LEGAL PRACTICE COURSE

DRAFTING OF WRIT PETITION

Sudev Singh

Division B

B.A. LLB

17010125169
Introduction

The point of a writ petition is for a higher court to check or order a lower court against doing
something illegal or unconstitutional. The Constitution under Articles 32 and 226 confers writ
jurisdiction on Supreme Court and High Courts for the protection of citizens’ fundamental rights
in India. A rrit is an instrument or order of the Court by which the Court (Supreme Court or High
Courts) directs an Individual or official or an authority to do or refrain from doing a particular
act.

Articles 32 and 226 provide five types of writs namely Habeas corpus, Mandamus, Prohibition,
Certiorari and Quo-warranto. These are known as prerogative writs in the laws of the United
Kingdom as they when the reigning monarch had superimposing powers over the courts and
tribunals under his territory. The prerogative writs are extra-ordinary remedies intended to be
applied in exceptional circumstances where justice is suspected to be superseded.

Constitutional Background

Parliament under Art. 32 can also call on any other court to exercise the power of the Supreme
Court, provided that it is within its jurisdiction. Barring any untoward constitutional amendment,
the rights guaranteed by this Article are not liable to being suspended.

Mandamus - This writ is issued for the correct performance of mandatory and purely ministerial
duties and is issued by a superior court to a lower court or government officer.
Certiorari - It is issued when there is a wrongful exercise of jurisdiction, and the decision of the
case is based on it.

Habeas Corpus - purpose of this writ is to seek relief from the unlawful detention of an
individual.

Quo Warranto - This writ is invoked in cases of public offices, and it is issued to restrain persons
from acting in public office to which he is not entitled to.

Prohibition - It is a writ directing a lower court to stop doing something which the law prohibits
it from doing.

Precautions

As indicated by the guest lecturer, certain standard precautions are liable to be taken when
engaging in drafting a writ petition. These are followed to avoid loss of time and effort, and
unnecessary inconvenience both to the petitioners and to courts. For example, one of the
precautions was to include the caveat of indicating in the writ petition that the writ in question, or
any other which may be so applicable is prayed for. This is not included in the specific format of
the writ and is not an essential part of the petition, but merely a safeguard in cases where a court
may offer relief under another writ rather than the one prayed for and if this caveat is not
mentioned, the court’s hands are tied, and it is an easy loophole that may cause an avoidable
dismissal. In addition, although statutes of limitation do not apply to writ petitions in India, it is
not advisable to cause inordinate delay and if such delay occurs, it must be satisfactorily
explained. The lecturer also stressed upon the importance of clarity of facts and stated that there
must be a clear chain of facts that reflect in the writ petition in order to draft a reasonably
understandable prayer as well as aid the adjudicator in understanding the case better.
Chronology was also emphasized upon as holding extreme importance, as every writ petition
requires a clear and logical sequence of events with respective dates in order to provide courts
with as clear a picture as possible.

Parts of a Petition

A petition has certain parts that must be adhered to when drafting. Although they sometimes
differ slightly through courts, by and large a writ petition requires a synopsis which must include
the list of dates which as mentioned earlier is crucial, along with a logical chronology of events.
This is followed by the facts in brief sorted by paragraphs, and then the grounds on which the
petition stands must be specified. This is followed by the prayer which states what relief is
desired as an outcome of the petition. In addition, a disclaimer or averment is added to indicate
“that the present petitioner has not filed any other petition in any High Court or the Supreme
Court of India on the subject matter of the present petition.”

Procedure

Procedural aspects sometimes differ from court to court, for example the guest lecturer opined
how the Delhi High Court requires separate heading for parties in the draft of the petition, and an
introduction must also be provided unlike in the Supreme Court or some other High Courts. It is
no longer necessary to make the adjudicating authority or lower court a party to proceedings in a
writ of Certiorari, which earlier was the case. The petitioner must make clear that no writ petition
prior or parallel is pending in court. All documents that are attached as annexures must be
mentioned in the body of the petition, this is a major procedural difference between a Special
Leave Petition and a Writ petition. The Supreme Court does not accept Writ Petitions in any
language other than English, and thus unlike certain lower courts, every petition must be
translated into English to be brought before the apex court.

In the Supreme Court, writ petitions must contain the specific questions of law that arise in the
petition for further clarity. Fees for writ petitions are standard for lower courts at Rs. 100 and for
the Supreme Court at Rs. 500.

Conclusion

The lecture apart from being procedurally informative also highlighted how injustices against
individuals by powerful administrative embassies may be challenged in courts through writ
petitions, and how effective a tool for justice writs can prove to be. It is important for society to
know of their fundamental rights as well as the powers available to enforce them through the
constitution.