Access to Courts through Writ Petition – Human & Constitutional Rights 

Author: Syed Shams Abbas, 5th Year, BALLB, LLC                                                                             

A writ petition is filed by a person for the enforcement of a right in the High Court or the Supreme Court. It is a special petition in which the higher court would order the infringing authority/lower court/government departments etc. or an individual person to either perform a certain task or cease the operation of an act which is unlawful. Writ Petition can be filed  under Article 226 in the High Courts and Article 32 in the Supreme Courts. The writs of the High Court are superior and wider than the writs of the Supreme Court.

Article 226 of the Constitution of India

Power of High Courts to issue certain writs:

1. Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.
2. The power conferred by clause ( 1 ) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories.
3. Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause ( 1 ), without
   1. furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and
   2. giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose favour such order has been made or the counsel of such party, the High Court shall dispose of the application within a period of two weeks from the date on which it is received or from the date on which the copy of such application is so furnished, whichever is later, or where the High Court is closed on the last day of that period, before the expiry of the next day afterwards on which the High Court is open; and if the application is not so disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the expiry of the aid next day, stand vacated 

4. The power conferred on a High Court by this article shall not be in derogation of the power conferred on the Supreme court by clause ( 2 ) of Article 32

 Article 32 of the Constitution of India

Remedies for enforcement of rights conferred by this Part:

1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
2. The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
3. Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 ).
4. The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

 

Other Writs

1. Injunction.
2. Claim for damages.

 

‘Writ’ is eminently designed by the makers of the Constitution, and in the same way it is developed very widely and efficiently by the courts in India. The Constitution broadly provides for five kinds of “prerogative” writs, namely, Habeas Corpus, Certiorari, Mandamus, Quo Warranto and Prohibition.

Basic details of which are as follows:

• The writ of Prohibitionis issued by a higher court to a lower court prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. Thus, the higher court transfers the case to itself.

• The writ of Habeas Corpusis issued to a detaining authority, ordering the detainer to produce the detained person in the issuing court, along with the cause of his or her detention. If the detention is found to be illegal, the court issues an order to set the person free.

• The writ of Certiorariis issued to a lower court directing that the record of a case be sent up for review, together with all supporting files, evidence and documents, usually with the intention of overruling the judgement of the lower court. It is one of the mechanisms by which the fundamental rights of the citizens are upheld.

• The writ of Mandamusis issued to a subordinate court, an officer of government, or a corporation or other institution commanding the performance of certain acts or duties.

• The writ of Quo Warrantois issued against a person who claims or usurps a public office. Through this writ the court inquires ‘by what authority’ the person supports his or her claim.

A Writ Petition is thus a binding order of the Higher courts over the lower courts or authorities or individual persons to perform or to abstrain from performing any task which will cause harm to the fundamental or constitutional right of a person or society at large.

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Disclaimer:

This Article was prepared or accomplished by Syed Shams Abbas in his personal capacity. The opinions expressed in this article are the author’s own and do not reflect the view of the LawOF.in

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