Disquisition on Writ
- Essentials of Writ
- Procedure of filing Writ Petition
- Types of Writs
- Important Points to Remember
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.
Essentials of Writ
A writ petition can be filed in the High Court of that particular state (Article 226) or the Supreme Court (Article 32) of India when any of person’s fundamental rights are violated. The jurisdiction with the High Courts (Article 226) with regards to a writ petition is wider and extends to constitutional rights too.In case of Habeas Corpus, the writ cannot be issued by the High Court if that person is detained outside its jurisdiction.
Procedure of filing Writ Petition:
The following steps should be followed to file a writ petition:
- The very first step is ascertaining whether the cause of action is remedial by the issue of a writ.
- The aggrieved person needs to file a petition with the help of a lawyer or by himself annexing all the documents necessary, affidavit and the prayer.
- This petition will be filed in the filing counter of the respective High Court and a future date for consideration of the matter will be given.
- On this date the lawyer or the person himself can plead the matter, the High Court has the power to accept or dismiss the petition.
- If the court admits the petition, then a notice is sent to the opposite party and another date of hearing is given by the Court.
- On the date of hearing the contents are settled and the Court grants relief as it finds appropriate.
Types of Writs
There are five types of writs: namely, Habeas Corpus, Mandamus, Prohibition and Certiorari,Quo Warranto.They are as follows-
A writ of Habeas Corpus is used by the courts to find out if a person has been illegally detained. If the answer is yes, the court can order for his release. If a person has been illegally detained, he himself, a friend or even a relative can file a writ of Habeas Corpus. Habeas Corpus is Latin for ‘Let us have the body’ (or, let us see the person who has been illegally detained). Through Habeas Corpus, the court can thus also summon the person detained or imprisoned to the court.
To file a Habeas Corpus petition
Although generally a petition is to be filed by the person being detained or arrested, as per Habeas Corpus, any other person can do it on behalf of the detained individual. This writ (written petition) can be issued against a public authority or any particular individual.
A writ of Mandamus is issued by a higher court to a lower court, tribunal or a public authority to perform an act which such a lower court is bound to perform. If a public official is not performing his duty, the court can order it or him/her to do that. Mandamus means we command.
To file a Mandamus petition
Mandamus or the ‘we command’ writ can be issued against anyone, including the president or governor of the state, a private person or chief justice. Any individual or a private body can file a writ petition of mandamus, subject to the person/persons having legal rights to do so, in the matter concerned.
A writ of prohibition, also known as a ‘stay order’, is issued to a lower court or a body to stop acting beyond its powers.
While a writ of mandamus is issued for any activity that is not legal, the writ of petition is issued against the lower courts, such as magistrates and commissions, for inactivity in the matter of concern. The High Court and Supreme Court can issue the Writ of Prohibition.
Writ of Certiorari
The writ of Certiorari is issued by the Supreme Court to a Lower Court or any other body to transfer a particular matter to the higher courts than itself. The Writ of Certiorari is issued by the high court to the lower courts or tribunal, when an error of jurisdiction or law is believed to be committed.
Writ of Certiorari is a curative writ.
The writ of Quo Warranto (by what warrant) is issued to inquire about the legality of a claim by a person or authority to act in a public office, which he or she is not entitled to. The writ is only for the public offices and does not include private institutions/offices.
A writ can be filed only if your fundamental rights are being violated. Generally, you can file a writ petition against state and government agencies. However, a writ Petition can also be issued against private authorities when they are discharging public functions.
Important Points to Remember
1. If the petition is dismissed, no fresh petition can be filed on the same cause of action.
2. It is advisable that the aggrieved party consult a lawyer and let the lawyer file the petition with his expertise.
3. In case of a Habeas Corpus petition, the petition can be filed by a simple application of the aggrieved.
4. Do not file vexatious or frivolous petitions.