Monday, 7 February 2022

Writ petition

 Writ Petition is an order by a higher court to a lower court or courts, directing them to do something or stop them from doing something. Writ is a form of written command in the name of the court. It directs you to act in a specific way.

In the Indian legal system, you can file or draft a writ petition under Article 226 in the High Court and under Article 32 of the Indian Constitution in the Supreme Court. Article 32 and Article 226 of the Indian constitution elaborate on the process and meaning of the writ petition. Or else, at any point in time, you can consult an expert lawyer to draft a writ petition for you. You can also file a criminal or civil writ petition in the High Court or the Supreme Court, depending on the case matter. In case the High Court doesn’t give a suitable judgment, you can then submit the petition of the writ in the Supreme Court.

Know what a writ petition is, what are its types in the Indian Constitution, how you can file one in Indian High Court or Supreme Court, and the format of each writ with a sample.


What is a Writ Petition in High Court?

Writ in India is the formal order of the court directing the authorities if there is a violation of the Fundamental Rights by a government authority or body. You can file a writ petition in the Supreme Court under Article 32 of the Indian Constitution, whereas you can file the writ petition in High Court under Article 226 of the Indian constitution. You can also file Writ Petitions in India for a civil or a criminal act.

You can file a criminal writ petition when the cause of action in relation to the criminal law such as the right of accused, bail, etc.

You can file a civil writ petition when someone commits a civil wrong such as IPR, taxes, etc.

Type of Writs in the Constitution of India

The Indian Constitution gives the power to the Supreme Court, where it issues Writ Petitions in India for the enforcement of any fundamental rights guaranteed under Article 32 of the Indian Constitution.

The power to issue a writ petition in India is primarily a provision - to the Right of Constitutional Remedies to every citizen and this right acts as a guarantor of all other fundamental rights in India.

There are five writ petition types in the Indian constitution, which you can file either before the High Court or Supreme Court such as:

Habeas Corpus

Mandamus

Prohibition

Certiorari

Quo Warranto

1. Habeas Corpus Writ Petition

The literal meaning of the term Habeas Corpus means, ‘you may have the body of.’ You can file this type of writ petition when a person is illegally detained. Meaning, if the court finds out that the person is illegally detained, then it can order for the release of that person.

For Example:

When one files writ petitions of Habeas Corpus in nature, then the court orders the authority to produce the detained person before him to examine whether he/she has been examined legally or illegallyOn conducting the examination, if the court finds that the person has been illegally detained, it can order for the release of the person 

The scope of habeas corpus writ petition has been widened by the Supreme Court. Now you can also file it for the violation of fundamental rights of the prisoners (eg: Sunil Batra vs. Delhi Administration). The Supreme Court explains the meaning of the writ petition of Habeas Corpus very well in the case of  P.S. SADASHIV SWAMI vs. STATE OF TAMIL NADU (AIR 1974 SC 2271)[1].

Thus, the features of the writ petition are as follows:

Court has the authority to ask questions regarding the causes of detention of the detained person

The court can issue a summon for the production of the detained person in the court

If it is concluded that the detention of the person is illegal, it can order for the release of the person

One can file the writ petition of Habeas Corpus in any of the courts, be it High Court or the Supreme Court. Also, one can issue it under the following circumstances where:

The person has been detained but has not been produced before the magistrate within 24 hours of arrest

The arrest has been made without any violation of law done by the person

The arrest has been made for an unconstitutional law i.e. a law against the provisions of the Indian Constitution

Detention is done with malafide intent, or with the intent to harm the persons

Who can file a writ of Habeas Corpus?

Generally, the person who is an illegal detainee files the writ of habeas corpus. To begin the writ process for filing a petition of Habeas Corpus, one can file it and issue it against any public authority or any particular individual. However, in certain cases, the court may allow other people to file a writ of habeas corpus on behalf of the detained person, who is their friend or relative.


No comments:

Post a Comment

Equality before law

  Equality before law “The state shall not deny to any person equality before the law. Meaning of right to equality This means that every pe...