Writ Petition/PIL

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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.

Type of Writs in the Constitution of India

The Indian Constitution gives the power to the Supreme Court, where it issue orders in 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 types of writ petitions 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 illegally On 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.

2. Writ of Mandamus

Mandamus is a Latin word meaning ‘we command’. Mandamus is a court writ whereby the higher courts orders the lower court, tribunal, forum or any other public authority to do any act which otherwise also falls under the purview of their duty.

"One issues the writ of mandamus when a public officer fails to perform his/her official duty or something which forms part of his/her official duty. Writ of Mandamus is a matter of grace and not a matter of right. But it is the discretionary power of the court to allow the writ of mandamus. This means - if the court thinks that there may have been a failure in performing the duty by the lower court or public authority, then the court may allow the writ of mandamus".

The essential requirements of the Mandamus writ petition for the court were described by the Supreme Court in the case of MANI SHOBHREJ JAIN vs STATE OF HARYANA (1977 (1) SCC 486)[2].

3. Writ of Prohibition

The writ of prohibition is a court petition issued either by the Supreme Court or High Court to prohibit to do or not to do any act.

"When the lower courts including the tribunals, forums or any public authority (magistrate, commissions or any other judicial officers) do something which exceeds their jurisdiction, the Supreme Court or High Court prohibits them by issuing the writ of prohibition."

Prohibition writ for the court is issued to stop or put a stay on the power exercised by the authority and is commonly known as stay order. In India, a writ petition is issued against the proceedings going on in lower courts and in such proceeding, the lower court is exceeding its powers. Once the writ of prohibition is allowed either by the Supreme Court or in High Court the proceedings of the lower court come to an end.

4. Writ of Certiorari

In the literal sense, the word certiorari means, ‘to be certified’. One can issue the writ of certiorari by the Apex court for transfer of the matter to it or any superior authority for proper consideration. You can issue the writ of certiorari against the inferior court or tribunal. (eg: a high court writ petition can be issued against lower district courts)

In simple terms, one can issue the writ of certiorari when the subordinate courts or the quasi-judicial bodies act in:

The absence of their jurisdiction, or Exceeds their jurisdiction or Fails to make use of their jurisdiction.

In the case of STATE OF UP vs MOHAMMED NOOR (AIR 1958 SC 816)[4], the supreme court stated that one can issue the writ of certiorari. To mainly reform the jurisdiction-related mistakes of the inferior court or tribunal.

Subsequently, in another judgment of HARI VISHNU KAMATH vs. AHMED ISHAQ (AIR 1995 SC 233)[5]. The Supreme Court held that one can only issue the writ of certiorari to correct the errors apparent on the face of records, but not for the correction of an error of fact.

5. Writ of Quo-Warranto

Writ of quo warranto means a writ that you can be issued to restrain a person from acting in the capacity of public office to which he/she does not have the entitlement. Here, the term Quo-Warranto means, ‘by what authority’ or, ‘on whose authority is one holding a public office’.

• A disputed post must be the public post
• The post should be held by the person without any legal authority
• 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.

What is a PIL? (Public Interest Litigation)

PIL has not been defined in any Indian statute. However, Courts have interpreted and defined PIL. The Hon’ble Supreme Court of India has, in the case of Janata Dal v. H.S.Chaudhary, [(AIR 1993 SC 892) (see here)], held that lexically, the expression ‘PIL’ means a legal action started in a court of law for the enforcement of public/general interest where the public or a particular class of the public some interest (including pecuniary interest) that affects their legal rights or liabilities.

PILs are considered to be the most effective as well as the most commonly used judicial tool to safeguard the environment due to their many advantages including but not limited to speedy results, nominal court fees, relaxed procedural rules and the wide variety of investigative techniques available to courts like special committees. new legal draft Who can file a PIL?

Any individual or organisation can file a PIL either in his/her/their own standing i.e. to protect or enforce a right owed to him/her/them by the government or on behalf of a section of society who is disadvantaged or oppressed and is not able to enforce their own rights.