WHAT IS A WRIT?
A document or order drafted by judges, courts, or other entities that have administrative or judicial jurisdiction and directs a person or an entity any form of action from a court is generally known as a writ. These documents are often issued after a judgment is made, giving those involved in a suit the ability to carry out the judgment.
ORIGIN OF WRITS IN INDIA
The genesis of writs may be traced back to the English judicial system when English folk courts-moots gave way to common law courts. The law of writs derives from orders issued by the King’s Bench in England. Writs were issued in response to a petition submitted to the king in council and were treated as royal orders. Writs were written orders issued in the name of the king that served as the foundation for ensuing proceedings.
Nonetheless, writs assumed diverse forms and titles in different sectors. The writs were granted by the crown and for the benefit of the crown, but as time passed, they were available to regular citizens as well. However, there was a regulated fee for it, and the lodging of these writs was known as Purchase of a writ.
The history of writs in India may be traced back to the Regulating Act of 1773, which created the Supreme Court in Calcutta. The charter also constituted several High Courts, which had the same authority to issue writs as the Supreme Court. Other courts that were founded afterwards did not have this authority. These courts’ writ authority was confined to their original civil jurisdiction, which they had under Section 45 of the Specific Relief Act of 1877.
INTRODUCTION TO WRITS
Part III of the Indian Constitution contains fundamental rights such as the right to equality, the right to life and liberty, and so on. Simply establishing Fundamental Rights is insufficient. It is critical that these Fundamental Rights are also preserved and implemented.
To safeguard fundamental rights Articles 32 and 226 of the Indian Constitution grant the right to petition the Supreme Court or the High Court to anybody whose Fundamental Right has been infringed. On the other hand, the two articles grant the highest courts in the country the authority to issue writs to enforce Fundamental Rights.
The Indian Constitution’s hallmark theme is “Social and Economic Justice.” It protects basic rights that cannot be waived under normal circumstances. To defend these rights, the Constitution provides for writ remedies that are enforced by the High Court and the Supreme Court. The award of compensation as part of the relief that can be awarded to the aggrieved individual is an essential aspect of these remedies.
CONSTITUTIONAL PROVISIONS
Articles 32 and 226 of the Indian constitution provide for the enforcement of basic rights as well as judicial review of administrative acts using writs. A person has a fundamental right to raise his grievance or dispute against any administrative action to the attention of the court. The most crucial components of writ jurisdictions are the protection of basic rights and the provision of natural justice.
Only the Supreme Court and the High Court have Writ jurisdiction. Article 32 grants the Supreme Court this authority, while Article 226 grants it to the lower courts.
Article 32(1) protects the right of a person to petition the Supreme Court for the enforcement of basic rights protected by Part III of the Constitution.
Article 32(2) authorizes the Supreme Court to issue directives, orders, or writs in the form of Habeas Corpus, Certiorari, Prohibition, Mandamus, and Quo-warranto to enforce basic rights.
Article 226 enables state high courts to issue the instructions, orders, or writs for the enforcement of basic rights and for “any other reason.” i.e., high courts have the authority to issue writs not just to enforce basic rights but also to enforce a ‘non-fundamental right.’
As a result, the constitution confers discretionary powers to the High Court and the Supreme Court. No one can enforce its assigned rights if such remedies are not provided. As a result, wherever there is a right, there must be a remedy. As a result, it should fulfil the maxim ‘ubi jus ibi remedium.’
WHAT ARE THE TYPES OF WRITS?
1. Habeas corpus
This writ is known as the writ of right, which is granted ex debito justitae. The writ of habeas corpus is used to obtain the release of someone who has been held illegally or without legal grounds. The worth of the writ is an instant decision of a person's right to liberty.
This writ of Habeas Corpus may be invoked by the prisoner, or the person imprisoned himself, or on his behalf by his family, to challenge the legality of his imprisonment or the restriction of his personal liberty.
Other than against the state, Habeas Corpus may be given against illegal private custody or detention. This writ can also be used to obtain custody of a newborn, and the court can decide and award custody of infant proper person.[1]
2. Mandamus
The writ of mandamus is given to compel all types of authority to execute their public obligations. The court has the ability to order a public official to execute statutory duties. The goal is to prevent disruption caused by a failure of justice, in which justice is not provided despite being sought. Mandamus is a broad remedy that should be widely available to address injustice wherever it occurs; technicalities should not stand in the way of awarding this relief.
By common law, the courts not only issue mandamus for the execution of a public obligation, but they have also recognized promissory estoppel and legitimate expectations as causes of action for evoking the mandamus authority.
The court cannot issue a writ of mandamus to overturn a decision made by the state using its discretionary powers, but it can overturn the order if the discretion has been mistreated or improperly exercised, or if the decision is based solely on political considerations without any material consideration.
3. Certiorari
The writ of certiorari is given to overturn a decision that has previously been made by a lower Tribunal. It is possible that, in the action before a lower court, the High Court ordered both prohibitions to prevent the body from progressing and certiorari to nullify what it has already done.
The jurisdiction to grant certiorari is a supervisory one, and the High Court that exercises it does not have the authority to operate as an appellate court.
However, it is issued in cases where a judicial or quasi-judicial entity has not behaved judicially. Because the courts are required to operate in a specific manner, the court can issue this writ even if the list is between private individuals.
4. Quo- Warranto
This writ requires the bearer of a public office to demonstrate to the court under what authority he holds that position. Its opinions on preventing someone from operating in a public capacity to which he is not entitled.
A person may be removed from an office to which he is not eligible by the Court. It is issued against the office usurper, and the appointing authority is not a party to it. The Court can therefore control election or appointment to the office in violation of the law and safeguard a person from being denied a public post to which he is entitled.
The writ is only valid in the case of a large public office. In a Quo Warranto petition, the purpose for nominating an officer in making the appointment in issue is immaterial.
This writ cannot be issued in opposition to the establishment of a ministerial council, chief ministers, or governors. It also cannot call into doubt the authority of private entities to hold a private character office.
5. Prohibition
Prohibition writ is also known as preventative writ. Prohibition can be issued before the procedures are concluded. It is given to prevent a lower court from enforcing an invalid statute. The issue of a writ of prohibition is inappropriate in the absence of a compelling and compelling justification. It was pointed out that, under the CPC, the civil court has sufficient competence to decide its own jurisdiction, and that the High Court erred in meddling by Prohibition and directing the civil court to resolve preliminary matters like as the suit’s maintainability and applicability/estoppels.
GROUNDS AND SCOPE ON WHICH A WRIT PETITION CAN BE FILED
1. Habeas Corpus
As it safeguards the right to life and liberty, the court has substantially broadened the scope of this writ. In Sheela Bharse vs. State of Maharashtra[2], the court broadened the scope of this writ by ruling that the inmate does not have to be the petitioner. An interested person with a link to the case may also participate.
The court decided in Kanu Sanyal vs. District Magistrate[3] that it is not necessary to present the detainee before the court.
2. Prohibition
The Supreme Court stated in the case of Calcutta Discount Co. Ltd. vs. ITO[4] that when a subordinate court or tribunal is proven clearly to have operated beyond their jurisdiction, the court would issue a writ of prohibition irrespective of whether an alternative remedy exists or not.
3. Mandamus
The court, similar to the other prerogative writs, has assumed the duty of defining the criteria for the application of the writ of Mandamus.
The Supreme Court decided in the case of State of West Bengal vs. Nuruddin[5] that the writ of mandamus is a personal action if the respondent has not performed the obligation imposed by law. The applicant has the right to fulfil the obligation.
The court stated in Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust and Ors. vs. V. R. R Udani and Ors.[6] that it is not required for the obligation to be imposed by legislation; mandamus may apply even if the duty is imposed by common law or custom. Mandamus has a broad scope, and it must be accessible when an injustice occurs. It should not be overburdened with complexities.
4. Quo Warranto
The court decided in Anand Bihari vs. Ram Sahay[7] that the office in question must inevitably be public.
The court decided in G. Venkateshwara Rao vs. Government of Andhra Pradesh[8] that a private individual may apply for a writ of Quo Warranto. This individual does not have to be directly impacted or engaged in the matter.
5. Certiorari
The scope of the writ[9] of certiorari has been given in the case of Hari Vishnu Kamath vs. Ahmad Ishaque[10] as follows:
• When there is a jurisdictional error.
• When the court does not allow enough time for both parties to be heard.
• When the court violates natural justice principles.
• Because this writ is of a supervisory nature, the High Court cannot examine the conclusions of the subordinate courts.
WHO CAN FILE THE WRIT PETITION?
The general premise is that the individual whose fundamental rights have been violated has the locus standi to seek the Supreme Court or High Court for rights enforcement. In common law, the locus standi to approach the court has been eased and extended to a public-spirited third party through Public Interest Litigation (PIL).
Any individual whose fundamental rights, as defined in Part III of the Indian Constitution, have been infringed may file a writ petition. It is a safeguard against violations of fundamental rights.
A prisoner, as well as his or her friends or family, can make an application for the writ of Habeas Corpus. It is seen as a power capable of compelling the court to address the officer who held the prisoner. If the court determines that the officer is operating outside of his authority, the court may order the prisoner's release.
A person may file a writ petition in the Supreme Court under Article 32 for a violation of his or her basic rights.
When a person's basic rights are violated, he or she has the right under Article 226 to file a writ petition before the High Courts. It should be highlighted that the authority against whom the writ petition is filed must be physically present in India; else, the petition is meaningless.
When a person's fundamental rights are violated, he can file a complaint with any of the courts. It is not required to go to the High Court first, followed by the Supreme Court.
In the case of Rajmata Vijai Raje Scindia vs. State of Uttar Pradesh[11], it was determined that while there is no set time restriction in India for filing a writ petition, it is anticipated that it be submitted without delay. In the event of a delay, the court requests good reason for the delay. As a result, a reasonable delay is warranted; otherwise, the petition may be rejected.
HOW CAN A WRIT PETITON BE FILED?
A specified procedure must be followed to submit a writ petition in any of the courts:
To begin, the offended party must contact a specific organization with relevant papers such as identity evidence, residency proof, photographs, and so on.
The petition is then written with the assistance of a lawyer. The document comprises the offended party's name and address, as well as the events that led to the infringement of his/her fundamental rights.
Following this, the drafted petition is sent to the court.
The court will then schedule a hearing date, and on that date, it will accept the petition and send a notice to the other party. Following that, a date is set to ensure that both parties are present.
Finally, after hearing both sides, the court renders a decision and provides relief.
Filing of Habeas corpus in the Court
To file a writ of habeas corpus in the Court, the following documents must be submitted in addition to the petition that the lawyer has already prepared:
A writ of habeas corpus petition must be accompanied by an affidavit signed by the person being held in custody, stating that the petition is being filed on his behalf and explaining the nature and circumstances of the imprisonment.
If the Court finds that there is a prima facie case for granting the petition, a rule nisi should be issued ordering the person or people seeking the order to appear on a day to be stated therein to show cause why such order should not be granted, and to exhibit in Court the body of the petition.
If the person imprisoned is unable to make the affidavit due to the constraint, the petition must be accompanied by an affidavit sworn by another person informed about the facts explaining why the person confined is unable to make the affidavit.
Before petitioning the Supreme Court, the petitioner must state if he or she has sought equivalent relief from the High Court in question, and if so, the outcome.
If no cause is offered, or if cause is presented but denied, the Supreme Court shall issue an order freeing the person or individuals wrongly imprisoned on the return day of such finding, or any other day on which the hearing thereof may be extended. The ruling will be overturned if cause is proved and accepted. The Court's release order shall be sufficient warrant for the release of any jailer, public official, or other restricted person.
If there are any concerns, the Court may issue whatever order it deems reasonable in the case of any regulation.
Filing of Mandamus
Mandamus is a court writ wherein the higher court orders the lower court, tribunal, forum or any other type of public authority to perform a particular act which falls in the area of their expertise. The following considerations must be kept in mind when filing the aforementioned writ in Court:
A petition for a direction, order, or writ must include the petitioner's name and description, the essence of the fundamental right infringed, the relief sought, and the grounds for seeking it, as well as an affidavit verifying the facts relied on, and at least three copies of the petition.
When petitioning the Supreme Court for relief, the petition must also explain whether the petitioner sought comparable relief from the High Court in issue, and if so, the decision.
The Court will receive the petition for a preliminary hearing and directions concerning the respondent's notice. After hearing, the Court shall dismiss the petition if it is satisfied that no fundamental right guaranteed by the Constitution has been violated or that the petition is otherwise untenable; otherwise, the Court shall issue a rule nisi to the respondent, directing him to show cause why the order sought should not be made, and shall adjourn the hearing for the respondent to appear an additional time.
If the Court orders the Respondent to be served with a show cause notice following a preliminary hearing, he has 30 days from the date of receipt of the notice, or 2 weeks before the hearing date, to file his objections, unless the Court determines differently.
Following the issuing of the rule nisi order, the Court may award the petitioner such ad-interim relief as the justice of the case may demand, on such conditions as it considers just and suitable.
Unless the Court directs otherwise, the rule nisi, combined with a copy of the petition and the affidavit in support thereof, must be served on the respondent not less than twenty-one days before the returnable date. All persons directly impacted, as well as any other persons instructed by the Court, must be served with the ruling.
Affidavits in opposition must be submitted at the Registry at least four days before the returnable date, and affidavits in reply must be filed within two days following the service of the affidavit in opposition.
Within four weeks after the filing of the pleadings, the petitioner must file the following written brief:
-> The brief must begin with a description of the pleadings required for the resolution of the issues at hand. Generally, this should be no more than two pages long.
->Following that, the petitioner must develop factual and legal propositions to be presented at the hearing, citing sources such as textbooks, statutory sections, rules, ordinances or bye-laws, or orders to support each of those arguments. When making judgments, official reports should be consulted if they are accessible. If feasible, the most recent edition of a textbook should be referred to.
The contested respondent must file his written brief within four weeks of receiving the petitioner’s written brief, outlining concisely why he disagrees with each of the petitioner’s proposals. He must mention any authority on which he intends to rely upon each of those reasons, just as the petitioner must. In his written brief, the respondent may express objections to the petition's maintainability or sustainability, as well as any remedy requested, in the form of propositions backed by authorities in the way stated above.
The petitioner may file a reply brief that is simple and to the point in response to the respondent's arguments expressed in the respondent's brief within one week of obtaining the respondent's brief.
Copies of needed affidavits and briefs must be served on the opposing party or parties, and the affidavits or briefs will not be accepted in the Registry unless such party or parties sign an endorsement of service. Upon demand and payment of the appropriate fees, any party to the case must give copies of any affidavit or brief filed by him to any other party. Affidavits and briefs must be filed in a minimum of seven copies.
If the Court decides that any of the propositions stated or reasons claimed by any of the parties in their written briefs are irrelevant or frivolous, it may award such party or parties such costs as it deems appropriate.
No party shall be permitted to progress any proposition or urge any ground not taken in the written briefs, nor shall any party be permitted to depend on any authorities (including provisions of statute, rule, bye-law, regulation, or order) other than those mentioned in the briefs, unless such authorities or provisions have been published, unless such authorities or provisions have been released with the Court's special permission.
If the Court feels that the parties should be allowed to prove their respective positions by presenting further evidence at the rule nisi hearing, the Court may take such evidence or cause such evidence to be taken in any manner it deems suitable and proper.
A party to a petition filed under this rule does not have the right to have the Court hear his or her written brief unless the party has already submitted a written brief in the petition.
Filing of Prohibition
The procedure for filing for writ of Prohibition remains the same with the difference that it directs the lower authority to not do something which is out of their ambit. This writ is only issued against the judicial and quasi-judicial bodies.
Filing of Certiorari
The procedure for filing for writ of Certiorari remains the same as the above with the difference this writ can only be issued against any lower body or tribunal.
Filing of Quo-warranto
The procedure to file this type of writ is the same as mandamus, prohibition and certiorari with the only exception that, it gives the court the right to restrain a person from acting in the capacity of public office to which he/she does not have the entitlement.
WHAT IS THE DIFFERENCE BETWEEN THE JURISDICTIONS OF ARTICLE 32 AND ARTICLE 226 OF THE CONSTITUTION OF INDIA?
Articles such as Article 32 and Article 226 of the Indian Constitution permit the Supreme Court and High Court to issue writs. There are a few distinctions between the two courts' writ jurisdiction. They are as follows:
Purpose:
Article 32 of the Indian Constitution is a Fundamental Right since it belongs under Part III, but Article 226 of the Indian Constitution is not.
Territorial Jurisdiction:
In the Indian territorial jurisdiction, the Supreme Court issues a writ against any person or authority. The high court, on the other hand, can only serve the writ against a person or government within its jurisdiction. The high court can only issue a writ outside the jurisdiction if the cause of action arose inside the jurisdiction.
Power:
Article 32 of the Indian Constitution limits the power to issue the writ to the protection of Fundamental Rights. In contrast, the writ might be issued under Article 226 of the Indian Constitution for the preservation of Fundamental Rights as well as any other reason. As a result, the Supreme Court cannot decline to exercise its authority by issuing a writ. The high court, on the other hand, has the authority to refuse to grant a writ.
CONCLUSION
One of the most significant authorities granted to the High Courts and the Supreme Court is the ability to award writs. Writs defend citizens’ rights by offering a speedier remedy, hence sustaining democratic norms by delivering rapid justice. The importance of writs cannot be overstated, and the courts must exercise this power with caution because they have been granted so broad authority.
[1] M.P. Jain, Indian Constitutional Law (7th Edition, 2014), LexisNexis, New Delhi. [2] AIR 1983 SC 378 [3] AIR 1973, SC 2684 [4] AIR 1961 SC372 [5] (1998) 8 SCC 143 [6] AIR 1989 SC 1607 [7] AIR 1952 MB 31 [8] AIR 1966, SC 828 [9] Syed Yakoob vs. K.S. Radhakrishnan, AIR 1964 SC 477 [10] AIR 1955 SC 233 [11] AIR 1986 SC 756
Witten By,
Kalpana Nailwal,
Intern, Chanchlani Law World
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