Writ & Writ Petition: Definition, Types & Differences

People must know the context of justice that is offered in the Indian Constitution. It is a fundamental right of every person. The Constitution lays down social, economic, and political justice for citizens and guarantees their equality before the law. It does not restrict an individual to appeal before any legal authority. The Constitution also offers the use of rights by individuals to be done within the provisions of the law and the accepted judicial procedures. At this point, the concept of writ comes into the scene. In Ancient times, writs were effectively used to depict a ‘Composed Direction of the King’ which serve to notify the village tenants regarding the new directions for the land revenue. Writs in the Indian Constitution were borrowed from the English law, but with a slight difference. It can be accessed by any individual to exercise or claim his/her right against the court’s order when served injustice or impugned, as the case might be.

What is a Writ?

A writ can be understood as a written order that is issued by the court of higher authority. It is issued to a court with a lower jurisdiction or to an individual in case of any violation of the fundamental rights of any citizen. According to the Indian Constitution, the Supreme Court of India holds the right to issue a writ under Article 32. And the same power is held by the High Court under Article 226. These writs are issued against the decision of any court/individual lower according to their jurisdiction. Both articles specify the nature of the Writ, procedures, and rules that are to be followed by the petitioner in case there is any violation of the fundamental rights. A writ petition can be filed by an individual/aggrieved party, either civil or criminal, depending on the situation to a higher level of court against the order/decision of the lower court.

What is the need?

A writ petition is generally filed in case of violation of the fundamental rights or injustice served to any individual/aggrieved. It is basically a remedial measure that is provided by the constitution against the law and order regulating authority in the country for the reasons mentioned below:

1. To help citizens protect their fundamental against court orders.
2. To offer an alternative to the aggrieved in case of impugnment is not objected by the appeals made to the authorized higher authorities in the legal system.
3. To make sure that justice is served and not denied. 

Different Kinds of Writs in the Indian Constitution

Article 32 and Article 226 of the Indian Constitution provide two separate but parallel provisions regarding the Writ jurisdiction with the Supreme Court and High Court respectively. The incorporation of Article 32 provides for the constitutional remedy against the violation of the fundamental rights. The remedy under his article is limited to the violation of fundamental rights only.

• Writ of Habeas Corpus

It is considered the most crucial writ for personal liberty. Habeas Corpus literally means, “Let us have the body.” a person can move to the court for the issue of this writ when arrested. Through this petition, Court orders the detaining authority to present the arrested person before it so that the court may examine if the person arrested was detained lawfully or otherwise. If the court, after examination, concludes that the person was illegally detained then it can issue orders for his release.  Habeas Corpus ensures that the arrested not to be kept in unlawful detention i.e., detention that lacks sufficient cause or evidence. The remedy can be sought both by the person arrested or the person coming to the prisoner’s aid. It is an English originated system that was later adopted by many nations. It is historically proved to be an important legal instrument that safeguards an individual’s freedom against arbitrary state action. 

• Who can Apply for the Writ?

Generally, the rule is that an application can be filed by a person who is said to be illegally detained. However, in some specific cases, an application of Habeas Corpus can be filed by any person, other than the one detained, on his behalf i.e., friend or relative. It simply demands the prisoner to be taken before the court so that the court can examine the case and determine whether the accused is legally or illegally detained. Another reason that the prisoner should not apply the Habeas Corpus is that the detainee might be held incommunicado. Habeas Corpus comes with certain constraints. It is technically a procedural remedy. It guarantees against any detention that is prohibited by law, however, it does not necessarily defend other rights, like the entitlement to a fair trial.

• Writ of Mandamus

Mandamus is a Latin origin word and it means “we command”. It is an order from a superior court to a lower law authority or public authority to perform an act, which falls within its duty. It is issued to secure the performance of public duties as well as to enforce private rights held by the public authorities. It can be basically summed up as a writ is issued to a public official to do a duty that he has failed to do so far.  Issuing such writs is a part of the discretionary powers of a court. The primary purpose is to regulate the Government Machinery and make sure it works properly. An order mandamus can be understood as a command directed to a person, corporation, or a lower tribunal, asking them to do abide by a particular thing regarding their office and which is associated with a public duty. The public servants are answerable to the public for their public duties as directed by the laws. Failure of compiling their duties a writ of mandamus may be issued in the name of that official or the authority warning him about his unfulfilled public duties and ordering him to fulfill the same.  Mandamus may also be issued to a tribunal to compel it to abide by its duties which it has refused to exercise. It might be issued in cases associated with a specific legal right, without a particular remedy for the enforcement of such rights.

• The Writ of Certiorari

Certiorari literally means to be certified. Supreme Court holds the authority to issue the writ of Certiorari to a lower court or tribunal to transfer the matter of concern to it or some other superior authority of critical consideration. The writ of certiorari is issued by the Supreme Court to suppress the order that has already been passed by an inferior court. This writ can be resorted to only after the order or decision has been declared. The writ of certiorari can be issued by to judicial or quasi-judicial body on certain grounds:

• In cases where exist a want or excess of jurisdiction, this writ is issued to a body that performs a judicial or quasi-judicial function for corrections of the jurisdiction, when a lower court, authority, or tribunal acts without a proper jurisdiction or in excess of it or fails to exercise it.  
• This writ can be issued for correcting the error of law that is evident in the face of the record.  
• Certiorari can also be issued in matters of disregard of the principle of natural justice

• The Writ of Prohibition

This writ means to forbid or to deny and it is popularly known as ‘Stay Order’. This writ is issued in cases when a lower court or a body makes efforts to transgress the limits or powers vested in it. Supreme Court issues such a writ to forbid a lower court or tribunal to perform an act that is outside its jurisdiction. 

• The Writ of Quo-Warranto

It literally means “by what warrants?”. It is issued to restrain a person from acting in public office to which he/she is entitled. It is issued with a view of preventing illegal assumption of any public office or usurpation of any public office by anyone. The claim is to act in a public office even when not entitled to.  NOTE: Quo warranto meaning- a writ or legal action which shows on what warrant the specific person is held. In case your fundamental rights are violated, then you may file a writ. Usually, one shall file a writ petition against any of state and government agencies. But, one is also entitled to issue a writ against private authorities when proven to be discharging public functions.

Differences Between Mandamus And Prohibition

• In the case of a Writ of Mandamus, the court directs the activity performance to a lower court. Whereas in the case of a Writ of Prohibition, the Supreme Court orders the lower court to stop doing anything excessive of their jurisdiction.
•  One may issue a Writ of Mandamus against any administrative authority, judicial or quasi-judicial. On the other hand, one can't issue the writ of prohibition against the administrative authority, however, one can issue it against the judicial or quasi-judicial. We provide all kinds of legal services like Trademark Registration, Company Registration, FSSAI License, and many more. So, contact the expert team of “LegalRaasta”, for a completely smooth and hassle-free process.

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