Know About Writ to Protect Your Fundamental Rights

Part III of the Constitution of India deals the fundamental rights of the person. This part is also called the heart of the Constitution, which provides right to life and liberty, equality before law, freedom of speech and expression, liberty of thought belief and worship, cultural & educational right, fair trial and right against discrimination etc. A writ can be filed before High Court or Supreme Court in case of infringement of the fundamental rights under Article 226 & Article 32 of the constitution of India respectively. Supreme Court entertain writ only in those cases where there is violation of fundamental rights, however under Article 226 a writ petition can be filed in High Court even in case of infringement of legal rights.      

 Who can file a writ: Any citizen of India can file a writ petition, however, a foreigner can also file writ petition for enforcing his right to life and equality before law. Court can also issue writ in the interest of justice and public interest.

 Types of Writs:

1. Habeas Corpus

2.  Mandamus

3. Prohibition

4. Certiorari

5. quo warranto 

Habeas Corpus

Writ of Habeas Corpus is sought to enforce the right to life. When the life of a person is in peril this writ is sought. Normally this writ is issued in case of illegal detention. This writ can be issued even on a post card sent to the Judge by victim or his relatives.

 Mandamus

Mandamus is sought for direction to the subordinate court/tribunal or government officer to perform mandatory duties correctly. Writ of mandamus is most popular writ, which is issued against the arbitrary/illegal acts of government officials including police officers, municipal bodies etc.

Prohibition

Prohibition is an extraordinary writ usually sought requesting an order from the Appellate Court that an inferior court/ tribunal be prohibited from undertaking further action on a case pending before it; commonly know as stay of proceeding.

Certiorari

Certiorari is sough to review/quash the decision of an inferior court/ tribunal or other statutory body where such decision/order is passed in utter violation of principle of natural justice or without jurisdiction. This writ is also sought in case of service related matter for quashing the decision of departmental enquiry proceeding and punishment imposed upon the delinquent employee.

 Warranto

The writ of quo warranto enables enquiry into the legality of the claim which a person asserts, to an office or franchise and to oust him from such position if he is a usurper. The holder of the office has to show to the court under what authority he holds the office. It is issued when (a) the office is of public and of a substantive nature; (b) created by statute or by the Constitution itself, and (b) the respondent has asserted his claim to the office.

Apart from this classification the writ petitions are also divided into two categories according to its nature ie. Civil Writ Petition and Criminal Writ Petition. Civil Writ Petition is filed in those case where the issue is of civil nature ie. Writ for direction to municipal bodies to provide sanitation and water facilities etc. If issue is relating to criminal nature criminal writ is filed ie. Writ for quashing of FIR, registration of FIR,Further investigation of transfer of investigation.

Against whom a writ can be filed:

A writ can be filed only against State and the same is not maintainable against private individual or corporations. However, a private individual or corporation can be a party in the writ partition if relief sought in the writ petition affects his interest.

Who is “State”:  “State” has been defined under Article 12 of the Constitution as "the State" includes the Governmental and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India. However after the decision of the Supreme Court in Airport Authority case the definition of the state has been widened up and it includes all authorities which are instrumental to government or Government has control in the appointment/removal of office bearer/employees, funding and functions of such authorities. Now the societies registered under societies Act, Universities, Boards etc. are “state” under Article 12 of Constitution of India.    

Grounds for granting Writ:

A writ is granted when there is violation of fundamental right or legal rights of person and when the inferior court, tribunal, board, or public officer has acted illegally or exceeded its jurisdiction or have no jurisdiction or there is violation of principle of natural justice i.e. the petitioner has not been grant opportunity to be heard or the allegations against him has not been disclosed to him and there is no other equally speedy and adequate remedy is available. Writ of habeas corpus can be filed for illegal detention if a person is illegally detained for more than 24 hours without producing him before a magistrate within 24 hours. The issues are resolved in the writ when there is only disputed question of law. The issues of pure facts which need trial are not resolved in the writ.For any further query or clarification write to azeez_nazar@yahoo.com.