By- Adv Manisha Singh

Writ means a formal written Command in the name of the court which directs you to act according to the law. A writ of the formal order by a higher court to a Lower court or directing any order, directions and warrant so on, issued by the Hon’ble Supreme court and High court.

In the Indian Legal system, writ petitions can be filed before the High Court for infringement of fundamental and other legal rights under Article 226 and before Supreme Court under Article 32 of the Indian Constitution for infringement of fundamental rights.

TYPES OF THE WRITS

The following types of writs can be issued by the Supreme Court or by the High court-

• Writ of Mandamus.
• Writ of Prohibition.
• Writ of Certiorari.
• Writ of Quo Warranto.
• Writ of Habeas Corpus.

Writ of Mandamus- ‘Mandamus is a Latin word which means ‘We Command’ A writ of the mandamus is issued by a higher court to the lower court, tribunal, Forum or any other public authority to do an act in which such court is bound to perform. If any public authority is not performing his or her duty, the court can order it.

To File a mandamus writ petition

This writ is available against any public/quasi-public/ administrative authority. The writ would issue against a private individual if the private in­dividual was acting in collusion with, or the transaction had been merely a colorable one and had been entered into between an authority and an individual.

It cannot be issued against the President and the Governor of a State in their personal capacities but can be issued against the Government, Constitution expressly provides that appropriate wits may be issued against the Government of India and the Government of a State

In the case of Mani shobhraj Jain v/s State of Haryana (1977 (1) SCC 486)

The court held that there are following requirements to the writ of mandamus-

1. All the legal right should be enforceable by the court.
2. Should be in the Public Nature.
3. Enforcement of such right always imposes a responsibility on the person, any public authority and corporation or government.

Writ of Prohibition- Writ petition of Prohibition is issued by the Supreme Court and High Court. This writ is issued to stop or put a stay on the power exercised by the authority which is known as the stay order. In the Indian legal system, this writ asks lower court or body to stop acting beyond its powers including such as magistrates and commissions for inactivity or activity in access of power in the matter of concern.

In the Case of Govind Menon v/s UOI (AIR 1967 SC 1893), The Supreme Court held that there are following conditions which are laid down by the court when the writ of prohibition is issued-

1. When there is an absence of jurisdiction
2. When there is an excess and acting beyond its powers.

Writ of Certiorari- The Word Certiorari means ‘to be Certified’, the writ of the certiorari is issued by Supreme court or High Court to a lower court or any other body to transfer a particular matter to the higher court than itself. This writ is issued when there is an error of jurisdiction or law is believed to be committed. Writ of the certiorari is called curative writ.

In the Case of State of U.P v/s Mohammed Noor (AIR 1958 SC 86), The Supreme Court held that the writ of Certiorari is issued mainly to reform the jurisdiction when there is an error of jurisdiction by the lower court or tribunal.

Writ of Quo Warranto- Writ of Quo Warranto means ‘by What authority’ or ‘on whose Authority someone is holding authority’. This writ is issued to inquire about the legality of claim any person or any authority to act in public offices or it does include any private institution/offices.

To File a Quo Warranto writ petition

This writ is filed only if there is a violation of the fundamental rights, generally, you can issue this writ petition against the state or any government agency.

In the Case of University of Mysore v/s Govind Rao, The Court held that there are following requirement for the petition of quo- warranto –

1. A disputed post should be the Public post.
2. The post should be held by a person when there is no Legal authority.
3. The office should be a substantive one and not employees of a servant at his will or pleasure of another person.

Writ of Habeas Corpus- Habeas Corpus means, “ to have the body” and the object of the Habeas Corpus is to provide an effective remedy against illegal detained. This writ is issued by the Higher courts to find out if a person has been illegally detained, if yes, the court can order for his release.

To File a Habeas Corpus writ petition-

The writ of Habeas Corpus can be filled by any person on behalf of the Detained person and the arrested person.

In the case ADM Jabalpur v/s Shivakant Shukla, It was observed by the court that he Habeas corpus is a process for the securing the liberty of the person who is illegally detained and providing an effective means of immediate relief from the unjustifiable detention whether in the prison or private custody.

PROCEDURE-(For both Criminal and civil)

Steps-

1. Drafting of the Writ Petition
2. After Drafting, the Petition is filled at the filling counter of the court.
3. On the date of hearing, the Court will admit the petition and send a notice to the other party.
4. Another date will be fixed for hearing the other party.
5. Relief will be granted accordingly.

Author:

eStartIndia Team