Skip to main content

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.
Labels:

Comments

Post a Comment

Popular posts from this blog

Section 58B of The Advocates Act - Special provision relating to certain disciplinary proceedings

 Section 58B The Advocates Act Description (1) As from the 1st day of September, 1963, every proceeding in respect of any disciplinary matter in relation to an existing advocate of a High Court shall, save as provided in the first proviso to sub-section (2), be disposed of by the State Bar Council in relation to that High Court, as if the existing advocate had been enrolled as an advocate on its roll. (2) If immediately before the said date, there is any proceeding in respect of any disciplinary matter in relation to an existing advocate pending before any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), such proceeding shall stand transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the corresponding Bar Council under clause (c) of sub-section (1) of section 56: Provided that where in respect of any such proceeding the High Court has received the finding of a Tribunal constituted under section 11 of the Indian B
Post a Comment
Read more

Case Laws related to Defamation in favour of ClaimantCase Laws related to Defamation in favour of Claimant. TOLLEY Vs, J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement. Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be asked to resign from his respective club. Furthermore, there was evidence that the possible adverse effects of the caricature on the claimant’s reputation were brought to the defendants’ attention. The trial judge found that the caricature could have a defamatory meaning. The jury then found in favor of the claimant. Held The House of Lords held that in the circumstances of this case – as explained by the facts – the caricature was capable of constituting defamation. In other words, the publication could have the meaning alleged by the claimant. The Lords also ordered a new trial limited to the assessment of damages. NEWSTEAD V LANDON EXPRESS NEWSPAPER LTD, (1939) Facts: A newspaper published a defamatory article about Harold Newstead. However, another person with this name brought an action in libel. He claimed that the article had been misunderstood as leading to him. The defendant newspaper recognised that they published the article. Also, they denied that they had the intention of being defamatory of him. Consequently, the claimant argued that the newspaper was under a duty. The duty was to give a clear and complete description of the correct person. Moreover, the claimant argued that the defendants were in breach of the duty. Issues: The issue in Newstead v London Express Newspaper, was if the reasonable persons would have understood the words complained of to refer to the plaintiff. Held: The Court of Appeal stated that in accordance with the current law on libel, liability for libel does not depend on the intention of the defamer; but on the fact of the defamation. Accordingly, a reasonable man, in this case a newspaper publisher, must be aware of the possibility of individuals with the same name and must assume that the words published will be read by a reasonable man with reasonable care.

  Case Laws related to Defamation in favour of Claimant.  TOLLEY  Vs,  J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement.   Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be aske
1 comment
Read more

Rules as to delivery of goods

                             Rules as to delivery of goods Section 2(2) of Sale of Goods Act defines ‘delivery’ as a ‘voluntary transfer of possession from one person to another.’ Thus, if the transfer of goods is not voluntary and is taken by theft, by fraud, or by force, then there is no ‘delivery. Moreover, the ‘delivery’ should have the effect of putting the goods in possession of the buyer. The essence of the delivery is a voluntary transfer of possession of goods from one person to another. There is no delivery of goods where they are obtained at pistol point or theft. 1. Mode of Delivery: According to Section 33, delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf. Delivery of goods may be actual, symbolic or constructive. 2. Expenses of Delivery: According to Section 36(5), unless otherwise agree
Post a Comment
Read more