The office was created under the provisions of the
Indian constitution but is under a private person who is not qualified to hold
such office.
·
If any public office is wrongfully or illegally been
undertaken by a private person
·
The nature of work done by the office must be public
In the case, Purushottam Lal vs State of Rajasthan Quo
Warranto was filed against the CM of Rajasthan stating that the CM was not
elected validly to the house. The court rejects the petition stating that if
the CM holds office without authority, then it is a breach of the
constitutional provision. The office of the Chief Minister is created by the
constitution, so a member of the assembly is not a purpose of the office.
Raising the questions on the Election of Chief Minister in this writ is not a
proper form it must be raised through an election petition. [vi]
Prohibition:
The last Writ which is explained in the Indian Constitution
is the Writ of Prohibition, it is issued by a superior, but it is not issued
often. It is an extraordinary remedy issued to a lower court or a tribunal to
stop them from deciding on a case because they do not have the
jurisdiction.
If a District Court is hearing a case that is already decided
by the High Court in such cases the judgment will be termed as invalid as any
lower court cannot hear a case that is already passed by the Higher Court. Such
judgments will be termed invalid.
In the case of S. Govind Menon v. Union of India (1967), a
writ of prohibition can be issued in both circumstances of excess jurisdiction
and absence of jurisdiction. Writ of prohibition was issued by a higher court,
namely the Kerala High Court, to a lower court to take over jurisdiction that
was not initially vested, or in other words, to compel lower courts to retain
their jurisdictional
limitations. The writ can be issued when there is an excess of jurisdiction
as well as when there is an absence of jurisdiction. [vii]
Conclusion:
A Writ petition can be filed for a civil or a criminal case.
A writ petition is an order by the High Court to the lower court directing them
to stop doing an activity. A Writ petition is an order passed by the court if
there is a violation of Fundamental Rights by any Government official or
authority or body. A Writ can be filed in the High Court under Article 226 of
the Indian Constitution and Article 32 of the Constitution in the Supreme
Court.
[i] https://cleartax.in/s/writs#:~:text=Therefore%2C%20a%20writ%20can%20be,to%20issue%20a%20specific%20writ
[ii] https://www.sekarreporter.com/the-jai-bheem-case-rajakannu-vs-state-of-tamil-nadu-h-c-p-no-711-of-1993-facts-of-the-case-the-habeas-corpus-petition-had-been-filed-by-r-parvathy-the-wife-of-rajakannu-they-were-daily-w/
[iii] https://cleartax.in/s/writs#:~:text=Therefore%2C%20a%20writ%20can%20be,to%20issue%20a%20specific%20writ.
[iv] https://blog.ipleaders.in/writ-of-mandamus-and-its-usage-in-light-of-the-case-of-john-paily-v-the-state-of-kerala/#:~:text=In%20the%20landmark%20case%20of,like%20the%20president%20and%20governors
[v] https://www.scconline.com/blog/post/tag/writ-of-certiorari/
[vi] https://www.legalserviceindia.com/legal/article-541-law-of-writs-in-indian-constitution.html
[vii] https://blog.ipleaders.in/all-you-need-to-know-about-the-writ-of-prohibition/
Comments
Post a Comment