Writ
There is no statutory or constitutional definition of the term “writ petition”. The Constitution merely confers the power to issue writs, without defining the procedural form of such petitions. The expression “writ petition” derives its meaning from judicial practice and procedural rules framed by constitutional courts rather than from any legislative definition.
Official definition of a writ
A writ petition is an application by a petitioner where prayer is made for the issuance of a writ for the redress of his grievances. The Constitution of India, under Articles 32 and 226 confers writ jurisdiction on Supreme Court and High Courts, respectively for enforcement/protection of the fundamental rights of an Individual. A writ petition contains averments or statements sworn, in form of an affidavit.
Legal Provisions
Writ Petition in the High Courts: Article 226 empowers the High Courts to issue certain writs. Article 226 gives discretionary power to the High courts to issue directions, orders, and writs including the writs in nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari. Article 226 is invoked not only for fundamental rights but also for a violation of other rights.
Writ Petition in the Supreme Court: Article 32(2) gives the Supreme Court power to issue writs, orders or directions. It states that the Supreme court can issue 5 types of writs habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for the enforcement of any fundamental rights given under Part III of the constitution. The Power to issue writs is the original jurisdiction of the court. Further, Article 139 empowers the Parliament to confer by law additional power on the Supreme Court to issue directions, orders or writs for purposes other than the enforcement of fundamental rights.
The scope of Article 226 is much wider than Article 32. Article 226 not only gives the power to issue direction, orders or writs not enforce fundamental rights but also for the enforcement of other rights too. Article 226 empowers the High court to issue directions, orders or writs to any person, authority, government, or public officials. Article 226 also talks about the interim order for writs and also states the mechanism of how interim orders will be disposed of by the High courts.
Case Law
Nature of Disputes Maintainable as Writ Petitions
Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others v. V.R. Rudani and Others
Writ jurisdiction was originally confined to public law disputes involving the State or its instrumentalities. In Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust and Others v. V.R. Rudani and Others, the Court expanded this scope by holding that writs may issue against private bodies discharging public duties, even if they do not fall within Article 12.[1]
However, in Binny Limited and Another v. V. Sadasivan and Others, the Court limited this expansion by holding that writs against private bodies are confined to enforcement of public duties and do not extend to purely private contractual disputes.[2]
Writ Petitions and the Rule of Alternative Statutory Remedy
Thansingh Nathmal v. Superintendent of Taxes, Dhubri and Others
The Supreme Court has consistently held that writ jurisdiction should ordinarily not be exercised where an efficacious alternative statutory remedy exists, as stated in Thansingh Nathmal v. Superintendent of Taxes, Dhubri and Others. This rule was characterised as a self-imposed restraint to prevent bypassing statutory forums.[3]
In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai and Others, the Court clarified that the alternative remedy rule is not absolute, and writ petitions remain maintainable in cases of violation of fundamental rights, breach of natural justice, lack of jurisdiction, or challenge to statutory vires.[4]
Writ as an Alternative Remedy Where No Statutory Remedy Exists
Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Limited
Where a statute provides no appellate or remedial mechanism, the Supreme Court has recognised writ jurisdiction as a necessary constitutional safeguard. In Assistant Collector of Central Excise, Chandan Nagar, West Bengal v. Dunlop India Limited, the Court observed that absence of a statutory remedy strengthens the case for writ intervention.[5]
This position was reaffirmed in Harbanslal Sahnia and Another v. Indian Oil Corporation Limited and Others, where the Court held that writ jurisdiction may be exercised to prevent injustice, particularly where the action complained of is arbitrary and no efficacious alternative remedy exists.[6]
Jurisdictional Errors and Patent Illegality
Calcutta Discount Company Limited v. Income Tax Officer, Companies District I, Calcutta and Another
The Court has consistently held that the existence of an alternative remedy does not bar writ jurisdiction where the authority acts without jurisdiction. In Calcutta Discount Company Limited v. Income Tax Officer, Companies District I, Calcutta and Another, writ jurisdiction was held maintainable where jurisdiction was assumed on an erroneous interpretation of law.[7]
This principle was reiterated in Radha Krishan Industries v. State of Himachal Pradesh and Others, where the Court clarified that jurisdictional errors and manifest illegality fall squarely within writ review, notwithstanding statutory remedies.[8]
Contractual and Commercial Disputes Involving the State
ABL International Limited and Another v. Export Credit Guarantee Corporation of India Limited and Others
In ABL International Limited and Another v. Export Credit Guarantee Corporation of India Limited and Others, the Supreme Court held that writ jurisdiction may be invoked in contractual matters involving the State where the action is arbitrary or violative of Article 14. This marked a departure from a strict exclusion of contractual disputes from writ review.[9]
However, in Joshi Technologies International Inc. v. Union of India and Others, the Court narrowed this approach, holding that writ petitions are not maintainable in purely contractual disputes unless a clear public law element or constitutional violation is established.[10]
Premature Writ Petitions and Show-Cause Notices
Union of India and Another v. Kunisetty Satyanarayana
The Supreme Court has generally discouraged interference at the show-cause stage, holding in Union of India and Another v. Kunisetty Satyanarayana that a mere show-cause notice does not ordinarily give rise to a cause of action.[11]
Nonetheless, in Siemens Limited v. State of Maharashtra and Others, the Court clarified that writ jurisdiction may be exercised where the notice itself is issued without authority or is ex facie arbitrary, thereby preventing abuse of administrative power.[12]
Types of writs
Habeas Corpus
The Writ of Habeas Corpus is issued by the Courts in those cases where a person is illegally detained. Habeas Corpus means ‘to have the body’ and it is one of the most effective remedies available to a person detained. By this Writ, the Court commands the person or authority who has detained or restrained another person to present such person before the Court. The Court requires the detaining person to provide the grounds on which the person has been detained and if he fails to provide a valid ground, the person who has been detained will be released by the Court immediately.
Usually, the detained person and his family members are allowed to file an application for habeas corpus but the court has also allowed such application by strangers if it is done in the public interest. The writ of Habeas Corpus also applies in case of an arrest made by the police when all the formalities and procedures which are required to be followed are not followed. For example – the requirement of presenting the arrested person before a magistrate or the officer in charge of the police station. [Section 56 of CrPC]
Mandamus
In the Writ of Mandamus, the superior courts order the Inferior Courts to do an act or to abstain from doing an act. This order can also be given to an Inferior Tribunal, Board, Corporation or any other type of administrative authority. In India, the Supreme Court is the apex court, therefore it has the power to issue the Writ of Mandamus even against the High Court even though the High Courts have also been provided with the power to issue such Writs under Article 226. This Writ is useful for enforcing the duty which is required to be done by law or by the office that a person holds.
Usually, the person whose right is infringed is allowed to apply for the Writs of Mandamus but after the Supreme Court adopted a liberal view and the advent of Public Interest Litigation in India, a public-spirited citizen can also apply for the issuing of the Writ of Mandamus on other people’s behalf. The essential ground for Mandamus is the absence of an effective alternative remedy which can be resorted to by the petitioner to enforce the duty of the authority. It is important to note that the writ is issued when an authority does not perform its mandatory duty. Mandatory duty is different from discretionary duty which does not fall under the purview of the writ of mandamus.
Certiorari
The writ of Certiorari is corrective in nature which means the purpose of this Writ is to correct an error which is apparent on the records. Certiorari is a Writ which is issued by a superior court to an inferior court. This can be issued when the superior court wants to decide a matter in the case itself or if there is an excess of jurisdiction by the inferior court. This Writ can also be issued when there is a fundamental error in the procedure followed by the inferior court or if there is a violation of the principles of natural justice. If the superior court finds out that there has been a violation of natural justice or a fundamental error in the procedure adopted, it can quash the order of that inferior court.
The Writ of Certiorari lies against those bodies which are judicial or quasi-judicial in nature. Thus, when anybody or a person is performing a judicial act, their acts can be subjected to the Writ of Certiorari. It also means that the scope of the application of this Writ is limited to only the judicial bodies or the bodies which perform judicial functions and it will not extend to the Central, State or Local Governments because their functions are administrative in nature and not judicial.
Prohibition
The Writ of Prohibition is an extraordinary remedy that a Higher Court issues to an inferior court or tribunal for stopping them from deciding a case because these courts do not have the jurisdiction. If the court or tribunals does not have jurisdiction and it still decides the case, it will be an invalid judgement because for an act to be legal it should have the sanction of law.
This Writ can be issued only when the proceedings are pending in the inferior court and not when an order has already been passed by that court. Thus, this Writ is a preemptive remedy which is exercised by the superior court to prevent the inferior court from acting outside its jurisdiction. Both the Writs Certiorari and Prohibition appear to be the same but there is one major difference between the two. In the Writ of Prohibition, the superior court issues the writ before the final order is passed by the inferior court and therefore this is a preventive remedy, while in the Writ of Certiorari, the superior court issues the Writ after the inferior court has made the final order. Thus the Writ of Certiorari is a corrective remedy by which the order of the inferior court is quashed.
Quo Warranto
The Writ of Quo Warranto is issued by the courts against a private person when he assumes an office on which he has no right. Quo Warranto literally means ‘by what authority’ and it is an effective measure to prevent people from taking over public offices.
International Experience
United States
The All Writs Act[13] is a United States federal statute, codified at 28 U.S.C. § 1651, which authorizes the United States federal courts to "issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law".
In legal proceedings a writ typically means a written directive from a court to someone to do something or not to do something. A request for a writ is called a “writ petition.”
Writs have historically been used for all kinds of things, including starting elections, calling legislators to their posts, and summoning jurors. But the writs our practice typically involves are “extraordinary writs” or “prerogative writs,” which are particular forms of court orders.
United Kingdom
Writs are legal documents which authorise the holding of a general election or by-election. When Parliament is dissolved prior to a general election, writs are issued declaring that an election be held in each constituency.
The Fixed Term Parliaments Act 2011 removed the power of the Monarch to issue these writs, making it instead a statutory responsibility of the Lord Chancellor and, for Northern Ireland, the Secretary of State for Northern Ireland. For a by-election the writ is issued by the Speaker of the House of Commons.[14]
Historically, writs also formed the backbone of English civil procedure, functioning as the formal starting point for litigation in the superior common‑law courts. Before procedural reform, different forms of writ corresponded to different forms of action; the Common Law Procedure Act 1852 rationalised this landscape by requiring that all personal actions in the superior courts, where the defendant was within jurisdiction, “shall be commenced by Writ of Summons” in a standardised form, with detailed requirements on endorsement, service, renewal, and proof of issue.[15]
Research That Engages
References
- ↑ Andi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v VR Rudani (1989) 2 SCC 691.
- ↑ Binny Ltd v V Sadasivan (2005) 6 SCC 657.
- ↑ Thansingh Nathmal v Superintendent of Taxes AIR 1964 SC 1419.
- ↑ Whirlpool Corporation v Registrar of Trade Marks (1998) 8 SCC 1.
- ↑ Assistant Collector of Central Excise v Dunlop India Ltd (1985) 1 SCC 260.
- ↑ Harbanslal Sahnia v Indian Oil Corporation Ltd (2003) 2 SCC 107.
- ↑ Calcutta Discount Co Ltd v Income Tax Officer AIR 1961 SC 372.
- ↑ Radha Krishan Industries v State of Himachal Pradesh (2021) 6 SCC 771.
- ↑ ABL International Ltd v Export Credit Guarantee Corporation of India Ltd (2004) 3 SCC 553.
- ↑ Joshi Technologies International Inc v Union of India (2015) 7 SCC 728.
- ↑ Union of India v Kunisetty Satyanarayana (2006) 12 SCC 28.
- ↑ Siemens Ltd v State of Maharashtra (2006) 12 SCC 33.
- ↑ All Writs Act, 28 USC § 1651 (2018).
- ↑ Fixed-term Parliaments Act 2011.
- ↑ Common Law Procedure Act 1852.