Concept of Writ Petition

As rightly quoted by Benjamin Franklin, “Justice will not be served until those who are unaffected are as
outrages as those who are.”

This means that in order to serve justice it is important that the illicit act makes the affected as well as the
unaffected people equally perturbed. Unless this happens the true sense of justice cannot be served. India is a
country where it has always been an objective of the judiciary to set an example through its judgements so that
those who might think about indulging in some illegal activity in the future gives a thought or two about the
repercussions of his or her acts.

The need to provide justice to all gives rise to the concept of writs. This concept was introduced in Common
Law in order to keep a Judicial eye on the administrative framework of organisations. The law of writs
originated from orders passed by the King’s Bench in England. It was a precisely a royal order at that time
which was issued under a Royal Seal. At the initial stage the king’s court consisted of barons and high
ecclesiastical with legislative, judicial and administrative functions. But with the course of time it got different
names and forms, though the powers and spirit of a writ remained the same nonetheless.

Writs were introduced in India through the Regulating Act of 1773. The Writs were time tested concepts of the
English judiciary and was quite effective, thus even after the gaining independence, the writs continued to be a
part of the Indian Judiciary as well. It was added in a way that the concept remained the same in its nature, the
scope of the same was enlarged for the purpose of keeping it open ended. The citizens of free India suffered
terribly at the hands of the British Government in the past. This led to lack of confidence and faith in the newly
set up government to some extent, but the citizens had high optimisms of getting liberty and practicing free will
in the name of freedom. In order to safeguard these dreams in an organised fashion, the Fundamental Rights
were introduced in the Indian Constitution. Under Article 32 and 226 of the Indian Constitution, the
enforceability of these rights came into existence.

For time immemorial, the people of India faced numerous treacheries at the hands of the British Government.
They were treated as down-trodden in their own country. The faith on the official seated at the higher level was
shaken due to such deceits. In order to replenish the faith of the people in the Governing bodies, writs were
introduced as remedies against the violation of fundamental rights by people seated at higher authoritative
positions. This power was vested under Article 32, as a fundamental right, to approach the Supreme Court and
an almost parallel legislation was framed under Article 226, as a constitutional right to the citizens of India.
  Types of Writs

Writs in India are categorised into five types:

1. Habeas Corpus

The writ of Habeas Corpus can be issued against the state or a person in order to challenge illegal detention of
an aggrieved person. This writ is issued in order to preserve the liberty of a person who is being illegally
detained. The person or body having the custody of the aggrieved person is the one against whom the writ is
issued. This writ acts as a powerful remedy against illegal detention.

Landmark Judgment- ADM, Jabalpur v. Shivkant Shukla 1976 AIR 1207

This case is also known as the “Habeas Corpus Case”. In this case it was held by the Supreme Court that no one
could seek redressal from the court during emergency in order to seek protect for his liberty, limb or life,
threatened to be taken away by the state. In this very judgement, it was explained by Justice Khanna that “writ
of habeas corpus is a process of securing the liberty of an aggrieved person by providing an adequate method
for immediate relief from wrongful or illegal detention. Whether the person kept in wrongful custody is in
prison or under private custody of an individual.”

2. Mandamus

The writ of Mandamus if a command given by the High Court or the Supreme Court to any lower court or
tribunal or board or any other public authority for the performance of their public duty, given to them by law.
But this writ cannot be used by the superior court to force the lower body or to make them act in an unjust or
illegal manner. Thus, it can be said that this writ is a command to do and also not to do an act that is against the
law, as the case may be. The existence of this writ is based upon the existence of a legal right and it cannot be
issued in the absence of a legal right.

Landmark Judgement- State of Mysore v. K.N. Chandrasekhara 1965 AIR (SC) 532

In this case , writ of Mandamus was issued by the Supreme Court against the Public Service Commission for
the inclusion of six names in their list prepared under Rule 9(2) of the Rule of appointing the cadre of Munsiffs.
Such an order given by the court to the commission could also be given to any other person or body corporate
in order to make them perform their public duty.

3. Prohibition

The writ of prohibition is a writ of a preventive nature and is issued against a constitutional, statutory or non-
statutory body or a person exceeding its jurisdiction or trying to act under a jurisdiction that is not vested to
them. It is a general remedy given to the aggrieved person in order to keep a check on the judicial, quasi-
judicial or administrative decisions so that the rights of the people are not violated.

Landmark Judgement- East India Commercial Co. Ltd v. Collector of Customs 1962 AIR 1893
It was observed by the Supreme Court in this case that the writ of prohibition can be issued by the higher
authority directing the lower body, i.e. the lower courts or tribunals, to stop acting on the issues that exceed the
jurisdiction that is vested in them. The grounds of such a proceeding taking place would be the excess or the
lack or jurisdiction, as the case may be.

4. Certiorari

The Latin term certiorari means “to certify”. The grounds for issuing the writ of certiorari are quite similar to
that issuing the writ of prohibition. The writ of certiorari is a judicial order by the superior court to the lower
courts or tribunals to keep a check on the jurisdiction. In case the lower body exceeds its jurisdiction, the
superior court has the power to quash the decisions of the lower body. The supreme court or high court may
also order scrutiny of pending cases in order to decide the validity of the proceedings of the lower court or
tribunal.

Landmark Judgement- Province of Bombay v Khushaldas 1950 AIR 222

The statement given by Lord Atkins was approved by the Supreme Court in the given case. He stated that the
writ of certiorari may be issued “wherever any body of person having legal authority to determine questions
affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority.” For
components of this writ were categorised in this case being,

(i) Body of persons

(ii) Legal authority of such a body
(iii) Legal duty towards the determination of the questions affecting the rights of the people
(iv) The duty to act in a judicial manner.

5. Quo Warranto

The term Quo Warranto means “by what authority”. This writ provides the court with the power to question the
holding of an office by a person. This writ can only be issued in the cases where the office in question is a
public office. Also it needs to be proved that the office in question is taken over without legal authority. 

Landmark Judgement- University of Mysore v C.D. Govind Rao 1965 AIR 491

In this judgement the appointment of respondent Anniah Gowda was said to be illegal due to the fact that he did
not possess a high second class degree from an Indian University, though he possessed the equivalent
qualification of Masters of Arts from a Foreign University. But since his office was a public office, i.e. a place
where the interest of the public rests, his authority to hold the same was questioned and held to be invalid.

 Conclusion

A writ petition is filed by an aggrieved person to facilitate a speedy review of his or her petition that was
already decided upon by a lower court or tribunal. The introduction of writ petition facilitated the citizens to
approach the higher authorities in order to seek assistance and to validate the decision given by the lower court
or tribunal. A writ petition can be filed by any person who feels that his or her fundamental rights are being
violated. The goal of the Preamble of the Constitution is to provide social, political and economic justice to all
the Indian citizens. The introduction of writs in the Indian Judiciary helps in effective working of this goal and
prevents the misuse of any right that has been conferred to the citizens.