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Writ Petition

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Writ Petition is a request by a higher court to the lower court or courts guiding them to act or prevent them from doing the activity.

The Indian Constitution accommodates five writ appeal types – Habeas Corpus, Mandamus, Prohibition, Certiorari, Prohibition and Quo Warranto. This can be additionally classified into civil writ and criminal writ appeal.

To peruse further about how to record writ petitions in the High Court or Supreme Court, read further.

 

What is Writ Petition in High Court?

Writs in India are the formal request of the court coordinating the experts if there is an infringement of principal rights by an administration specialist or body.

One can file a Supreme Court writ appeal under Article 32 of the Constitution. Though, you can document the writ request in high court under Article 226 of the constitution.

One can file Writ petitions in India for a Civil or Criminal case: Click To Tweet

-> You can file a criminal writ request when the reason for activity in connection to the criminal law, for example, the privilege of blamed, safeguard, and so forth.

-> You can file a common writ request when somebody commits a civil wrong, for example, IPR, charges, and so forth.

 

Type of Writs in the Constitution of India

The Indian Constitution enables the power to the Supreme Court, where it issues writ petitions in India for the implementation of any essential rights ensured under article 32 of the Indian Constitution. 

The power to issue a writ petition India is principally a provision to the rights to the constitutional remedies for each resident, and this acts as a guarantor for all the key rights in India.

 

The 5 types of writ petitions in the Indian Constitution are as follows:-

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

 

1. Habeas Corpus Writ Petition

The literal meaning of the term Habeas Corpus signifies, ‘you may the body of’. You can record this kind of writ request when an individual is illegally detained. Which means if the court discovers that the individual is unlawfully kept; at that point, it can order the release of that person.

For Example -When one records writ petitions of Habeas Corpus in nature, at that point, the court arranges the authority to deliver the confined individual before him to look at whether (s)he has been analysed legitimately or illegally.

The extent of habeas corpus writ request has been enlarged by the Supreme Court. Presently you can likewise file it for the fundamental rights of the prisoners.

The Supreme Court clarifies the significance of writ appeal of Habeas Corpus very well on account of P.S. SADASHIV SWAMI versus Territory OF TAMIL NADU (AIR 1974 SC 2271).

Thus, the clarification of writ request importance is as per the following:

  1. Court has the authority to ask questions concerning the reasons for the confinement of the detained individual.
  2. The court can issue a summon for the generation of the detained individual in the court.

  3. If it is presumed that the confinement of the individual is illegal, it can order for the release of the person.

One can file the writ appeal of Habeas Corpus in any of the courts, be it High Court or the Supreme Court. Additionally, one can issue it under the accompanying conditions where:

  1. The individual has been detained yet has not been produced before the judge inside 24 hours of capture.

  2. The arrest has been made with no infringement of law done by the individual.

  3. The arrest has been made for an illegal law, for example, a law against the arrangements of the Indian Constitution.

  4. Detainment is finished with malafide expectation, or with the goal to hurt or harm the people.

 

2. Writ of Mandamus

Mandamus is a Latin word which means ‘we order’. Mandamus is a court writ whereby the higher courts arrange the lower court, council, discussion or any other public authority to complete a demonstration which generally likewise falls under the domain of their obligation. 

One issues the writ of mandamus when an open officer neglects to play out his/her official obligation or something which shapes some portion of his/her official obligation.

If the court feels that there may have been a disappointment in playing out the obligation by the lower court or the public authority, at that point the court may permit the writ of mandamus.

The basic prerequisites of the Mandamus writ request for the court were portrayed by the Supreme Court on account of MANI SHOBHREJ JAIN versus STATE OF HARYANA (1977 (1) SCC 486).

The court set out the accompanying requirements of the writ of mandamus:

  1. There ought to be a legitimate right in existence,

  2. The lawful right ought to be enforceable by the court,

  3. Implementation of such a right must force a duty of per on an individual, public authority, corporation or government,

  4. Such duty is of public nature.

Who can document the Writ of Mandamus?

  1. Any person is it an individual or a private body can file for the petition for the court request under the writ of mandamus, just on the off chance that they have lawful rights in the concerned matter to do so.

  2. Under the writ of mandamus, you can file a case even against the leader of the nation. If the court believes that the Public Authority has neglected to play out its obligation, the court may issue the writ of mandamus.

 

3. Writ of Prohibition

As the name recommends the writ of prohibition is a court request issued either by the Supreme Court or High Court to disallow.

At the point when the lower courts including the councils, discussions or any open expert (justice, commissions or some other legal officers) accomplish something which surpasses their locale the Supreme Court or High Court precludes them by issuing the writ of prohibition.

Prohibition writ for the court is issued to stop or put a stay on the power law practised by the authority and is commonly known as ‘stay order’.

In India, a writ petition which is issued against the procedures going on in lower courts and in such continuing the lower court is surpassing its powers. When the writ of prohibition is permitted either by the Supreme Court or in High Court the procedures of the lower court arrived at an end.

 

4. Writ of Certiorari

In the literal sense, the word certiorari signifies, ‘to be certified’.  One can issue the writ of certiorari by the Apex court for exchange of the issue to it or any superior authority for appropriate thought.

You can issue the writ of certiorari against the substandard court or council. (e.g., a high court writ request can be issued against lower region courts)

In basic terms, one can issue the writ of certiorari when the subordinate courts or the semi-legal bodies act in:

  1. The nonattendance of their jurisdiction, or

  2. Exceeds their jurisdiction, or

  3. Fails to make the use of their jurisdiction.

The Essential Condition for Writ of Certiorari:-

  1. There ought to be court, council or an officer having the legitimate expert to decide the inquiry with an obligation to act judicially.

  2. Such a court, council or officer more likely than not passed a request acting without jurisdiction. Or then again in abundance of the judicial authority vested by law in such court, council or officer.

  3. The order could likewise be against the principles of natural justice. Or on the other hand, the request could contain an error of judgment in valuing the actualities and the facts of the case.

 

5. Writ of Quo-Warranto

Writ of Quo Warranto implies a writ that you can issue to restrain an individual from acting in the capacity of public office to which he/she doesn’t have the entitlement. Here, the term Quo-Warranto signifies, ‘by what authority’ or, ‘on whose authority is one holding a public office’.

For instance:

  1. There is a vacancy in the government, and by giving occupation to a 63-year-old individual, they fill that vacancy.

  2. However, since, the retirement age is 60 years, so for this situation, one can file a writ of quo-warranto to expel such individual from the public office.

 

How do I File a Writ Petition?

Here is a step by step process to file the writ petition.

Step 1 – Draft writ petition – Hire top civil legal advisors to assist you with the general system of drafting and portrayal in court.

Step 2 – After drafting, you can file the appeal at the filing counter in court.

Step 3 – On the date of hearing, the court will admit the petition and send a notice to the other party.

Step 4 – Then, the court will fix another date for the hearing. This will be in the presence of such other party if it chooses to appear.

Step 5 – Here the court will at last think about the petition, thereby granting a relief accordingly.