Drafting, Pleading and Conveyancing

(Semester- X)

Research Project on
“Overview of drafting different Writ petitions in High Court with special reference
to Prayers ”

Submitted By:
Siddhant Vyas- 2018/BALLB/02
Maharashtra National Law University, Aurangabad

Submitted to:
Ms Sadhana Deshmukh
Ms Priya Gondhalekar
(Faculties in charge)
Maharashtra National Law University, Aurangabad
 Table of Contents
Sr. No. Topic Pg. No.
1. Introduction
2. Writ Petition and Fundamental Rights
3. Who can issue Writs?
 I
Introduction

A writ petition is a petition or an application by a petitioner where prayer is made for the
issuance of a Writ for the redress of his grievances. A writ petition contains averments or
statements sworn, in form of an affidavit, writ, literally means a legal document that orders a
person to do a thing.

Article 226 (1) empowers the Hon’ble High Court, throughout the territories about which it
exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs including writs like habeas
corpus mandamus, prohibition, 2nd warrants and .certiorari, for the enforcement of any of the
rights conferred by Part III of the Constitution and for any other purpose (i.e. for enforcement
of Constitutional rights other than fundamental rights and legal rights under other statutes).

Article 226 (1) empowers the Hon’ble High Court, throughout the territories about which it
exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any
Government, within those territories directions, orders or writs including writs like habeas
corpus mandamus, prohibition, quo warranto and certiorari, for the enforcement of any of the
rights conferred by Part III of the Constitution and for any other purpose (i.e. for enforcement
of Constitutional rights other than fundamental rights and legal rights under other statutes).

As per Article 12, the state includes the Govt, and Parliament of India the Govt, the
legislature of each o the States and all local or other authorities within the territory of India or
under the category of the Govt, of India, and Article 13 (2) says that the State shall not make
any law, which takes away or abridges the rights conferred by this part and any law made in
contravention of clause (2) of Article 12, shall to the extent of the Contravention be void.

The law includes any ordinance, order by-laws, rule, regulation, notification, custom or usage
having in the territory of India the force of law.

As per Article 53 executive power of the Union is vested in the President and is exercised by
him either directly or through officers Sub-ordinate to him and similarly, as per Article 154,
the executive power of the State is vested in the Governor and is exercised by him either
directly or through officers subordinate to him by the Constitution.

Thus the laws made by the Parliament in respect of matters in the ‘Union’ and ‘Concurrent’
list or the State Legislature in respect of matters in the ‘State’ and concurrent list, or any
conduct or action or inaction of the Government through its Officers can be fundamental,
constitutional or legal rights of the petitioner, in appropriate proceedings praying- for writs.

In English common law ‘prerogative writ’ referred to extraordinary writs granted by the
Sovereign, as a fountain of justice, on the ground of inadequacy of legal remedies. In course
of time, writs came to be issued by the High Court of Justice, as the agency through which
the Sovereign exercised his judicial powers and these prerogative writs were issued as
extraordinary remedies in cases where either no remedy was available under the ordinary law
or the remedy available was inadequate. These writs are habeas corpus, mandamus,
prohibition, certiorari and quo warrants.

II
Writ Petition and Fundamental Rights
Under the Indian legal system, jurisdiction to issue 'prerogative writs' is given, at present, to
the Supreme Court of India and the High Courts of Judicature of all Indian States. Parts of the
law relating to writs are outlined in the Constitution of India. The Supreme Court, the highest
Court in the country, may issue writs under Article 32 of the Constitution for enforcement of
Fundamental Rights, and under Article 139 for enforcement of rights other than Fundamental
Rights, while High Courts, the superior courts of the States, may issue writs under Articles
226. The Constitution broadly provides for five kinds of "prerogative" writs: habeas corpus,
certiorari, mandamus, quo warranto and prohibition (http:/I en.wikipedia.org/wiki/Writ).

Part III of the Indian Constitution provides for fundamental rights, Articles 12- 35. These
rights are broadly classified into the following types. , Right to Equality Right to Freedom
Right against Exploitation Right to Freedom of Religion Cultural and Educational Rights.

Right to Freedom
i) Article 19: Protection of certain rights regarding freedom of speech, etc.
- Freedom of speech and expression
- Assemble peacefully
- Form associations
- Move freely
- Reside and settle
- Practice any profession
ii) Article 20: Protection in respect of conviction for offences:
- No one shall be convicted of any offence except for violation of the law
- Protection from double jeopardy
- No one can be compelled to be a witness against themself.
iii) Article 21: Protection of life and liberty: No one shall be deprived of his life or
personal liberty except according to a procedure established by law.
iv) Article 22: Protection against arrest and detention in certain cases.

Right against Exploitation

i) Article 23: Prohibition of traffic in human beings and forced labour.
ii) Article 24: Prohibition of employment of children in factories, etc.
Right to Freedom of Religion
i) Article 25: Freedom of conscience and free profession, practice and propagation
of religion.
ii) Article 26: Freedom to manage religious affairs: Subject to public order, morality
and health, every religious denomination or any section thereof shall have the
right:
a) to establish and maintain institutions for religious and charitable purposes;
b) to manage its own affairs in matters of religion;
c) to own and acquire movable and immovable property; and
d) to administer such property in accordance with law.
iii) Article 27: Freedom as to payment of taxes for promotion of any particular
religion: No person shall be compelled to pay any taxes, the proceeds of which are
specifically appropriated in payment of expenses for the promotion or
maintenance of any particular religion or religious denomination.
iv) Article 28: Freedom as to attendance at religious instruction or religious worship
in certain educational institutions.

Right to Constitutional Remedies

i) Article 32: Remedies for enforcement are as follows. of rights conferred by this
Part:
- The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.
- The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
rrrarrclnto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part.
- Without prejudice to the powers conferred on the Supreme Court by
clauses (1 ) and (2), Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).
- The right guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution.
 III
Who can Issue Writs?

The main intention of the Constitution of India in respect of fundamental rights is to protect
individuals from the arbitrary action of the State or others. Writs - can, therefore, be
considered an important instrument used by the aggrieved against the State or other violators.
The aggrieved can approach the Supreme Court under Article 32 or they can approach the
High Court under Article 226.

Writ Jurisdiction of the High Court

The High Court's jurisdiction is laid down under Article 226 of the Constitution of India and
is as follows.
Article 226: Power of High Courts to issue certain writs: It is as follows.

1) Notwithstanding anything in Article 32, every High Court shall have power,
throughout the territories about which it exercises jurisdiction, to issue to any person
or authority, including in appropriate cases, any Government, within those territories
directions, orders or writs, including writs like habeas corpus, mandamus, prohibition,
quo warranto and certiorari, or any of them, for the enforcement of any of the rights
conferred by Part I11 and for any other purpose.
2) The power conferred by clause (I) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction about the territories within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the seat of such
Government or authority or the residence of such person Writs as Remedies is not
within those territories.
3) Where any party against whom an interim order, whether by way of injunction or stay
or in any other manner, is made on, or in any proceedings relating to, a petition under
clause (I), without:
a) furnishing to such party copies of such petition and all documents in support of
the plea for such interim order; and
b) giving the such party an opportunity of being heard,
 makes an application to the High Court for the vacation of such order and
furnishes a copy of such application to the party in whose favour such order has
been made or the counsel of such party, the High Court shall dispose of the
application within a period of two weeks from the date on which it is received or
from the date on which the copy of the such application is so furnished, whichever
is later, or where the High Court is closed on the last day of that period, before the
expiry of the next day afterwards on which the High Court is open; and if the
application is not so disposed of, the interim order shall, on the expiry of that
period, or, as the case may be, the expiry of the said next day, stand vacated.
4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme Court by clause (2) of Article 32.

The distinction between Articles 32 and 226: Article 32 can be exercised for the
enforcement of fundamental rights only, but Article 226 can be exercised not only for
the enforcement of fundamental rights but also for the enforcement of rights other
than fundamental rights. Thus, the writ jurisdiction of High Courts under Article 226
is wider than the writ jurisdiction of the Supreme Court under Article 32. According
to Dr Ambedkar, the right to Constitutional remedy is the heart and soul of the
Constitution. The Constitution of India incorporated a long list of fundamental rights
and also provided for an effective remedy under Articles 32 and 226 for the
enforcement of these rights. Enforcement of fundamental rights itself is a fundamental
right under the Constitution (Article 32) and must be sought within a reasonable time.
 IV
Types of Writs: Who can Seek Writs, When and with what Effect?

Fundamental rights are enforced by way of filing writ petitions in the appropriate courts. The
writs issued are of the following types.
 The writ of habeas corpus is issued to a detaining authority, ordering the detainer to
produce the detained person in the issuing court, along with the cause of his or her
detention. If the detention is found to be illegal, the court issues an order to set the
person free.
 The writ of mandamus is issued to a subordinate court, an officer of the government,
or a corporation or other institution commanding the performance of certain acts and
duties.
 The writ of certiorari is issued to a lower court or anybody exercising quasi-judicial
authority directing that the record of a case be sent up for review, together with all
supporting files, evidence and documents, usually to overrule the judgment of the
lower court or the decision of the body/authority concerned. It is one of the
mechanisms by which the fundamental rights of the citizens are upheld.
 The writ of prohibition is issued by a higher court to a lower court or a quasi-judicial
authority prohibiting it from taking up a case because it falls outside its jurisdiction.
Thus, the higher court transfers the case from the lower court to itself.
 The writ of quo warrant is issued against a person who claims or usurps a public
office. Through this writ, the court inquires 'by what authority the person supports his
or her claim.

Writ of Habeas Corpus

Writ of habeas corpus is a Latin phrase, which can be translated as "We command that you
have the body". It means, you have the body and produce it before the Court. The object of
this writ is to release a person who is illegally detained. It secures the release of a person
from illegal detention either in prison or in private custody. According to law, no person shall
be detained unlawfully. The Court can direct to have the body of the person detained be
brought before it to ascertain whether the detention is legal or illegal. If a person who is
arrested is not produced before the Magistrate within 24 hours from the time of arrest, he will
be entitled to be released on the writ of Habeas Corpus. It can be issued against any private
person or executive authority. The disobedience of this writ amounts to contempt of Court
and is punishable.
i) Conditions: For this writ, the following conditions must be fulfilled.
 There must be illegal detention of a person.
 The detention must be illegal at the time of filing the petition.
 The detention must be unwarranted by law.
ii) Who can apply for a writ of Habeas Corpus?
 A person who has been detained illegally,
 A prisoner himself whose detention is illegal, or
 Any person on behalf of the detainee/prisoner.
iii) When a writ of Habeas Corpus is not issued?
 If the detention has been made by law and procedure.
 Where the person against whom the writ is issued or the person who is
detained is not within the jurisdiction of the Court.
 If a person has been imprisoned by a Court of law on a criminal charge.
 If the proceedings interfere with a proceeding for contempt by a Court of
record or by Parliament.

o In the A. D. M. Jabalpur v S. Shukla case, popularly known as the 'Habeas Corpus

Case ', the Court held that if the enforcement of Article 2 1 is suspended by the
Presidential Order under Article 359, the detenue shall not have the right to file a writ
petition challenging the legality of detention. However, after the 44" amendment of
the Constitution the rule passed in Habeas Corpus Case is no longer a good law.
According to the present position, even the Presidential Order cannot suspend the
right to life and liberty under Article 21.
o In Sunil Batra v Delhi Administration, the solitary confinement imposed on Sunil
Batra and Charles Sobhraj, who were under sentence of death was challenged as
violative of Articles 14,19,20 and 21 of the Constitution. The Court treated their letter
as a writ petition. The Court held that a writ of Habeas Corpus can not only be granted
for releasing a person illegally detained but also it will be used for protecting him
from ill-treatment inside jails.
 o In Kanu Sanyal v District Magistrate, Darjeeling, Kanu Sanyal, a top-ranking
Naxalite leader was arrested and detained without trial in Visakhapatnam jail. He
challenged the validity of his detention and filed a writ of Habeas Corpus. The Court
issued necessary directions and held that the production of the body of the person
detained before the Court was not necessary for hearing and disposing of the writ
petition under Article 32.
o In Bhim Singh v State of J & K, Bhim Singh, an MLA of State of J & K was
wrongfully arrested and detained at the police station and was prevented from
attending the State Legislative Assembly. The Court awarded a sum of Rs.50,000 to
the petitioner as compensation for the violation of his Constitutional right of personal
liberty under Art. 21.

Writ of Mandamus
A writ of mandamus, which in Latin means "we command, or sometimes "we mandate", is
the name of this prerogative writ in the common law. It is issued by a superior court to
compel a lower court or a government officer to perform mandatory or purely ministerial
duties correctly.

Mandamus means 'the order'. Mandamus is an order by the Supreme Court or High Courts to
any public authority to do or not to do something like a public duty. It is issued against
persons or authorities who fail to perform their mandatory duties. To issue a writ of
mandamus, the officer must have a public duty and must fail to perform such duty. The
applicant of this writ must also have the right to compel the performance of some duty cast
upon the authority.

In the State of M. P v G C. Mandawara, it was held that a licensing officer must issue
licences to the persons who fulfil the necessary conditions. Despite the fulfilment of all the
necessary conditions by the applicant, if the licensing officer fails to issue a licence, the
aggrieved applicant has a right to seek the remedy through a writ of mandamus. The object of
the writ of Mandamus is to compel the performance of public duties prescribed by the
Statute.

i) Conditions: For this writ, the following conditions must exist.

  Writs as Remedies There must be a public duty upon the respondent.
 The petitioner must have the legal right to compel the performance of
public duty.
 Such duty must be mandatory duty cast by law.
 The petitioner must have demanded the performance of such duty.
 The public authority must have failed to perform or refused to perform the
pubic duty (Saraswati Industrial Syndicate Ltd. v Union of India).

ii) Against whom Mandamus is issued?

 Against public authorities and institutions.
 Against officers exercising public functions.
 Against Government and public corporations.

In Gujarat State Financial Corporation v M/sLotus Hotel Pvt. Ltd. case, the Corporation
established under the State Financial Corporation Act, 195 1 had agreed with Lotus Hotels to
provide finance on long-term credit and failed to release the funds. The Court issued the writ
of Mandamus and directed the Corporation to release the funds as per the agreement.

iii) When a writ of Mandamus is not issued?

 When the duty is merely discretionary in nature (State of M. P v

Mandawara).
 The Writ of Mandamus cannot be issued against private individuals or
private organisations because they don't have a public duty (Barada Kanta
v State of West Bengal).
 The Writ of Mandamus cannot be granted to enforce a duty arising out of a
contract. (Bihar EGF Co-operative Society v Sipahi Singh).

In Manjula v Direct, Public Instructions, the petitioner published a book namely 'Ama
Ithihasa Gapa' and filed a writ of Mandamus to compel the director, Public Instructions to
include her book in the list of books approved for the schools. The writ was not granted
on the ground that the choice of the textbooks was a matter entirely left to the discretion
 of the DPI and the DPI was not under a duty to include the petitioner's book in the
approved list.

Writ of Certiorari
It is an Order by the Supreme Court or the High Courts to an inferior Court to remove a suit
from such inferior Court and adjudicate upon the validity of the proceedings or to quash the
Orders of the inferior Court. The Writ of Certiorari can be issued not only against any inferior
Courts but also against a body exercising judicial or quasi-judicial functions. This writ is
issued under the supervisory or original jurisdiction and not under appellate jurisdiction.

i) Conditions: these include the following.

 There must be a want or access of jurisdiction.
 Principles of natural justice must be violated.
 There must be an error of law on the face of the judicial record.
ii) When can a writ of Certiorari be invoked or granted?
 Before the trial prevent an excess or abuse of jurisdiction and remove the
case for trial to a higher Court.
 After trial to quash an order which has been made without jurisdiction or
in violation of the principles of natural justice.

In other words, whenever anybody of the persons having legal authority to determine
questions affecting the rights of the subject and having the duty to act judicially, acts more
than their legal authority, a writ of certiorari can be granted.

iii) Who can apply for a writ of Certiorari?

 Any person whose fundamental right is violated can apply for a writ of
Certiorari.
iv) Against whom a writ of Certiorari is issued?
 Inferior Courts, and
 A body exercising judicial or quasi-judicial functions.
v) Against whom a writ of Certiorari cannot be issued?
  Against a private individual or body of private persons (A. Ranga Reddy v
General Manager; Co-op Electric Supply Society Ltd).
vi) When a writ of Certiorari cannot be granted?
 To remove ministerial acts.
 To remove or cancel executive acts.
 To declare an Act as unconstitutional or void.
In the case of Rafiq Khan v State of UP, the Magistrate maintained the conviction of the
accused as passed by a Panchayat Adalat which is no1 authorised under Section 85 of the U.
P. Panchayat Raj Act, 1947. Hence, the High Court quashed the conviction by a writ of
certiorari.

In G Nageshwara Rao v A.P.S.R.T.C, the Secretary, APSRTC invited objections for the
nationalisation of motor transport in the State. The petitioner who was running the transport
business filed his objections, but the Secretary did not pay attention to them. Moreover, the
secretary himself was the adjudicating authority and thus violated the principles of natural
justice. Hence, the Supreme Court issued a writ of Certiorari against the Secretary.

Writ of Prohibition
Prohibition means 'to prevent'. Each Court is expected to act within the limits of its
jurisdiction. A writ of prohibition is issued to prevent an inferior Court or Tribunal from
exceeding its jurisdiction, which is not legally vested, acting without jurisdiction or acting
against the principles of natural justice. The writ of Prohibition can be issued not only against
the Courts but also against the authorities exercising judicial or quasi-judicial functions.

o In East India Commercial Co. v Collector of Customs, the Court compelled

the inferior court to keep itself within the limits of jurisdiction.

i) Who can apply for the Writ of Prohibition?

 The person whose right is violated can apply for the writ of prohibition.
ii) When can a Writ of Prohibition be granted?
 When the inferior Court or quasi-judicial authority exceeds its jurisdiction.
 When the inferior Court acts without lawful jurisdiction.
  When the inferior Court or quasi-judicial authority acts against the rule of
natural justice.
 When there is an apparent error on the face of the judicial record.
iii) When is the Writ of Prohibition not issued?
 When the Court acts within its lawful jurisdiction.
 When the Court observes principles of natural justice.

Writ of Quo Warranto

Quo warranto means 'What is your authority?' It is an Order questioning the authority of a
person holding a public office. It is issued against the holder of a public office calling upon
him to show with what authority he holds such office. The object of this writ is to control the
executive action in making appointments to public offices and also to protect the public from
usurpers of public offices.

i) Conditions: These include the following.

 The office must be a public office.
 The office must be substantive in character with an independent title.
 The respondent must not be legally qualified to hold public office.
 The respondent must have held the office against the law.
ii) Who can file a Writ of Quo Warranto?
 Any member of the public can file a writ of Quo Warranto, whether any
right of such person has been infringed or not (Venkataraya v Sivarama,
1965, p.491).
iii) When Writ of Quo Warranto is not issued?
 When the office is private.
 When the holder of the office is qualified to hold that office.
 When the holder subsequently gets qualified for the office.
 When the issue of writ becomes futile. It means that the writ does not
serve any purpose.
o In Jamalpur Arya Samaj Sabha v Dr D. Ram, the member of the Working
Committee of the Bihar Arya Samaj Sabha held the office for more than the
 prescribed tenure. The High Court refused to issue a writ of Quo Warranto on
the ground that it was a private association.
o In K. Bhima Raju v State of Andhra Pradesh, the Government pleader was
appointed against the rules. The petitioner filed a writ of Quo Warranto. The
High Court quashed the appointment of the Government Pleader on the
ground that the appointment was not made by the rules.
o In Ishwar Chand Jain v High Court of P & H, the appellant was posted as
Additional District and Sessions Judge at Hissar. On happening of certain
incidents the Bar Association passed a resolution against the appellant, which
resulted in his transfer from Hissar to Narnaul. Thereafter, High Court
conducted an inquiry and found the appellant's conduct was bad. Hence, the
High Court resolved and recommended to the State Government to terminate
the appellant's service. The Supreme Court held that the order of the High
Court was liable to be set aside because the complaints against the appellant
were made on trifling matters without any justification.