Understanding and Drafting with Confidence

Introduction

Writ petitions, under Article 32 and Article 226 of the Indian Constitution of 1950, are powerful tools for seeking orders or directions from the court against the government, its agencies, or public officials. They can challenge the validity of a law, prevent a court from proceeding without jurisdiction, or even unseat someone from public office if they are unlawfully occupying it. Most importantly, they serve to enforce fundamental rights when they are violated.

Now, filing a writ petition isn’t just about stating your grievance. It’s about how you present the facts, the grounds on which you’re challenging the action, and the specific relief or order you’re asking the court to grant. This isn’t just paperwork; it’s the foundation of your entire case. Therefore, drafting and filing the petition properly is just as crucial as the final judgment you’re hoping for.

Knowing how to draft and file writ petitions isn’t just another legal skill; it’s a game-changer. For lawyers and law students, mastering this tool is crucial as it can challenge governmental actions, protect fundamental rights, and bring about real change. It empowers individuals to question authority and seek justice when no other remedy seems available.

How to File a Writ Petition: Step by Step

Step 1: Draft the Petition

Begin drafting the Writ Petition in the appropriate format. Clearly outline the facts, the grounds for filing, and the specific relief you seek. This serves as the foundation of your case, so ensure it is precise and persuasive.

Step 2: Get Signatures and Attestation

Both the advocate and the client must sign every page of the petition. Furthermore, the accompanying affidavit needs to be notarized. These signatures validate the document and confirm its authenticity.

Step 3: Execute the Vakalatnama

The client must sign the Vakalatnama, authorizing the advocate to represent them in court. Without this, the lawyer can’t act on the client’s behalf in the case.

Step 4: File the Petition

You can do this in two ways:

1. Online: Upload the Writ Petition to the concerned High Court’s website. Once uploaded, you’ll receive a diary number or filing number.
2. Physical Filing: Alternatively, submit a hard copy to the court’s registry.

Step 5: Address Defects (if any)

The Court’s registry will review the petition and notify you of any defects, such as missing details or formatting errors. These must be corrected, and the petition must be resubmitted.

Step 6: Obtain the Petition Number

After fixing the defects, the petition gets a unique number, like WP(C) for civil matters or WP(Crl) for criminal cases. This number is used to track the case in court.

Step 7: Submit Hard Copy (if required)

In some cases, a hard copy must be filed even if the petition was submitted online. Be sure to check the specific rules of the High Court.

Step 8: Wait for Listing

Once everything is in order, the case is listed before the Court for arguments. This marks the beginning of the hearing process.

Step 9: Notice Issuance

If the Court issues a notice, the petitioner’s advocate must file Process Fees. The notice is then served to all Respondents, informing them of the case.

Step 10: Respondents’ Counter Affidavit

The Respondents will file their counter affidavit or reply, presenting their side of the argument.

Step 11: Preliminary and Final Hearing

The case first goes for a Preliminary hearing. After that, detailed hearings follow, where arguments are made, and evidence is examined.

And that’s the complete process! By mastering these steps, you’ll be well-prepared to file and argue a Writ Petition in court effectively.

Kinds of Reliefs You can Seek (and Illustrations)

Mandamus



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What is a Writ of Mandamus?

A writ of mandamus is essentially a court order that directs a government authority, institution, or corporation to carry out a specific duty they are legally obligated to perform but have failed to do. It does not involve requesting them to change their decision but focuses on compelling them to act as required.

A writ of mandamus can be issued by the court in the following cases:

• Against a public official to compel them to perform a legal duty.
• Against a public corporation, tribunal, or inferior court to enforce compliance with the law.
• Against the government when it fails to fulfill a statutory obligation.

However, it cannot be issued:

• Against private individuals or entities.
• Against the President or Governors of States.
• Against a sitting Chief Justice.

There are also certain situations where a mandamus won’t apply, such as:

• If the duty in question is discretionary rather than mandatory.
• If it relates to a non-statutory function (i.e., something not required by law).
• If the duty concerns purely private rights rather than public obligations.
• If issuing such a direction would violate any existing law.
• If there’s another legal remedy available to address the issue.

Essentially, mandamus is meant to ensure public authorities do what they’re legally bound to, nothing more, nothing less!

To file a writ of mandamus, you need to prove either:

1. You have a legal right to demand that the authority performs a certain duty, or
2. You have a substantial personal interest in them performing that duty.

Example 1: Appointment as District Judges

Imagine your clients were selected for the post of District judges from a panel recommended by the High Court, but the State Government hasn’t appointed them yet. In this case, you can file a writ of mandamus asking the court to direct the State Government to make the appointments.

Prayer:

“Wherefore, the Petitioners respectfully pray that this Hon’ble Court may graciously be pleased to issue an appropriate Writ, order (s) or direction(s):-

a. A writ of mandamus or an order in the nature of a writ of mandamus directing the Respondent No. 1 State Government to appoint the Petitioners selected by the High Court vide Notification No. 12345;

b. Pass any such other and further order(s) as this Hon’ble Court deems fit and proper in the facts and circumstances of the present case.”

Example 2: Request for Electricity Connection

Now, imagine someone purchases a property and takes possession of it, but the electricity company refuses to provide a connection. In this case, you can file a writ of mandamus requesting the court to order the electricity company to establish the connection.

Prayer:

“Wherefore, the Petitioners respectfully pray that this Hon’ble Court may graciously be pleased to issue an appropriate Writ, order (s) or direction(s):-

a. A writ of mandamus or an order in the nature of a writ of mandamus directing the Respondent No. 1 Electricity Company to immediately grant the electricity connection in Plot No. 1234, Building No.2, Lower Parel, Mumbai;

b. Pass any such other and further order(s) as this Hon’ble Court deems fit and proper in the facts and circumstances of the present case.“

Delay and laches in Mandamus

The Limitation Act doesn’t apply to mandamus, but the petition must be filed within a reasonable time, as unreasonable delay can lead to dismissal at the Court’s discretion.

Certiorari



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What is a Writ of Certiorari?

A writ of certiorari is used to get a lower court or tribunal to send its records to a higher court (like the High Court or Supreme Court) for review. If the higher court finds that the lower court acted without jurisdiction or made a serious error, it can quash the decision.

You can file a writ of certiorari on the following grounds:

1. The lower court acted without jurisdiction.
2. There are errors apparent on the face of the record.
3. The principles of natural justice were violated.
4. There was fraud, collusion, or perjury.

Example 1: Transfer Request Denied

Imagine your client is a state government employee who requested a transfer from Pune to Mumbai for personal reasons but was denied by the Maharashtra Administrative Tribunal. You can file a writ of certiorari challenging the Tribunal’s decision.

Prayer:

“Wherefore, the Petitioners respectfully pray that this Hon’ble Court may graciously be pleased to issue an appropriate Writ, order (s) or direction(s):-

a. A writ of certiorari or an order in the nature of a writ of certiorari setting aside the judgment and order dated 12.03.2021 passed by the Maharashtra Administrative Tribunal in OA No.123 of 2021;

b. To allow the request of the Petitioner to transfer in the post of Tehsildar from Pune to Mumbai;

c. Pass any such other and further order(s) as this Hon’ble Court deems fit and proper in the facts and circumstances of the present case.”

Example 2: Challenging Disciplinary Rules

Your client is undergoing disciplinary proceedings and contends that the rules applied are unconstitutional. The Inquiry Commission has also issued an unfavorable order. In this context, you can challenge both the rules and the order by employing a combination of mandamus and certiorari.

Prayer:

“Wherefore, the Petitioners respectfully pray that this Hon’ble Court may graciously be pleased to issue an appropriate Writ, order (s) or direction(s):-

a. A writ of mandamus or an order in the nature of a writ of mandamus declaring Rules 1 and 2 of the Disciplinary Rules as unconstitutional and ultra vires;

b. A writ of certiorari or an order in the nature of a writ of certiorari setting aside the order dated 12.03.2021 passed by the Inquiry Commission set up by the Respondent No. 1;

c. Pass any such other and further order(s) as this Hon’ble Court deems fit and proper in the facts and circumstances of the present case.”

Delay and Laches in Certiorari

There’s no fixed time limit to file a writ of certiorari, but it should be done without unnecessary delay. If there is a delay, you’ll need to explain the reasons, and the court will decide whether the delay is justified based on the facts of the case.

Habeas Corpus



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What is a Writ of Habeas Corpus?

A writ of habeas corpus is used to bring someone who is being unlawfully detained before a court. The purpose is to ensure that no one is held without legal justification, whether by the police or even a private individual. It’s about protecting personal liberty and getting a quick judicial review of the detention.

Example 1: Illegal Police Detention

Imagine that your friend has been picked up by the police without any explanation. They haven’t been arrested, questioned, or presented before a magistrate. In this situation, you can file a writ of habeas corpus to have them brought before the court.

Prayer:

“Wherefore, the Petitioners respectfully pray that this Hon’ble Court may graciously be pleased to issue an appropriate Writ, order (s) or direction(s):-

a. A writ of habeas corpus or an order in the nature of writ of habeas corpus directing the respondent-Police to produce the detenue before this Hon’ble Court;

b. Pass any such other and further order(s) as this Hon’ble Court deems fit and proper in the facts and circumstances of the present case.”

Example 2: Unlawful Custody by a Private Person

If someone is being illegally confined by a private individual, you can also file a writ of habeas corpus. In this case, you must provide the details of the private person and the missing person so that the Police and Court can take action.

Prayer:

“Wherefore, the Petitioners respectfully pray that this Hon’ble Court may graciously be pleased to issue an appropriate Writ, order (s) or direction(s):-

a. A writ of habeas corpus or an order in the nature of writ of habeas corpus directing the Respondent Police authorities to produce the detenue before this Hon’ble Court;

b. Pass any such other and further order(s) as this Hon’ble Court deems fit and proper in the facts and circumstances of the present case.”

Delay and Laches in Habeas Corpus

Even if there’s a short delay in filing the petition, relief can still be granted if it’s shown that the person is in wrongful confinement. An illegal detention is considered a continuous wrong, so the injury persists until the court provides a remedy.

Prohibition



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What is a Writ of Prohibition?

A writ of prohibition is used to stop a court or tribunal from overstepping its jurisdiction. It’s a preventive measure to make sure no authority acts beyond its legal powers. This writ can be issued if:

1. The authority is acting without jurisdiction or exceeding its jurisdiction.

Say, if a commercial court wiht pecuniary jursiction upto 25000 decides a case involving a subject matter of 1 lakh, then this write becomes a go-to for the aggrieved party.

2. There is a violation of principles of natural justice.

For example, if the case is decided without summoning the other party to plead their grounds, then this writ will be used.

3. The lower court or tribunal acts under a statute that is itself ultra vires.

For example, if a court is proceeding under Section 66A of the Information Technology Act, which was declared unconstitutional by the Supreme Court in Shreya Singhal v. Union of India, you can file a writ of prohibition to stop the trial.

Example: Trial Under Unconstitutional Law

Your client is being prosecuted under Section 66A of the IT Act, which is no longer valid. The Trial Court has issued a summons despite the provision being struck down. In this case, you can file a writ of prohibition to stop the proceedings.

Prayer:

“Wherefore, the Petitioners respectfully pray that this Hon’ble Court may graciously be pleased to issue an appropriate Writ, order (s) or direction(s):-

a. A writ of prohibition or an order in the nature of a writ of prohibition setting aside the notice dated 12.12.12. issued by the Ld. Court of Judicial First Class Magistrate, Thane.”

Delay and Laches in Prohibition

A writ of prohibition must be filed within a reasonable time. If there’s an undue delay, the petitioner might not get relief. What counts as “reasonable” depends on the specifics of each case.

Quo Warranto



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What is a Writ of Quo Warranto?

A writ of quo warranto questions the authority by which a person holds a public office. It challenges the legality of someone’s appointment to a government post. This writ can be issued if:

1. The office is of a public nature (a government position).
2. The office is created by a statute or the Constitution.
3. The person is occupying the public office illegally or without the required eligibility.

Example: Appointment of Vice-Chancellor

Imagine a Vice-Chancellor is appointed without following the necessary norms. If you want to challenge this appointment, you can file a writ of quo warranto.

Prayer:

“Wherefore, the Petitioners respectfully pray that this Hon’ble Court may graciously be pleased to issue an appropriate Writ, order (s) or direction(s):-

a. A writ of quo-warranto or an order in the nature of a writ of quo-warranto setting aside the notification dated 12.12.12 issued by the Appointing Authority appointing the respondent in the post of Vice Chancellor of the University;

b. Pass any such other and further order(s) as this Hon’ble Court deems fit and proper in the facts and circumstances of the present case.”

Delay and Laches in Quo Warranto

If the person is still occupying the office illegally, it gives a fresh cause of action every day. So, there’s no question of delay in filing this writ.

Want to Get Even Better? 

Here are some pretty useful video tutorials to know the knick-knacks of writing writ petitions even better:

1. Art of Drafting: Distinction Between Drafting of Plaints and Writ Petitions: Asim Pandya Senior Adv. (Beyond The CLC – here)
2. How to draft Writ Petitions: Tips and Tricks by Senior Advocate / Lawyer S. Sriram Sir on LCI (LawyersClubIndia – here)
3. Lecture No.6 | Drafting Writ Petition under Article 32 | Dr.P.V.Saravanaraja | AOR | Supreme Court (Dr.P.SARAVANA RAJA-LAW LIGHTS- here)