A petition essentially refers to a formal written request, including different types of petitions, signed by an individual or in unison to appeal to an authority concerning a particular cause. However, the legal framework and flow of petitions often change with the cause it is being appealed for. To make the process of appeal easier for the masses, the Indian constitution has laid down 5 types of writ petitions, the process of filing, and the course of an appeal.
In this article, we are going to briefly discuss What is Writ Petition? the elements of these writ petitions, and the process that surrounds them.
Writ Petition: Definition Under Indian Legal System
The term writ effectively means a legal document that is created to issue an order to a person or an entity to perform or cease to act.
A writ Petition is a higher court's formally written application or document filed before the lower court to restrain them from a particular writ means doing something, especially when someone is a victim of injustice and fundamental rights are violated.
Depending on the nature, a writ petition enables an individual to question the authority against an unfair detainment. Additionally, writs like the mandamus are generally issued by a judge or court, to an individual or an entity that is bound by the judicial jurisdiction.
Purpose and Significance of Filing a Writ Petition
The modern-day writ petitions are used to give power to legal authorities to direct lower courts and lower courts to an entity, government, or an individual, to perform a specific action.
Purpose of Filing a Writ Petition:
- To enforce fundamental rights
- To seek judicial review of administrative action
Significance of Filing a Writ Petition:
- Quick and effective remedy
- Court has the power to issue directions, orders, or writs to enforce rights
- Provides a means to seek justice in case of violation of rights
Types of Writ Petitions
Broadly, there are five types of writ petitions in India, as per Articles 32 and 226 of the Indian Constitution. Let's understand these petitions one by one:
A writ of habeas corpus is a legal order that requires a person who is being detained or imprisoned to be brought before a court or judge. The purpose of the writ is to ensure that a person's detention is lawful and to provide a means of redress if it is not. Example: If an individual is arrested and detained without proper cause, a writ of habeas corpus may be filed to secure their release.
Mandamus is a writ that orders a public authority or government official to perform a specific act that the law requires them to perform. It is often used to force a public official to perform a duty that they have neglected or refused to perform. Example: If a government office fails to process a citizen's application for a government service despite repeated reminders, a writ of mandamus may be filed to force the office to perform its duty.
Prohibition is a writ that prohibits a lower court or public authority from exceeding its jurisdiction or taking action outside the scope of its powers. It is often used to prevent lower courts or government officials from acting unlawfully or unjustly. Example: If a lower court issues an order that is beyond its jurisdiction or violates the rights of the parties involved, a writ of prohibition may be filed to prevent the lower court from taking any further action.
Certiorari is a writ that is used to bring a case from a lower court or tribunal to a higher court for review. It is often used to challenge the jurisdiction or procedures of the lower court or to correct errors made by the lower court. Example: If a lower court makes a decision that is based on incorrect facts or law, a writ of certiorari may be filed to bring the case to a higher court for review.
Quo warranto is a writ that is used to challenge the right of a person to hold a public office or to exercise a public franchise. It is often used to ensure that public offices are occupied by persons who are legally qualified to hold them. Example: If a person is appointed to a public office despite not meeting the eligibility criteria, a writ of quo warranto may be filed to challenge their right to hold the office.
Eligibility For filing a Writ Petition in India:
Here are some details about the eligibility, grounds, and limitation for filing a writ petition:
Who Can File for Write Petition?
- A writ petition can be filed by any person who claims to be the aggrieved party, including individuals, organizations, and public interest groups.
- A writ petition can also be filed by a person who is authorized to act on behalf of an aggrieved party, such as a lawyer.
Grounds for Filing a Writ Petition:
- Violation of fundamental rights guaranteed by the Constitution
- Injustice caused by administrative action
- Non-compliance with the principles of natural justice
- Excess of jurisdiction by a lower court or public authority
- Violation of legal rights or obligations
Limitations on Filing a Writ Petition:
- Writ petitions can only be filed in the High Court or the Supreme Court of India
- The petition must be filed within a reasonable time of the violation or injustice taking place
- The aggrieved party must have exhausted all other available remedies before filing a writ petition
- The writ petition must be filed by the rules and procedures established by the court
- The court may refuse to entertain a writ petition if it is frivolous, vexatious, or lacks merit.
How to File Writ Petitions in Court?
Before detailing the procedure to file the writ petition, it is significant to know who can file a writ petition in India.
Any individual whose fundamental rights as guaranteed under Part-III of the Indian Constitution is infringed or violated, can file a writ petition in a court of law. Just like the eligibility criteria, the procedure to file a writ petition is also elementary and uncomplicated. Articles 32 and 226 of the Indian Constitution give us a right to approach the Supreme Court and the High Court respectively if any of our fundamental rights are infringed.
Filing and Processing of Writ Petitions in India
Indian judiciary allows an individual to file a writ petition in offline as well as online mode.
How to File a Writ Petition:
- Determine the appropriate court: Writ petitions can be filed in the High Court or the Supreme Court of India, depending on the nature of the case and the relief sought.
- Prepare the writ petition: The petition must be in the form of a written document that sets out the grounds for the petition and the relief sought.
- Collect supporting documents: Prepare an affidavit in support of the petition and collect any other supporting documents, such as copies of relevant laws, regulations, or orders.
- File the petition: File the petition, the affidavit, and the supporting documents with the appropriate court by the rules and procedures established by the court.
- Pay the filing fee: Pay the prescribed filing fee as required by the court.
- Serve the respondent: Serve a copy of the petition on the respondent, who is the party against whom the petition is filed.
- Admissibility: The court may admit the petition for hearing if it is satisfied that there are sufficient grounds for granting relief.
- Hearing: The court will hear the petition and decide whether to grant the relief sought.
Online Process of Filing a Writ Petition
- Go to the official website of the Supreme Court of India and click on the E-Filing option.
- Post clicking the option, you can opt for the New Registration option and can complete all the registration processes.
- Click on the Login option and a menu will appear, the applicant will require to fill in all the details and an option of New E-filing will be shown on the screen.
- Post filing all the details on the form and completing the payment, an application number is allotted to the applicant.
Role of the High Court and Supreme Court in Writ Petitions:
- High Court: A High Court has the power to issue writs for the enforcement of fundamental rights and other purposes under Article 226 of the Indian Constitution. High Courts have the power to issue writs against the decisions of lower courts, tribunals, and administrative bodies within their jurisdiction.
- Supreme Court: The Supreme Court of India has the power to issue writs under Article 32 of the Constitution for the enforcement of fundamental rights. It acts as a final court of appeal and has the power to issue writs in cases where there is a violation of fundamental rights or where the matter involves a substantial question of law.
Time Frame for Processing a Writ Petition:
It depends on several factors such as the nature and complexity of the case, the workload of the court, and the availability of the necessary resources. It can range from a few weeks to several months or even years.
In India, the Supreme Court and High Courts have a large number of pending cases, and the time frame for disposing of a writ petition can be substantial. However, in cases of urgency or where the matter involves fundamental rights, the court may prioritize the case and hear it on an expedited basis.
Adjudication of Writ Petitions in India:
Adjudication in reference to writ petitions is the process of hearing and deciding on a writ petition filed in the Indian courts.
How Writ Petitions Are Heard and Decided?
- Hearing: Writ petitions are heard by a single judge or a bench of judges, depending on the nature and complexity of the case. The hearing is conducted in a formal courtroom setting and both the petitioner and the respondent are allowed to present their arguments.
- Evidence: Evidence may be presented in the form of written submissions, oral arguments, and documentary evidence. The court may also call for additional information or clarification from the parties.
- Judgment: After hearing the arguments and considering the evidence, the court will pass judgment on the writ petition. The judgment may take the form of an order or a detailed written judgment.
Role of Judges and Advocates in Writ Petitions:
- Judges: The role of the judges is to consider the evidence and arguments presented in the writ petition and make a fair and impartial decision based on the law and facts of the case.
- Advocates: The role of the advocates is to represent the petitioner or respondent and present their case most effectively. They are responsible for drafting the writ petition, presenting evidence, making oral arguments, and advising their client on the merits of their case.
Grounds for Dismissal or Rejection of a Writ Petition:
- Lack of jurisdiction: The writ petition may be dismissed if the court lacks the jurisdiction to hear the case.
- Maintainability: The writ petition may be dismissed if it is not maintainable in law, such as when it is filed after an unreasonable delay or when alternative remedies are available.
- Merits of the case: The writ petition may be rejected on the merits of the case if it lacks sufficient merit or if the court finds that the rights of the petitioner have not been violated.
- Laches: The writ petition may be dismissed if it is barred by the principle of laches, which is a legal doctrine that prevents a person from claiming an unreasonable delay.
Charges of filing various writ petitions
If you want to want a writ petition in the Supreme Court of India, a court fee of Rs. 500 per petitioner has to be paid except for habeas corpus, and Rs. 120 is charged on the filing of the application. However, if you are filing a writ petition in a criminal matter, then no court fees are charged to the petitioner.
For, the High Courts of India, the court fees vary from state to state and can be found on the website of the respective courts.
FAQs for Filing Writ Petition in India:
1. Can a writ petition be filed in the district courts?
No, a writ petition can only be filed in the High Court and the Supreme Court of India as per Articles 32 and 226 of the Indian Constitution.
2. Who can file a writ petition?
Under Article 32 of the Constitution of India, any person can file a Writ Petition in the Court of India seeking to safeguard their fundamental Rights.
3. How do I file a writ petition?
A writ petition can be filed in the relevant High Court or Supreme Court. It must contain the facts of the case, the grounds on which relief is sought, and the relief sought.
4. How long does it take for a writ petition to be heard?
The time frame for a writ petition to be heard can range from a few weeks to several months or even years, depending on the nature and complexity of the case, the workload of the court, and the availability of the necessary resources.
5. What are the costs associated with filing a writ petition?
The costs associated with filing a writ petition can vary and may include filing fees, court fees, and fees for engaging a lawyer.
6. What is the difference between a writ petition and a regular suit?
A writ petition is a specialized legal remedy for the enforcement of fundamental rights and for the redress of grievances, while a regular suit is a more general legal remedy for the resolution of disputes between parties.
7. Can a writ petition be withdrawn?
A writ petition may be withdrawn by the petitioner with the permission of the court.
8. What happens if a writ petition is granted?
If a writ petition is granted, the court will issue a writ directing the respondent to take a specified action or refrain from taking a specified action.
9. Are writ petitions effective in resolving disputes?
Writ petitions can be effective in resolving disputes, especially when they involve the enforcement of fundamental rights.
10. Are writ petitions the only remedy in case of violation of rights?
Writ petitions are not the only remedy in case of violation of rights and other remedies, such as regular suits, may also be available.
11. Can a writ petition be filed against a private individual or organization?
A writ petition may be filed against a private individual or organization in certain circumstances, such as when the individual or organization has violated the fundamental rights of the petitioner.
12. Is there a time limit to file a writ petition?
There is a time limit for filing a writ petition and it is generally advisable to file the petition as soon as possible after the cause of action arises.
13. Are there any pre-conditions for filing a writ petition?
The pre-conditions for filing a writ petition can vary depending on the jurisdiction and the nature of the case. In general, the petitioner must have a sufficient interest in the matter and must have exhausted other available remedies.
14. Is it necessary to have a lawyer file a writ petition?
It is not necessary, but hiring a lawyer specifically for a writ petition can be helpful in presenting a strong case and navigating the legal process effectively.
15. Can a writ petition be filed against the decision of the High Court?
A writ petition may be filed against the decision of the High Court in certain circumstances, such as when the decision violates the fundamental rights of the petitioner.
Author Bio: Adv. Vijay Tangri
Vijay Tangri graduated in law in 1994 and joined the LLM program focused on corporate finance and international trade at Northwestern University School of Law Chicago, he began his career in 1995 as a negotiator with a law firm in Chicago and then as part of an investment banking firm in Chicago. Thereafter, from 1999, while being associated with one of the top Senior Advocates of the Supreme Court of India and later with a leading law firm in New Delhi, he has also worked for MNCs such as Accenture, Motorola, and Huawei. And as a litigating lawyer in the courts of India. He has also successfully handled matrimonial cases for over 20 years.