Introduction
A writ petition in India is a legal remedy available under Article 32 and Article 226 of the Indian
Constitution to safeguard fundamental rights. These petitions are a powerful tool for citizens to
seek justice and remedy against any violation of their constitutional rights. The Indian judiciary
recognizes several types of writ petitions, each serving a specific purpose. Writ petitions play a
pivotal role in the Indian legal system, serving as a potent mechanism for individuals to seek
justice and protect their fundamental rights. Rooted in the constitutional framework, writs are
extraordinary remedies that enable citizens to approach the higher judiciary to enforce their
rights and liberties.
Writ petitions in India represent a cornerstone of the legal framework, providing citizens with a
direct recourse to the higher judiciary to protect their fundamental rights. The diverse types of
writs cater to different scenarios; ensuring individuals have an effective remedy against
arbitrary state actions, administrative lapses, and rights violations. The evolution of
jurisprudence surrounding writs underscores the judiciary’s commitment to upholding
constitutional values and ensuring justice for all.
RIGHT TO CONSTITUTIONAL REMEDIES
A mere declaration of fundamental rights in the Constitution is meaningless, useless and
worthless without providing effective machinery for their enforcement, if and when they are
violated. Hence, Article 32 confers the right to remedies for the enforcement of the
fundamental rights of an aggrieved citizen. Dr. Ambedkar called Article 32 as the most
important article of the Constitution–‘an Article without which this constitution would be a
nullity. It is the very soul of the Constitution and the very heart of it’. The Supreme Court has
ruled that Article 32 is a basic feature of the Constitution. Hence, it cannot be abridged or taken
away even by way of an amendment to the Constitution. It contains the following four
provisions:
(a) The right to move the Supreme Court by appropriate proceedings for the enforcement
of the Fundamental Rights is guaranteed. (b) The Supreme Court shall have power to
issue directions or orders or writs for the enforcement of any of the fundamental rights.
The writs issued may include habeas corpus, mandamus, prohibition, certiorari and quo-
warranto. (c) Parliament can empower any other court to issue directions, orders and
writs of all kinds. However, this can be done without prejudice to the above powers
conferred on the Supreme Court. Any other court here does not include high courts
because Article 226 has already conferred these powers on the high courts. (d) The right to move the Supreme Court shall not be suspended except as otherwise provided for by
the Constitution.
Thus, the Constitution provides that the President can suspend the right to move any court for
the enforcement of the fundamental rights during a national emergency (Article 359). It is thus
clear that the Supreme Court has been constituted as the defender and guarantor of the
fundamental rights of the citizens. It has been vested with the ‘original’ and ‘wide’ powers for
that purpose. Original, because an aggrieved citizen can directly go to the Supreme Court, not
necessarily by way of appeal. Wide, because its power is not restricted to issuing of orders or
directions but also writs of all kinds
The purpose of Article 32 is to provide a guaranteed, effective, expeditious, inexpensive and
summary remedy for the protection of the fundamental rights. Only the Fundamental Rights
guaranteed by the Constitution can be enforced under Article 32 and not any other right like
non-fundamental constitutional rights, statutory rights, customary rights and so on. The
violation of a fundamental right is the sine qua non for the exercise of the right conferred by
Article 32. In other words, the Supreme Court, under Article 32, cannot determine a question
that does not involve Fundamental Rights. Article 32 cannot be invoked simply to determine
the constitutionality of an executive order or a legislation unless it directly infringes any of the
fundamental rights. In case of the enforcement of Fundamental Rights, the jurisdiction of the
Supreme Court is original but not exclusive. It is concurrent with the jurisdiction of the high
court under Article 226. It vests original powers in the high court to issue directions, orders and
writs of all kinds for the enforcement of the Fundamental Rights. It means when the
Fundamental Rights of a citizen are violated, the aggrieved party has the option of moving
either the high court or the Supreme Court directly.
Since the right guaranteed by Article 32 (i.e., the right to move the Supreme Court where a
fundamental right is infringed) is in itself a fundamental right, the availability of alternate
remedy is no bar to relief under Article 32. However, the Supreme Court has ruled that where
relief through high court is available under Article 226, the aggrieved party should first move
the high court.
WRITS–TYPES AND SCOPE
The Supreme Court (under Article 32) and the high court (under Article 226) can issue the writs
of habeas corpus, mandamus, prohibition, certiorari and quo-warranto. Further, the Parliament
(under Article 32) can empower any other court to issue these writs. Since no such provision
has been made so far, only the Supreme Court and the high courts can issue the writs and not
any other court. Before 1950, only the High Courts of Calcutta, Bombay and Madras had the
power to issue the writs. Article 226 now empowers all the high courts to issue the writs. These writs are borrowed from English law where they are known as ‘prerogative writs’. They are so
called in England as they were issued in the exercise of the prerogative of the King who was,
and is still, described as the ‘fountain of justice’. Later, the high court started issuing these writs
as extraordinary remedies to uphold the rights and liberties of the British people. The writ
jurisdiction of the Supreme Court differs from that of a high court in three respects:
- A remedy under Article 32 is in itself a Fundamental Right and hence, the Supreme Court may
not refuse to exercise its writ jurisdiction. On the other hand, a remedy under Article 226 is
discretionary and hence, a high court may refuse to exercise its writ jurisdiction. Article 32 does
not merely confer power on the Supreme Court as Article 226 does on a high court to issue
writs for the enforcement of fundamental rights or other rights as part of its general
jurisdiction. The Supreme Court is thus constituted as a defender and guarantor of the
fundamental rights. The meaning and scope of different kinds of writs mentioned in Articles 32 and
226 of the Constitution: - The Supreme Court can issue writs against a person or government throughout the territory of India whereas a high court can issue writs against a person residing or against a government or authority located within its territorial jurisdiction only or outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction.15 Thus, the territorial jurisdiction of the Supreme Court for the purpose of issuing writs is wider than that of a high court.
- A remedy under Article 32 is in itself a Fundamental Right and hence, the Supreme Court may not refuse to exercise its writ jurisdiction. On the other hand, a remedy under Article 226 is discretionary and hence, a high court may refuse to exercise its writ jurisdiction. Article 32 does not merely confer power on the Supreme Court as Article 226 does on a high court to issue writs for the enforcement of fundamental rights or other rights as part of its general jurisdiction. The Supreme Court is thus constituted as a defender and guarantor of the fundamental rights. The meaning and scope of different kinds of writs mentioned in Articles 32 and 226 of the Constitution:
Habeas Corpus: It is a Latin term which literally means ‘to have the body of’. It is an order
issued by the court to a person who has detained another person, to produce the body of the
latter before it. The court then examines the cause and legality of detention. It would set the
detained person free, if the detention is found to be illegal. Thus, this writ is a bulwark of
individual liberty against arbitrary detention. The writ of habeas corpus can be issued against
both public authorities as well as private individuals. The writ, on the other hand, is not issued
where the (a) detention is lawful, (b) the proceeding is for contempt of a legislature or a court,
(c) detention is by a competent court, and (d) detention is outside the jurisdiction of the court.
Example: If a person is unlawfully arrested by the police, their family or friends can file a writ of
Habeas Corpus to ensure that the individual is produced before a judge.
Case Law: A classic example is the case of Gopalan vs. State of Madras (1950), where the
Supreme Court emphasized the significance of habeas corpus in safeguarding personal
freedom.
Mandamus: It literally means ‘we command’. It is a command issued by the court to a public
official asking him to perform his official duties that he has failed or refused to perform. It can
also be issued against any public body, a corporation, an inferior court, a tribunal or
government for the same purpose. The writ of mandamus cannot be issued (a) against a private
individual or body; (b) to enforce departmental instruction that does not possess statutory
force; (c) when the duty is discretionary and not mandatory; (d) to enforce a contractual
obligation; (e) against the president of India or the state governors; and (f) against the chief
justice of a high court acting in judicial capacity.
Example: If a public official refuses to issue a license or permit, even when all the legal
requirements have been met, the affected individual can seek a writ of Mandamus to compel
the official to perform the duty.
Case Law: In the State of U.P. vs. Manbodhan Lal Srivastava (1957), the Supreme Court held
that a mandamus could be issued against the government to enforce statutory obligations.
Prohibition: Literally, it means ‘to forbid’. It is issued by a higher court to a lower court or
tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it
does not possess. Thus, unlike mandamus that directs activity, the prohibition directs inactivity.
The writ of prohibition can be issued only against judicial and quasi judicial authorities. It is not
available against administrative authorities, legislative bodies, and private individuals or bodies.
Example: If a district court takes up a case that falls under the jurisdiction of a labor tribunal, a
writ of prohibition can be sought from the High Court to stop the district court from proceeding
with the case.
Case Law: A landmark case is A. K. Roy vs. Union of India (1982), where the Supreme Court
issued a writ of prohibition against the government for exceeding its jurisdiction in certain
matters.
Certiorari: It means ‘to be certified’ or ‘to be informed’. It is issued by a higher court to a
lower court or tribunal either to transfer a case pending with the latter to itself or to squash the
order of the latter in a case. It is issued on the grounds of excess of jurisdiction or lack of
jurisdiction or error of law. Thus, unlike prohibition, which is only preventive, certiorari is both
preventive as well as curative. Previously, the writ of certiorari could be issued only against judicial and quasi-judicial authorities and not against administrative authorities. However, in
1991, the Supreme Court ruled that the certiorari can be issued even against administrative
authorities affecting rights of individuals. Like prohibition, certiorari is also not available against
legislative bodies and private individuals or bodies.
Example: If a tribunal passes an order that is in violation of natural justice (e.g., without giving a
party a fair hearing), a writ of certiorari can be filed to quash that order.
Case Law: The case of Hari Vishnu Kamath vs. Ahmad Ishaque (1955) established that
certiorari could be issued against an order passed in violation of the principles of natural justice.
Quo-Warranto: In the literal sense, it means ‘by what authority or warrant’. It is issued by
the court to enquire into the legality of claim of a person to a public office. Hence, it prevents
illegal usurpation of public office by a person. The writ can be issued only in case of a
substantive public office of a permanent character created by a statute or by the Constitution.
It cannot be issued in cases of ministerial office or private office. Unlike the other four writs,
this can be sought by any interested person and not necessarily by the aggrieved person.
Example: If an individual is appointed to a public office without meeting the eligibility criteria,
any interested party can challenge the appointment by filing a writ of Quo Warranto.
Case Law: The Province of Bombay vs. Khushaldas S. Advani (1950) exemplifies using quo
warranto to challenge the legality of holding public office.
Locus Standi in Writ Petitions
Locus standi refers to the legal standing or the right of a person to bring an action or file a
petition in court. Traditionally, only the affected party could file a writ petition. However, with
the evolution of Public Interest Litigation (PIL) in India, this concept has been relaxed.
- Public Interest Litigation (PIL): PILs allow individuals or organizations, even those who
are not directly affected by the issue at hand, to file writ petitions for the greater public
good. PILs have expanded access to justice and have been instrumental in addressing
matters such as environmental protection, human rights violations, and government
accountability.
The Supreme Court and High Courts have increasingly entertained PILs as a means to address
systemic issues affecting society at large. The PIL mechanism allows the courts to hear cases brought by concerned citizens or groups representing marginalized sections of society who may
not have the resources to approach the court on their own.
Challenges and Limitations of Writ Petitions
While writ petitions serve as a powerful tool for upholding constitutional rights, there are
certain limitations and challenges associated with them:
- Delay in Justice: Courts in India, especially the higher judiciary, face a significant backlog
of cases, leading to delays in hearing and resolving writ petitions. This can dilute the
efficacy of the writ remedy, especially in cases requiring urgent attention.
- Judicial Overreach: The expansive use of writ jurisdiction, especially in PILs, has
sometimes led to allegations of judicial overreach, where courts are accused of
encroaching upon the domain of the executive.
CONCLUSION:
Writ petitions are integral to the Indian legal system, allowing citizens to seek justice and
protect their fundamental rights. While the case laws mentioned above illustrate instances
where writs have been favorably entertained, it’s important to note that the issuance of writs is
subject to each case’s specific facts and circumstances. The evolving landscape of jurisprudence
continues to shape the contours of writ jurisdiction in India, emphasizing the judiciary’s
commitment to upholding the rule of law and protecting constitutional rights. Exploring the
various types of writ petitions in India reveals a potent legal tool for safeguarding constitutional
rights and seeking swift judicial remedies. Whether it’s through writs of habeas corpus ensuring
personal liberty or writs of mandamus compelling public authorities to perform their duties,
each writ serves a distinct purpose in upholding justice and accountability. For NRIs seeking
legal redressal in India, understanding these writs is crucial. Effective legal services for NRIs can
utilize these writ petitions strategically to address issues ranging from property disputes to
enforcement of contractual rights, ensuring that justice is accessible across borders and
jurisdictions. By leveraging the nuances of each writ petition, legal practitioners specializing in
services for NRIs can provide robust representation and protection of their clients’ interests
within the Indian legal framework.