‘Writ’ is a Latin term which translates as any written command which is issued by a Court, and in essence means any order passed by a competent Court of law directing any individual or an entity to either undertake a specified action or desist from acting in any particular way. Writs have been incorporated in the Indian Legal System by way under the Constitution of India whereby the High Courts and the Supreme Court have been granted with the power of issuance of Writ or orders including the Writs of ‘
Habeas Corpus’, ‘Mandamus’, ‘Quo Warranto’,
‘Prohibition’ and
‘Certiorari’. Writ Jurisdiction in the Indian legal system ensures checks and balances against the misuse of power by machineries acting as the State by way of judicial review and ensures that the organs of the Government are not transgressing the powers conferred onto it. Additionally, writs are the remedy provided under law in case of violation of fundamental rights of any individual as provided under the Constitution of India and any person aggrieved may prefer a writ petition challenging such action and seek enforcement of their rights.
Competent Jurisdiction with High Court & Supreme Court
The constitution empowers each High Court and the Supreme Court under Articles 226 and 32 respectively with the power to issue writ upon a petition being filed before it. More particularly, writ jurisdiction vested with the High Courts and the Supreme Courts can be invoked in all instances wherein the fundamental rights as enshrined under the Constitution of India are violated by the state or any of its agencies. Each High Court is vested with the territorial jurisdiction of the respective state and can only issue writs pertaining to any action or inaction which arises out of its State.
Scope and Purpose of a Writ Petition
Broadly understood, writ petitions are necessitated in cases where the fundamental rights as protected under the Constitution of India are violated by any state organ or functionary action on behalf of the state. In addition to aforesaid, writ petitions may be preferred in cases wherein any organ of the state has failed to act as per the procedure established under law. Such actions are primarily against Article 14 of the Constitution of India which mandates the state to protect the equality of all persons which also means that the state cannot act in a manner that is unreasonable or arbitrary in its approach.
The remedy of a writ petition may also be availed in cases wherein there exists a patent incompatibility between the provisions of any law and the same is violative or restrictive of the fundamental rights as enshrined under the Constitution of India. Ordinarily, a writ petition is only maintainable against any action, omission, order or direction which has been at the behest of the State or any of its agencies, which includes the government its functionaries, statutory bodies, or any institution or entity which is owned by the State, such as Public Sector Undertakings. However, a writ may also lie against a private institution if it can be said to functioning in a public role and such actions affect the public at large.
Further, while a writ is only maintainable when the person filing it has a personal grievance against any action or inaction, however, by way of judicial intervention, the courts have expanded the scope of a writ petition to also include any action taken by any entity or individual against a public wrong which may not particularly affect the individual, however, is an issue which required consideration by the courts, by filing a PIL. PIL is a form of writ petitions which are recognized as action against a public wrong or grievance which is public in nature and requires redressal for the greater good of society.
Types of Writs
While a Writ is any order or direction that may be passed by a Court of law under any given facts of a case, the law recognizes 5 distinct types of Writs which may be issued by the Courts, each providing a specific relief to the Petitioner and the same have been briefly discussed as under:
The Writ of mandamus is the most common writ petitions before the High Courts or the Supreme Court under Article 226 and Article 32 of the Constitution of India respectively and is essentially filed seeking a direction upon any State functionary or authority to act and perform the legal obligations as per procedure established or from abstaining to act in a manner which is illegal. A writ of mandamus may be preferred when there no specific remedy is available under law and there is an apparent and patent illegality in some action or inaction by a state authority.
However, a writ of mandamus may only be entertained by the Courts when it is first demonstrated that the concerned authorities were approached and despite such representation have failed to act as per their legal obligations.
Habeas Corpus petitions are filed challenging the unlawful detention or arrest of any person by a state authority which has been done without following the due process of law or without any cause. The purpose of such a writ is to ensure that the personal liberty of individuals is not curtailed illegally, therefore it must be established prima facie that the detainee has been arrested without any grounds or without following the mandated procedure under law. It is important to note that such writ petition may be preferred either by the detainee himself or by any other person on his behalf.
A writ of quo warranto may be preferred challenging the authority of an individual to be holding a public office which they were otherwise not authorized to assume, either by virtue of his qualification or otherwise. However, such petition may only be preferred when such public office and position is permanent and not ad hoc or contractual.
The Writ of Certiorari and Prohibition are writs passed on the lower courts/ tribunals and all other judicial or quasi-judicial authorities in cases where they have exercised their jurisdiction in the absence of the same being conferred upon them in the particular case, or in cases wherein they exceed their own jurisdiction. While a writ of certiorari is maintainable in cases wherein either an order or judgment or decree has already been passed by such lower court, a writ of prohibition would lie is cases that are still on going and pending adjudication or order.
Filing of a Writ Petition
While both the High Court as well as the Supreme Court hold concurrent jurisdictions to entertain a Writ Petition and the same may be preferred before either of the Courts, however, action must first be instituted before the High Court since as a general practice the Supreme Court discourages parties from directly approaching it. However, matters which do not pertain to the exclusive jurisdiction of any particular High Court and involve larger issues of national significance, may directly be filed before the Supreme Court.
It is also pertinent to mention that if the Petitioner is himself not available in the country at the time of filing and for other procedural formalities, the same may also be filed through his Power of Attorney holder. While different High Courts have their independent rules for the procedural formalities, ordinarily, before the matter is taken up for hearing by the Bench, an advance serve of notice to the respondents must have been completed.
On the first date of hearing the Court must be prima facie satisfied that the matter is fit to be heard by it whereafter it issues notice upon the opposite side for entering appearance before itself. Thereafter, the Court after providing due opportunity to the other side for advancing both its written and oral arguments decides the matter on merits.
Appeal against an order passed in a Writ Petition
While each High Court has its own rules and set of procedures which govern the filing, listing and hearing of Writ Petitions, ordinarily they are heard and adjudicated upon by a bench headed by a single judge. Thereafter, depending upon the particular High Court, a provision for an intra-court appeal may be available.
For example, the Delhi High Court has the provision of preferring a Letters Patent Appeal for challenging an order passed in a Writ Petition. The said Appeal is heard by the High Court, however, such bench is headed by two judges of the same Court. The decision in the appeal becomes binding upon the parties.
In cases where there is no provision of an intra-court appeal, the order passed by in the Writ Petition may be challenged before the Supreme Court by way of a Special Leave Petition, however, the same remains to be under the extraordinary jurisdiction of the Supreme Court and there is no inherent right to prefer such an appeal. The Court may exercise its discretion in entertaining such an appeal depending on the facts and grounds pleaded by the party.
Difference between a Writ Petition & Civil Suit
While any private wrongs remain within the domain of civil law and the remedy lies by preferring a civil suit for the specific relief sought against any private party, the remedy of a writ petition is maintainable only against state agencies wherein any action or inaction amounts to violation of the fundamental rights of any person.
Furthermore, the proceedings in a writ petition are summarised in nature and the strict rules of the Code of Civil Procedure are not applicable. The parties are not required to discharge or lead extensive evidence or examination of witnesses, as in the case of Civil Suits which are strictly governed by the provisions under the Code of Civil Procedure.
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