The Constitution outlines citizens' rights to social, economic, and political justice as well as assurances them equal protection under the law. There are no restrictions on who can file an appeal with a judicial body. The Constitution also gives people the freedom to exercise their rights as long as they follow the law and recognised legal procedures. This is where the concept of writ enters the picture. Let's go deep!
What Is A Writ?
A writ can be compared to a written order issued by a court with more power. It is given to a court with a lower jurisdiction or to an individual if any citizen’s fundamental rights are violated. A writ may be issued by the Indian Supreme Court in accordance with Article 32 of the Indian Constitution. The High Court also has this authority under Article 226. These writs are issued in opposition to any lower court or individual’s judgment in accordance with their jurisdiction. Both articles outline the type of Writ, the steps to be taken, and the requirements that the petitioner must meet in the event that any fundamental rights have been violated.
Why It Is Required?
A writ petition is typically filed when someone’s fundamental rights have been violated or they have been the victim of injustice. For the following reasons, it is essentially a corrective measure provided by the constitution against the nation’s body responsible for maintaining law and order:
- To assist people in defending their rights against judicial orders
- The legal system’s authorized higher authorities do not object to providing an alternative to the harmed in the event of an accusation
- to guarantee that justice is administered and not obstructed.
Who May Submit a Writ application?
The basic rule is that a person who is allegedly being held unlawfully may submit an application. However, in certain specific circumstances, anyone else—a friend or relative—can apply for a writ of habeas corpus on behalf of the person who is being held. It merely requests that the prisoner be brought before the court so that it can investigate the evidence and determine if the accused is being held legally or unlawfully. The possibility that the detainee will be held incommunicado is another reason why the prisoner shouldn’t use the Habeas Corpus. There are limitations to the use of habeas corpus.
Who Is Eligible to Apply for a Writ?
Generally speaking, it is permissible for someone who is allegedly being held unlawfully to submit an application. However, in some particular situations, anyone else—a friend or relative—can file a Habeas Corpus application on behalf of the person who is being held. The request merely asks that the prisoner be brought before the court so that it can review the situation and decide whether the accused is being held legally or unlawfully. The possibility of the detainee being held incommunicado is yet another reason why the prisoner should refrain from filing a Habeas Corpus. Certain limitations apply to habeas corpus. It is a procedural remedy, technically. It provides protection from any unlawful detention, but it does not always uphold other rights, such as the right to a fair trial.
Different Types of Writ
In the Indian Constitution, there are various types of writs.
Articles 32 and 226 of the Indian Constitution, including both, involve two distinct but linked provisions pertaining to the Writ jurisdiction with the Supreme Court and High Court. The constitutional remedy against the violation of fundamental rights is provided by the incorporation of Article 32. The remedy set forth in his article is only applicable to violations of fundamental rights.
Habeas Corpus Writ
It is regarded as the most significant document for individual liberty. In Latin, the phrase “Habeas Corpus” implies “Let us have the body.” When arrested, an individual may ask the court to issue this writ. Through such a petition, the court directs the detaining entity to appear in court with the arrested person so that the court can determine whether or not the arrestee was held legally. The court may issue commands for the person’s rollout if the investigation reveals that he or she was held against the law consultant. The Habeas Corpus protection prevents the arrestee from being held in unjustified or unsupported detention. Both person who was arrested and the person assisting the prisoner can seek the remedy. It is an English-developed system that many other countries have since adopted. It has been demonstrated throughout history to be a crucial legal tool for defending an individual’s freedom from capricious state action.
Writ of Mandamus
The Latin word for “we command” is called Mandamus. It is a directive from a higher court to a lower law enforcement agency or public authority to carry out an act that is within its remit. It is issued to ensure the fulfillment of civic obligations and to uphold private rights that the government holds. A writ is basically issued to a public official to perform a duty that one has thus far neglected to do. The public is liable for the public servants’ performance of their legal obligations. If the official or even the authority fails to compile one‘s duties, a writ of mandamus may well be imposed on their behalf warning him about his unfulfilled public duties and ordering him to fulfil the same.
A tribunal also may receive a mandamus to force it to carry out the duties it has refused to perform. It may be given in situations where a particular legal right is involved without the need for a specific means of enforcing that right.
The Certiorari Writ
Literally, the word “certiorari” means “certified.” The Supreme Court has the power to petition another higher authority for a critical review of a decision made by a lower tribunal or court by issuing a writ of certiorari. The Supreme Court issues the writ of certiorari to overturn an earlier decision made by a lower court. Only after the order or choice has been made can this writ be used. A quasi-judicial or judicial body may issue a writ of certiorari on the following grounds:
- When a lower court, authority, or tribunal acts improperly, in excess of its jurisdiction, or fails to work out it, this writ is issued to a body that needs to perform judicial or quasi-judicial functions to correct the jurisdiction
- The purpose of this writ is to correct a legal mistake that is clear from the record and caveat
- Certiorari may also be granted when the natural justice principle is disregarded.
The Prohibition Writ
This writ, which is also known as “Stay Order,” has the meaning of prohibiting or denying. This writ is issued when a lower court or other authority attempts to overstep its bounds or exercise its powers improperly. Such a writ is issued by the Supreme Court to prevent a lower court or tribunal from carrying out an action that is not within its scope.
The Quo-Warranto Writ
Literally, it asks ‘by what justifications?’ It is given to prevent someone from exercising their right to hold a public office. It is released with the intention of preventing anyone from usurping any public office or taking it over illegally. To exercise public office even though not legally permitted is the allegation.
*A writ or legal action that demonstrates the specific person’s detention under what authority is known as a “quo warranto.
How do the Writ Jurisdiction differ between the Supreme Court and the High Court?
The Indian Constitution empowers the Supreme Court and High Court to issue the writ under different articles such as Article 32 and Article 226. There are a few differences in the writ jurisdiction between the two courts. They are:
The Supreme Court issues a writ to enforce fundamental rights. Whereas, the high court issues a writ to enforce the fundamental rights and also for any other purposes.
The Supreme Court issue a writ against any person or government in the Indian territorial jurisdiction. Whereas, the high court can issue the writ only against the person or the government within its jurisdiction. The high court can issue a writ only outside the jurisdiction if the cause of action has arisen from inside of the jurisdiction.
The Supreme Court cannot refuse to execute its power in issuing a writ. Whereas, the high court can refuse the power to issue a writ.
A writ Caveat petition may be filed before any High Court, in whole or in part, whose jurisdiction the cause of action arises, in accordance with Article 226. Whether or not the authority the writ petition is filed against is located within the territory is irrelevant. In comparison to the Supreme Court, the High Court has much more authority to issue writs. Do you need to know the specifics of how it was filed? It is always preferable to seek the advice of the best legal service provider or best attorneys, who will assist you in filing them without losing any significant points. The top legal service provider in India, Vakilsearch, will assist you with all of the legal paperwork you require!
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