Writ petitions
A writ is a written official order issued by the court. The formal order may be in form of warrant, direction, command, order etc. Writs can only be issued by the High Court Under Article 226 of Indian Constitution,1950 and by The Supreme Court under Article 32 of Indian Constitution,1950. Indian constitution has adopted the concept of prerogative writs from English common law. Writs was first used to describe a written command of the King. Whereas, these writs are now available to a person aggrieved by the decision of the inferior courts or administrative body in England.
Differentiating between writs and order it can be said that writs can be issued to provide extraordinary remedy i.e in cases where the aggrieved person is seeking for an extraordinary remedy usually against an administrative action, whereas, order can in passes in any matter. There are 5 different types of writ provided under law, whereas, no such classification for orders has been made. Hence, all the writs can be called as order but all order can’t be called writs, because the ambit of order is larger than writs.
Types of Writ
There are 5 types of writes specified under Indian constitution law.
Habeas corpus
Writ of habeas corpus can be issued for preserving the liberty of a person, who is being illegally detained. It can be invoked against the state as well as against the person within whose custody the aggrieved person is. It came into the picture for preserving the rights and liabilities of Writ of habeas corpus is a powerful weapon available before a common man who has been wrongfully detained by the person or state. This writ provides a fast and powerful remedy against illegal detention.This writ is an order calling the person who was arrested or jailed the alleged person for producing the aggrieved before the court, for knowing the grounds of his detention and if not found any legal ground for his detention then let the aggrieved be free from arrest and let him enjoy his freedom.
Mandamus
History of this writ say that it is a command, issued in the name of the crown by the court of king’s bench to the subordinate court, inferior tribunal, board or to any person requiring it for him to perform a public duty imposed by law. Therefore, a writ of mandamus is a command given by any high court or supreme court to the lower court or any tribunal or board or to any other public authority to perform their public duty imposed upon them by law. It’s primary objective is to supply defects of justice and prevent rights of the citizen.
Prohibition
Writ of prohibition is as old as common law. Initially it was used to limit the jurisdiction of ecclesiastial by restraining them from acting without or in excess of their jurisdiction and later it is used by common law courts. Before the enactment of the Constitution of India, there were three charters under which court use to exercise their power and after the enforcement of the constitution High Court and Supreme Court exercise the power to issue this writ. It is an extraordinary writ of preventive nature. It prevents courts, tribunal, quasi judicial bodies and other officers from exercising their power beyond their jurisdiction or exercising those powers which are not vested on them.
Certiorari
Writ of certiorari has been defined as one of the most effective and efficient remedies taken from common law. Certiorari means “to certify”. It is an order issued by the High Court to an inferior court or any authority exercising judicial or quasi-judicial functions. The main object of this writ is to keep the inferior courts, judicial and quasi-judicial authorities within their limits of jurisdiction and if the act in access of their jurisdiction their decision will be quashed by the High Court and Supreme Court by issuing a writ of certiorari.
Quo Warranto
Writ of quo warranto have following features:-
Object– prevent the person from wrongfully or forcefully holding any office or from continuing the office. By writ of quo warranto court has the authority to ask the holder of the office that by what authority he is holding the office. Writ can be issued only if the office in question is a public office and any person claiming a writ must establish this fact first. Also it needs to be proved that the office in question is usurped without legal authority. Therefore that lead to an enquiry that the person claimed to be usurped the office is appointed legally or not. A writ is a written official order issued by the court. The formal order may be in form of warrant, direction, command, order etc. Writs can only be issued by the High Court Under Article 226 of Indian Constitution,1950 and by The Supreme Court under Article 32 of Indian Constitution,1950. Indian constitution has adopted the concept of prerogative writs from English common law. Writs was first used to describe a written command of the King. Whereas, these writs are now available to a person aggrieved by the decision of the inferior courts or administrative body in England.
Differentiating between writs and order it can be said that writs can be issued to provide extraordinary remedy i.e in cases where the aggrieved person is seeking for an extraordinary remedy usually against an administrative action, whereas, order can in passes in any matter. There are 5 different types of writ provided under law, whereas, no such classification for orders has been made. Hence, all the writs can be called as order but all order can’t be called writs, because the ambit of order is larger than writs.
Certiorari
Writ of certiorari has been defined as one of the most effective and efficient remedies taken from common law. Certiorari means “to certify”. It is an order issued by the High Court to an inferior court or any authority exercising judicial or quasi-judicial functions. The main object of this writ is to keep the inferior courts, judicial and quasi-judicial authorities within their limits of jurisdiction and if the act in access of their jurisdiction their decision will be quashed by the High Court and Supreme Court by issuing a writ of certiorari.
A writ is a court order that directs or mandates a person to do or refrain from doing something.Writs are public law remedies and are an essential part of the judicial review powers of the superior courts in India. Writs play an important role in governing the relationship between an individual / body corporate and public bodies as well as between multiple public bodies. Given that public authorities interact with individuals / body corporates in a commercial capacity, it is necessary to understand the remedies available under writ jurisdiction in India. In this primer, we discuss the concept of writs and the different types of writs that a court can issue in India.
What is a writ petition? A petition that is filed before a court of law, requesting the court to issue a writ is known as a writ petition. You can file a criminal writ petition or a civil writ petition. A criminal writ petition can be filed to enforce the rights of an accused, or any other matter related to the criminal law, including arrest, release on bail, custodial violence etc. A civil writ petition can be filed in cases related to revenue (such as Income Tax, Customs & Excise, Sales Tax), environment laws, Intellectual Property Rights, patent law, etc.
In India, the Supreme Court and the High Courts have the power to issue writs. The Supreme
Court draws its power to issue a writ from Article 32 of the Constitution of India, 1949
(“Constitution”), while the High Courts derive their power from Article 226 of the Constitution.
In India, the various writs are as follows:
a. Writ of habeas corpus,
b. Writ of certiorari,
c. Writ of mandamus,
d. Writ of quo warranto, and
e. Writ of prohibition.
A writ of habeas corpus is used by the court to bring a person before a court. The literal
interpretation of ‘habeas corpus’ is “you have the body”. This writ is mainly employed by a
court to ensure that a person is not detained or imprisoned without the authority of law, and
thus, in violation of his/her rights.
The literal meaning of the term ‘certiorari’ is “to be more and fully informed”. The writ of
certiorari empowers a superior court to direct the lower courts or judicial and quasi-judicial
tribunals and bodies to deliver the records in a case to a superior court.
Mandamus is a writ issued by courts to compel the performance of a particular act by lower
courts, quasi-judicial bodies or bodies that discharge public functions. The writ of mandamus
is also employed to correct an abuse of discretion.
The literal translation of the term ‘quo warranto’ is “by what authority”. The superior courts
have the power to issue the writ of quo warranto against a person requiring the person to
show what authority they have for exercising some right or power they claim to hold.
The writ of prohibition is the power of the superior court to command lower courts or quasijudicial body to not exercise powers beyond their jurisdiction. This writ prevents the lower
courts or quasi-judicial bodies from abusing or exceeding their judicial powers or acting in
violation to principles of natural justice.
The writ of prohibition is the power of the superior court to command lower courts or quasijudicial body to not exercise powers beyond their jurisdiction. This writ prevents the lower
courts or quasi-judicial bodies from abusing or exceeding their judicial powers or acting in
violation to principles of natural justice.
Writs can generally be issued against the government, a body exercising judicial or quasijudicial functions, public authorities and institutions discharging public function.
Issuing a writ is a public law remedy and is generally available only against public bodies and
bodies that are discharging public duties. However, a writ of habeas corpus can be issued
against a private body also. Indian Courts have also entertained writ petitions against private
persons, when such a private person is imposed by a public duty.
Article 32 is invoked for the enforcement of fundamental rights under the Constitution,
whereas Article 226 is invoked for enforcement of fundamental right as well as other legal
rights, where no alternative statutory remedy is available or is efficacious. However, under
Article 32, the Supreme Court has the authority to issue writs across India and therefore its
territorial jurisdiction is broader. On the other hand, Article 226 allows a High Court to issue a
writ exclusively in its own local jurisdiction. As a result, the territorial authority of High Court is
narrower and limited.
Under the Indian legal system, there is no time limit prescribed to file a writ petition before the
relevant courts. However, it must be noted that in various judgements, the courts have
observed that the aggrieved party should move the courts within a reasonable time. The
courts in various judgements have also noted that, if there is a delay in filing a writ petition,
then the party filing the petition should have a satisfactory explanation for such delay
In India, an individual whose rights have been violated by the action or the inaction of a public
body or a body carrying out state functions can file a writ petition. Apart from the aggrieved
individual, writ petitions can also be filed by public spirited citizens. This expansion regarding
who has the power to file a writ petition is to ensure that the ends of justice are not overlooked
or ignored due to technicalities.
Indian Courts have laid down that they will entertain writ petitions in exceptional
circumstances despite the parties having an alternative remedy such as invoking arbitration
proceedings. Some of these circumstances are:
a. Where the writ petition seeks enforcement of a fundamental right;
b. Where there is a violation of principles of natural justice;
c. Where the act complained of is in fact in excess of the power of the party committing
such act.
Arbitration is governed by a private contract between the parties. Since writs can be issued by
the courts only against public bodies, a writ cannot be issued against an arbitral award. Indian
Courts have held that writs can be issued against arbitral awards in case of exceptional rarity,
where a party is either rendered remediless or there is an element of bad faith involved.
