What is Writ and How to File Writ Petitions? | Important Acts and Laws for Judiciary Exams PDF Download

Introduction

The Constitution emphasizes not only the structure of government organs and their relationships but also enshrines a list of rights. During the freedom struggle, leaders recognized the significance of rights. The Motilal Nehru committee demanded a "Bill of Rights" as early as 1928. Consequently, upon India's independence, there was unanimous agreement on including and safeguarding rights in the constitution.

Part III of the constitution contains Fundamental Rights, crucial for an individual's intellectual, moral, and spiritual development. These rights serve as a reminder to the government to respect certain liberties guaranteed by the constitution.

List of Fundamental Rights:

• Right to equality (Article 14-18)
• Right to freedom (Article 19-22)
• Right against exploitation (Article 23-24)
• Right to freedom of religion (Article 25-28)
• Cultural and educational rights (Article 29-30)
• Right to constitutional remedies (Article 32-35)

Mere enumeration of fundamental rights is insufficient without an effective enforcement mechanism. Article 32 ensures the enforcement of these rights, making it a fundamental right itself. Dr. BR Ambedkar regarded Article 32 as the heart of the Indian Constitution, essential for upholding rights.

Article 226 empowers High Courts to issue directions, orders, or writs for enforcing fundamental rights and other purposes. The writs under Article 226, known as prerogative writs, provide oversight over officers and subordinate courts.

Article 227 grants High Courts superintendence over all courts and tribunals within their jurisdiction, excluding those related to the armed forces.

Difference between Article 32 and Article 226:

• Purpose: The Supreme Court can issue writs to enforce fundamental rights, while High Courts can issue them for other purposes as well.
• Territorial jurisdiction: The Supreme Court can issue writs across India, while High Courts can do so within their jurisdiction.
• Power: The Supreme Court must execute its power in issuing a writ, whereas High Courts can refuse.

Understanding Writ Petitions

• Definition of a Writ Petition: A writ petition is a formal written order that mandates the execution of a specific function or command.
• Legal Recourse for Citizens: Any Indian citizen has the right to file a writ petition with the Supreme Court under Article 32 or with a State High Court under Article 226. This recourse is available when their fundamental rights are infringed upon by actions of state or government authorities.
• Protecting Fundamental Rights: Writ petitions serve as a crucial mechanism to safeguard the fundamental rights of individuals against government actions that may violate these rights.
• Examples of Writ Petitions:
  • For instance, if a citizen believes that their right to free speech is being curtailed by a government body, they can file a writ petition to seek redress.
  • Similarly, if an individual's right to privacy is being compromised by a state authority, a writ petition can be submitted to address this violation.

Types of Writ Petitions

• Habeas Corpus
• Mandamus
• Prohibition
• Certiorari
• Quo Warranto

Habeas Corpus

• Allows a person to challenge illegal detention
• Ensures release if detention found unlawful
• Example: Sunil Batra v. Delhi Administration - Expanded scope to protect prisoners' rights

Mandamus

• Directs public officials to perform their duties
• Compels action in cases of statutory obligations
• Example: Raman and Raman v. State of Madras - Mandamus not granted for non-statutory duties

Prohibition

• Prevents lower courts from overstepping jurisdiction
• Ensures adherence to natural justice
• Example: S. Govind Menon v. Union of India - Addresses jurisdictional concerns

Certiorari

• Transfers cases from lower courts to higher ones
• Corrects errors of law or jurisdictional excess
• Example: Province of Bombay v. Khushaldas S. Advani - Defines scope of the writ

Quo Warranto

• Challenges the authority of office holders
• Vacates office if held unlawfully
• Example: University of Mysore v. Govind Rao - Sets conditions for filing

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.
• To access the format for a writ petition, visit the link provided to understand the necessary documents required for filing the petition. Online filing is also an option through the provided portal.
• It is advisable to engage a civil lawyer to assist with the drafting process and representation in court when preparing a writ petition.
• Every petition under Article 32 of the Constitution must be in writing and will be reviewed by a Division Court consisting of no fewer than five Judges.
• There is no requirement to pay court fees for petitions such as habeas corpus or others under Article 32 of the Constitution that stem from criminal proceedings or related cases.