How To File A Writ Petition In High Court Or Supreme Court?

Published on 13 Mar 2020 by Shivi

The Indian Constitution provides for certain rights to every citizen in case their fundamental rights are violated. One such right is the option to file a writ petition when the fundamental rights of a citizen are violated by any state or government agency. This blog lays down the different kinds of writs in India and how to file a writ petition in the high court or Supreme Court.

What Is A Writ Petition?

A writ petition can be filed by any citizen of India with a State High Court or Supreme Court in case their fundamental rights are affected or violated by the actions of any state or government authority or body. The court issues a writ in the form of formal written order, warrant or direction to such authority or body to implement the correct remedy and rectify such violation of fundamental rights. 

A writ petition can be filed under Article 226 with a High Court and Article 32 with the Supreme Court. The process is mostly the same for filing a writ in the high court or Supreme Court, with certain exceptions as the jurisdiction of the High Court is wider and extends to constitutional rights as well.

Types of Writs In India

There are five types of writs in India as provided under Article 226 and 32 of the Indian Constitution. Any person whose fundamental rights or constitutional rights are violated must hire a lawyer for writ petition in India to know the kind of writ applicable to their matter.

Habeas Corpus

Habeas corpus or “let us have the body” is a kind of writ filed to determine whether the person is illegally detained or not. If a person is found to be in illegal detention by the police, the court issues a writ for the release. A writ of habeas corpus can be filed in the following cases:

  • When a person is in custody but is not brought before the Magistrate within 24 hours of the arrest.

  • When the person who has been arrested is innocent and has not violated any law.

  • The arrest was made by unconstitutional means.

  • The person is detained for mala fide reasons with the intention to harm the person.

The person who has been detained can file a habeas corpus writ petition, however, when such person is unable to do the same, a family member, relative or friend can file a writ petition in high court. 

Mandamus

Mandamus or “we command” is issued when an order needs to be assigned to a lower court or a public officer that has failed to perform an official duty that should have been performed in the first place. A writ petition for mandamus can be filed against the following:

  • A President/governor of the state

  • Current Chief Justice

  • An individual/private institution

  • Private contractor

Under this, a person can file a mandamus writ petition against even the president of the country, if he/she thinks that the president was unable to perform the official duties. Consulting top lawyers for writ petition in India is important before proceeding with filing a writ of mandamus.

Prohibition

Prohibition means “to prohibit”. It is filed by a higher court to prohibit the lower court if it is deemed that the task performed by the lower court is over and above its rights. A writ of prohibition can be filed either when there is an excess of jurisdiction or when there is an absence of jurisdiction.

Certiorari

Certiorari means ‘to be certified’. This kind of writ can be filed by the Supreme Court to a lower court or Tribunal to order a transfer of the matter to a High Court or itself. A person can only file a writ of certiorari when the following conditions are met:

  1. There must be a court, tribunal or an officer that has the legal authority to determine the question with a duty to act judicially.

  2. The court, tribunal or officer in question must have acted in excess of or in absence of or in excess of the judicial authority vested by law.

  3. The order passed could be against the principles of natural justice. Or it could contain an error of judgment in appreciating the facts of the case

ALSO READ: How To File A PIL In India| Public Interest Litigation Procedure

Quo Warranto

Quo-warranto means ‘by what authority’ or ‘on whose authority is one holding a public office’. This writ is issued against a government official or public post to challenge a person holding a post in the office. This kind of writ can be filed when the following conditions are met: 

  1. The person, against whom the writ is filed must hold a public post.

  2. There must be a violation of law in holding this post

  3. The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.

How To File a Writ Petition? 

The petition for filing the right type of writ must be drafted with the help of the best lawyers for writ petition in India. The lawyer would then file the petition with the High Court or Supreme Court, as applicable.

Once the petition is filed, a date of hearing would be set. The court, on the hearing date, would either accept or reject the petition, and in case the petition is accepted, the court would issue a notice to the other party regarding the same. Another date of hearing would be set for both the parties to appear before the court and the court would grant relief to the applicant after considering all facts and circumstances.

The process to file a writ petition in high court is fairly simple, but it is important to establish a valid case and file the correct writ with the court to ensure justice. Legistify can connect you with top lawyers in India. Call us at 8468833013 or send us an email at [email protected]


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