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Shivani Jain

Shivani Jain | Updated: Apr 23, 2020 | Category: Legal

What is the Procedure for Filing a Writ Petition in India?

As we know, our Constitution is the world’s longest constitution. It has provided various rights to both its citizens and non-citizens. Also, the multiple remedies provided to enforce our fundamental rights is one of the most notable features of our constitution. One such remedy provided in the Indian Constitution if of Writ.

Definition of the term Writ

A writ is an order passed by a higher court to a lower court or courts, commanding them to either do something or to stop them from doing something. Further, a writ petition is a kind of written direction in the name of the court. It commands the court to act in an exact way.

Types of Writ

Furthermore, in India, the power to issue a writ petition is mainly a provision, i.e., the Right of Constitutional Remedies to every citizen. This said right acts as a guarantor of all other fundamental rights available in India. In total, there are five types of writ petition available in the Indian constitution, which one can file either before a High Court or the Supreme Court. The following listed are the types of writs available in India –

  1. Habeas Corpus
  2. Mandamus
  3. Prohibition
  4. Certiorari
  5. Quo Warranto

Writ Petition under Constitutional Law

In our Indian legal system, an individual can easily file a writ petition under Article 226 or Article 32 of the Indian Constitution either in the High Court or the Supreme Court of India. Further, Article 32 and Article 226 of the Indian constitution talk in detail about the types, process, and meaning of the writ petition, which are to be followed by the petitioner whenever there is a violation of fundamental rights.

Article 32

It is a fundamental right guaranteed by our Indian Constitution. This article provides for constitutional remedies against the infringement of the fundamental rights of a citizen. Further, the jurisdiction of the Hon’ble Supreme Court to issue writs is valid on the whole of India. However, it is significant to note that the Supreme Court is not bestowed with the right to issue writs against any administrative verdict, which is in contravention of the ordinary law.

Article 226

Article 226 confers authority on the High Courts to issue a writ in the territorial zone over which they have jurisdiction. This article provides constitutional remedies for the implementation and protection of fundamental rights. Further, the writ jurisdiction of the High Court is much wider than the Supreme Court. The reason behind this is that the High Court can issue writs not only for the implementation and protection of a fundamental right but also for any act which is in contravention to the law or any grievance of a law.

Why is a Writ Petition needed?

Writ petition is usually filed whenever there is a violation or infringement of rights, or any kind of injustice is served to any individual or aggrieved. Further, the concept of a Writ Petition is basically a remedial measure provided by our Indian Constitution against the authority regulating and administering law and order in the country for the following listed reasons –

  1. To assist citizens, defend their rights against the court orders.
  2. To provide an alternative to the aggrieved person when impugned order is not opposed by the appeals made to the authorized higher authorities in the legal system.
  3. To ensure justice served but not justice denied.

Who can file a writ petition?

A writ petition can be filed by any individual or aggrieved person whose fundamental rights are being infringed or violated. However, it is pertinent to note that the writ of Habeas Corpus can be easily filed on behalf of the aggrieved person also. Whereas in the case of Quo Warranto, the said writ petition can be filed by any person regardless of his right being infringed or not.

Where can a Writ Petition be filed?

Writ petitions can be filed in either in the Supreme Court or in the High Court of that respective State where the fundamental right has been infringed or violated. Further, in the case of Habeas Corpus, a writ is not qualified to be issued by the High Court if the concerned person is detained outside its jurisdiction.

How to File a Writ Petition

The following listed are the steps that should be duly followed while filing a writ petition –

  1. The first and foremost step is to ascertain whether the cause of action is remedial by the issuance of a writ.
  2. In the next step, the aggrieved person is required to file a petition either with the help and assistance of a lawyer or by himself annexing all the necessary documents, affidavit, and the prayer.
  3. Further, this petition is then required to be filed at the filing counter of the particular High Court. Then a future date for the consideration of the said matter will be given.
  4. On the date of consideration, the lawyer or the concerned person himself can plead the matter. However, it is significant to note that the High Court has the autonomy to either accept or dismiss the petition.
  5. If in case the court admits or accepts the said petition, then a notice is sent to the opposite party, and the court will give another date of hearing.
  6. Lastly, on the date of hearing, all the contents are well-settled, and the Court grants relief as it deems appropriate.

Important points to remember regarding Writ Petition

The following listed are the points that are to be taken into consideration while drafting or filing a writ petition –

  1. If in case the petition is dismissed by the court, no fresh petition is allowed to be filed on the same cause of action.
  2. It is always advisable that the aggrieved person must consult a lawyer and, instead of himself, let the lawyer file the petition using his expertise.
  3. Further, in the case of a Habeas Corpus petition, the petition can also be filed by the aggrieved in the form of a simple application.
  4. Do not file a vexatious or a frivolous petition.

Conclusion

The concept of the Writ petition was brought in our Constitution in order to help a victim if in case he or she is deprived of any basic or fundamental right or any injustice is made to him or to help the said person in fighting against the decision taken by the last legal authority. Lastly, in order to file a Writ petition, the concerned individual has to either take the assistance of a legal advisor or need to hire a civil lawyer to file the said petition on his behalf.
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Shivani Jain

Shivani Jain

Shivani has completed her B com LLB (Hons) and has the experience of writing various research papers during her college time. Earlier she was working as an Associate in a Delhi based Law Firm, but her interest in writing made her pursue Legal Content Writing as a career. Her core area of interest is in writing about various legal enactments, tax and finance.


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