Writ Petition

From Justice Definitions Project

What is a writ petition?

Writ Petitions (including Public Interest Litigation) are a distinct type of court case which don't deal with general law and order or civil disputes between private parties. Instead, any time that a citizen’s rights (including fundamental rights) are violated, Article 226 of the Constitution of India empowers them to approach the relevant High Court for restoration of the right in question. The aggrieved party petitions the court to issue formal, written orders or directions to a specific government authority for relief. Such cases help reveal how citizens interact with the judiciary as an independent pillar of the state and place their faith in courts to take action against executive overreach, impropriety or lack of action.[1]

Official definition of a writ petition

A writ petition is an application by a petitioner where prayer is made for the issuance of a writ for the redress of his grievances. The Constitution of India, under Articles 32 and 226 confers writ jurisdiction on Supreme Court and High Courts, respectively for enforcement/protection of the fundamental rights of an Individual. A writ petition contains averments or statements sworn, in form of an affidavit.

Writ Petition in the High Courts: Article 226 empowers the High Courts to issue certain writs. Article 226 gives discretionary power to the High courts to issue directions, orders, and writs including the writs in nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari. Article 226 is invoked not only for fundamental rights but also for a violation of other rights.

Writ Petition in the Supreme Court: Article 32(2) gives the Supreme Court power to issue writs, orders or directions. It states that the Supreme court can issue 5 types of writs habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for the enforcement of any fundamental rights given under Part III of the constitution. The Power to issue writs is the original jurisdiction of the court. Further, Article 139 empowers the Parliament to confer by law additional power on the Supreme Court to issue directions, orders or writs for purposes other than the enforcement of fundamental rights.

The scope of Article 226 is much wider than Article 32. Article 226 not only gives the power to issue direction, orders or writs not enforce fundamental rights but also for the enforcement of other rights too. Article 226 empowers the High court to issue directions, orders or writs to any person, authority, government, or public officials. Article 226 also talks about the interim order for writs and also states the mechanism of how interim orders will be disposed of by the High courts.

Types of writ petitions

Types of Petitions Details
Habeas Corpus The Writ of Habeas Corpus is issued by the Courts in those cases where a person is illegally detained. Habeas Corpus means ‘to have the body’ and it is one of the most effective remedies available to a person detained. By this Writ, the Court commands the person or authority who has detained or restrained another person to present such person before the Court. The Court requires the detaining person to provide the grounds on which the person has been detained and if he fails to provide a valid ground, the person who has been detained will be released by the Court immediately.

Usually, the detained person and his family members are allowed to file an application for habeas corpus but the court has also allowed such application by strangers if it is done in the public interest. The writ of Habeas Corpus also applies in case of an arrest made by the police when all the formalities and procedures which are required to be followed are not followed. For example – the requirement of presenting the arrested person before a magistrate or the officer in charge of the police station. [Section 56 of CrPC]

Mandamus In the Writ of Mandamus, the superior courts order the Inferior Courts to do an act or to abstain from doing an act. This order can also be given to an Inferior Tribunal, Board, Corporation or any other type of administrative authority. In India, the Supreme Court is the apex court, therefore it has the power to issue the Writ of Mandamus even against the High Court even though the High Courts have also been provided with the power to issue such Writs under Article 226. This Writ is useful for enforcing the duty which is required to be done by law or by the office that a person holds.

Usually, the person whose right is infringed is allowed to apply for the Writs of Mandamus but after the Supreme Court adopted a liberal view and the advent of Public Interest Litigation in India, a public-spirited citizen can also apply for the issuing of the Writ of Mandamus on other people’s behalf. The essential ground for Mandamus is the absence of an effective alternative remedy which can be resorted to by the petitioner to enforce the duty of the authority. It is important to note that the writ is issued when an authority does not perform its mandatory duty. Mandatory duty is different from discretionary duty which does not fall under the purview of the writ of mandamus.

Certiorari The writ of Certiorari is corrective in nature which means the purpose of this Writ is to correct an error which is apparent on the records. Certiorari is a Writ which is issued by a superior court to an inferior court. This can be issued when the superior court wants to decide a matter in the case itself or if there is an excess of jurisdiction by the inferior court. This Writ can also be issued when there is a fundamental error in the procedure followed by the inferior court or if there is a violation of the principles of natural justice. If the superior court finds out that there has been a violation of natural justice or a fundamental error in the procedure adopted, it can quash the order of that inferior court.

The Writ of Certiorari lies against those bodies which are judicial or quasi-judicial in nature. Thus, when anybody or a person is performing a judicial act, their acts can be subjected to the Writ of Certiorari. It also means that the scope of the application of this Writ is limited to only the judicial bodies or the bodies which perform judicial functions and it will not extend to the Central, State or Local Governments because their functions are administrative in nature and not judicial.

Prohibition The Writ of Prohibition is an extraordinary remedy that a Higher Court issues to an inferior court or tribunal for stopping them from deciding a case because these courts do not have the jurisdiction. If the court or tribunals does not have jurisdiction and it still decides the case, it will be an invalid judgement because for an act to be legal it should have the sanction of law.

This Writ can be issued only when the proceedings are pending in the inferior court and not when an order has already been passed by that court. Thus, this Writ is a preemptive remedy which is exercised by the superior court to prevent the inferior court from acting outside its jurisdiction. Both the Writs Certiorari and Prohibition appear to be the same but there is one major difference between the two. In the Writ of Prohibition, the superior court issues the writ before the final order is passed by the inferior court and therefore this is a preventive remedy, while in the Writ of Certiorari, the superior court issues the Writ after the inferior court has made the final order. Thus the Writ of Certiorari is a corrective remedy by which the order of the inferior court is quashed.

Quo Warranto The Writ of Quo Warranto is issued by the courts against a private person when he assumes an office on which he has no right. Quo Warranto literally means ‘by what authority’ and it is an effective measure to prevent people from taking over public offices.

Appearance in Official Databases

National Judicial Data Grid (NJDG)

The National Judicial Data Grid (NJDG) for the High Courts gives the current status of disposed off and pending cases under the writ jurisdiction.

Pending cases under writ jurisdiction across High Courts

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The National Judicial Data Grid subcategories writ cases into eleven case types. They are:

  1. Service matters
  2. Cross Objections
  3. Habeas Corpus
  4. Execution
  5. Suo Moto
  6. Filed by Govt.
  7. PIL
  8. Special Subjects
  9. Industry/Bank/Finance/Insurance/Insolvency
  10. Company
  11. Tax/Excise/Duty/Cess.

High Courts website

The High Courts websites do not follow a uniform method of sub categorising writ petition according to case types. Some High Courts generally classify writs as writ (civil), writ(criminal) and PIL while some have adopted subject specific classification. Significantly, the Allahabad High Court follows a broad categorisation of case types under the heads Writ-A, Writ-B, and Writ-C.

Challenges & Variations

  1. Gujarat identify writs as “SCA” and “SCrA” which makes it difficult for anyone not practising within the court to understand the volume of writs and study deeper.
  2. Classification within Writs is not harmonised and therefore some courts enable distinction between say civil and criminal writs or service and non-service writs while others do not. There are certain kinds of writs as separate case types based on practical considerations.
  3. Writs under Article 226 and petitions under Article 227 are classified under the same head and named ‘Writ’

Research that engages with Writ Petition

DAKSH Writ Dashboard

The database[2] provides wider context on the scope of writ cases within the judicial system and explores subject matter, time taken and case outcomes.

A Study of Karnataka High Court’s Writ Jurisdiction, VIDHI

In this study,[3] case data from writ petitions filed between 2012 to 2016 was examined to see how it has exercised its writ jurisdiction and the challenges it faces in doing so.

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