Writing the petition is a higher court order for a lower court or courts to order or prevent something from being done by the lower court. The writ is a type of written court order. It causes you to behave in a specific manner.
You may file or draft a written petition in the Indian court system in the High Court under Article 226 and in the Supreme Court under Article 32 of the Indian Constitution. The procedure and significance of the writ are addressed in Article 32 and Article 226 of the Indian Constitution. Or, you can approach an experienced advocate at any time to make a written submission. Depending on the situation you have, you may also file a criminal or civil petition at the High Court or the High Court. If the High Court does not make an acceptable decision, otherwise you may send the appeal of the letter to the Supreme Court.
In order to enforce any fundamental right guaranteed in accordance with Article 32 of the Indian constitution, the Indian Constitution gives the Supreme Court power.
The authority to make a written petition in India is primarily a provision for the right of every citizen to constitutional remedies and this right acts as a guarantee of all other basic rights in India. In the Indian constitution, there are five types of writ petition can be filed before the High Court or the Supreme Court, such as (1) Habeas Corpus, (2) Mandamus, (3) Prohibition, (4) Certiorari, (5) Quo Warranto
(1) Habeas Corpus:
This writ is used by the court to find out if someone is detained illegally. Habeas Corpus is a Latin term which means “Let us have the body”. The court also uses this writ to summon the person detained to the court. Habeas corpus can be file by the person detained or other people on behalf of the detained person. In the case of P.S. Sadashiv Swami vs. State of Tamil Nadu the court explained the meaning of the writ petition of Habeas corpus. One may file Habeas Corpus’ writ petition in either of the tribunals, be it High Court or Supreme Court. In the following circumstances, you can also issue it where:
The person was arrested but not filed with the judge within 24 hours of arrest. The arrest took place without a person’s breach of the law. An unconstitutional law was arrested and that is to say a law against the Indian Constitution’s provisions. Detention is carried out with an evil intention or in order to harm individuals.
Mandamus or “we command” is issued where a warrant needs to be given to a lower court or police officer that has refused to execute an official obligation that was meant to have been fulfilled. A written Mandamus petition may be filed against the following: A President / State Governor, Present-day Chief Justice, A private/individual institution. Under this, a person may file a mandamus written petition against even the country’s president, if he/she believes the president was unable to perform the official duties. It is necessary to consult top lawyers in India for a written petition before proceeding with filing a mandamus request. Writ of mandamus can be file by an individual or a private body.
Prohibition written for the court is given to discourage or impose a stay on the authority’s exercised force, which is generally referred to as stay order. In India, a written petition is issued against the lower court proceedings and the lower court exceeds its powers in such proceedings. Once the prohibition writing is authorized either by the Supreme Court or the lower court’s proceedings come to an end in High Court. In the case of GOVIND MENON vs. UOI the Supreme Court set out the requirements under which a prohibition letter may be issued. The court’s conditions are to: When jurisdiction is excessive, or when jurisdiction is lacking.
Certiorari means “being certified.” The Supreme Court may file this type of writing with a lower court or tribunal to order a transfer of the matter to a high court or to itself. Only when the following conditions are fulfilled may an individual may file a writ of certiorari: There must be a judge, jury, or officer with the proper power to decide the matter and the responsibility to act in a judicial way. The court, tribunal or officer in question must have acted in excess of the judicial authority vested by law, or in the absence or excess of it. The passed order may be contradictory to the ideals of natural justice. Or it may include a misjudgment in determining the facts of the case.
(5) Quo Warranto:
Quo-warranto means ‘under whose power’ or ‘person holding a public office on what power is. To question a person holding a position in the workplace, this writ is issued against a government officer or public address. If the following conditions are met, this type of writ can be filed: The person the writ is filed against must hold a public post. The holding of this position must be in violation of the law. The office must be substantive and not merely a servant ‘s function or employment at the will and during another’s a pleasure.
How to file a writ petition?
A writ petition can be filed in high court under article 226 and in the supreme court under article 32. To file a writ petition it is firstly important to identify the type of writ which has to be filled. After that, you have to draft the writ petition. After drafting you can file the petition in filing section of the court. The court on the date of hearing will acknowledge the petition and will send a notice to the other party. After that, the court will decide on a date for hearing when both the party will be available. The court will then finally consider all contentions in the petition and then will provide assistance to the party.
(AIR 1974 SC 2271)
AIR 1967 SC 1893
This article is written by Avani Malhotra student of 3rd-year B.A. LLB (Hons.) at the Institute of Law Nirma University