Articles 32 and 226 of the Indian Constitution, involve two distinct but interconnected provisions about writ jurisdiction in the Supreme Court and High Courts. Article 32 provides explicitly a constitutional remedy against the violation of fundamental rights. Writ, in common law, order issued by a court in the name of a sovereign authority requiring the performance of a specific act. The most common modern writs are those, such as the summons, used to initiate an action. Other writs may be used to enforce the judgment of a court (attachment, delivery) or to require a lower court to furnish certain records (error) or perform a certain act (mandamus). In this study,3 case data from writ petitions filed between 2012 to 2016 was examined to see how it has exercised its writ jurisdiction and the challenges it faces in doing so.
Any judicial entity as “subject to bias” when he is in favour or against any party to the dispute or where it can be assumed that bias exist then he should not take part in the decision. Also where there exists any pecuniary interest(or any other interest) of the person sitting to provide justice to all will become reason for his disqualification in giving decision in meaning of writ petition that case. Held- Allahabad High Court held that order of sub- Divisional Magistrate is contrary with the provision of section 85 and quased the same order by issuing a writ of certiorari.
A writ is a legal instrument similar to a written order issued by a higher court. These writs are bestowed upon lower courts or individuals when the fundamental rights of a citizen are violated in India. Under Article 32 of the Indian Constitution, an authority or entity can issue writs to the Supreme Court. This means they can issue an order to the Supreme Court of India under the article above of the constitution. This gives the authority a mechanism to seek judicial relief or remedy for its grievances or complaints against the government or any other person or entity.
WHAT IS WRIT PETITION? HOW CAN YOU FILE ONE IN THE COURT?
Writ can be issued only if the office in question is a public office and any person claiming a writ must establish this fact first. Also it needs to be proved that the office in question is usurped without legal authority. Therefore that lead to an enquiry that the person claimed to be usurped the office is appointed legally or not. Usually reasoned decisions or duty to give reasons arises where the statute provides an appeal, review or revision against the order passed. But those reasons given by the tribunal or inferior court, would become easier for the court to make further decision and the reason will make give a clear picture of the authority given the decision.
Writ Petitions Demystified: A Step-by-Step Guide for Success
Supreme Court held that fundamental principle of natural justice states that both the parties to the case be given equal opportunity to make their representation but where it is expressly provided in the act a right to a personal hearing then the authority deciding the case must hear the case personally. Under the Central Provinces and Berar Sales Tax Act, 1947 (Act I XXI of 1947), cotton was declared liable to sales tax on the 11th of April, 1949, and since that date the appellant commenced paying the tax in respect of the purchases made by it til december 1950. Further he declined to pay tax, because he realised that payment of tax could not be made liable in state of Madhya Pradesh because the transaction done in State of M.P.
G .How Writs work:
These petitions provide extraordinary judicial relief to the person whose rights are being infringed by any judicial or quasi- judicial order. PIL has an important role to play in the justice system; it affords a ladder to justice to the disadvantaged sections of the society, some of which might not even be well-informed about their rights. To facilitate access to justice, the judiciary relaxed the rule of locus standi in favour of a person acting bonafide and having sufficient interest in the proceedings of Public Interest Litigation (here in after referred as PIL).
Writs, that have their roots in the English system of law, serve as vital for ensuring the upholding of basic rights and freedoms. Understanding the importance, and function of writ petitions for upholding the supremacy of law is required for understanding their fundamentals. In the case of STATE OF UP vs MOHAMMED NOOR (AIR 1958 SC 816)4, the supreme court stated that one can issue the writ of certiorari. To mainly reform the jurisdiction-related mistakes of the inferior court or tribunal. “When the lower courts including the tribunals, forums or any public authority (magistrate, commissions or any other judicial officers) do something which exceeds their jurisdiction, the Supreme Court or High Court prohibits them by issuing the writ of prohibition,” says Advocate Ankit Sharma.
In literal terms, mandamus means “we command.” It is an order from the court for a public official to carry out official obligations that they have neglected or declined to carry out. Understanding legal procedures such as appeals and post-conviction remedies can be overwhelming and complex, especially when you or a loved one are involved. MyAdvo acts as the client’s legal concierge providing technology solutions for lawyer discovery, price discovery and case updates.
- A writ petition might be a useful remedy if you think authorities are making legal mistakes or violating your fundamental rights.
- It aims to thwart individuals from usurping or occupying a public office without legal permission, challenging their right to do so.
- Understanding this process helps criminal lawyers navigate the legal system and seek appropriate remedies.
- Unlike other review petitions, curative petition can’t be decided in an open court.
- A lower court or tribunal receives this writ from a higher authority court, directing them to either transfer a case that is pending with them to themselves or revoke an order they have made in a case.
Clearing on the point it was also held that writ of prohibition will lie when the proceeding are pending to a large extent and writ of certiorari will be issued when then case has been terminated in a final decision. This writ can be issued during the proceedings are pending before a judicial and quasi-judicial body and if the proceedings have been terminated and authority became functus officio then in such cases writ of prohibition can’t be issued. But the writ does not lie to correct the course, practice or procedure of inferior courts or tribunal, also to correct the wrong decision of inferior court on the merits because issue can be issued only when the subject matter of the plea is a question of law. Mandamus is a supplementary means of substantial justice, when there is no specific legal remedy available before any person for protection of their rights given by law and the court is satisfied that the administrative authorities have not acted according to the law then the writ may be issued.
Effective communication of legal points in a clear and compelling manner can significantly influence the court’s decision-making process. The Executive have to reach their decisions by taking into account relevant considerations. They can neither refuse to consider relevant matter nor can they take into consideration accounts which are fully irrelevant or extraneous with the facts of the case and law. If these grounds are not found in any statue then the law is declared ultra vires and violative of Article 14 of the Constitution. In the instance case, suit was filed by the appellant for recovery of money from the principal debtor as well as the guarantors.
Any person whose Fundamental Rights or any other legal or constitutional rights have been Violated by the order of inferior court. Issued to quash the order passed by the inferior courts or tribunals in excess of jurisdiction. It says that when the same question has been decided by the High Court under Article 226 and conclude the matter with an order that no relief is granted to the petitioner then such decision of the High Court act as res judicata in subsequent petitions for similar relief. If the applied writ is not serving any fruitful purpose then High Court in its discretion reject the application of the person seeking the writ on the same ground.
- This is the whole procedure followed by the writ courts to lodge a writ petition by any person whose fundamental rights are being infringed by any judicial or quasi- judicial order, direction or judgement.
- This comprehensive guide aims to demystify the process of writ petitions, offering a step-by-step approach to help you navigate the legal landscape with confidence and increase your chances of success.
- In India, a writ refers to a formal written order issued by a court, typically one with higher authority, to direct a lower court, government official, or any other individual to perform a specific action or to refrain from doing so.
- This article is written by Pratibha Bansal, a student of Banasthali Vidhyapith, Rajasthan, she has tried to explain the whole concept of writ under Indian Constitution in her article, along with some landmark judgment and decided case laws and procedure of filing writs in High Courts and Supreme Court.
This comprehensive guide aims to demystify the process of writ petitions, offering a step-by-step approach to help you navigate the legal landscape with confidence and increase your chances of success. Power to issue writ, though is discretionary yet unbounded in its limits and such discretion can be exercised only on sound legal principles. Absence of arbitrary power is the first essential for the principle of rule of law upon which the whole constitutional system is based. Constitution law itself states that law is a supreme body and no one can be above the law. Even the judges of the supreme court are bound by the decision given by them in accordance with the law.