Article 226 of the constitution grants the High Court the authority to issue directives, orders, or writs to any individual or entity, including the government, in the form of habeas corpus, mandamus, prohibition, quo warranto, or certiorari.
We will explore the grounds on which individuals can file a writ petition. These grounds encompass a wide range of violations, including infringement of fundamental rights, illegal detention, and administrative injustice. We will examine case studies and real-life examples to illustrate how individuals have successfully utilised Article 226 to seek justice and redressal.
Thereafter, we will also discuss Article 227, which empowers the high courts to superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.
Various Writs Under Article 226
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Habeas corpus
Habeas corpus is a legal writ that requires someone who has been arrested for being brought before a judge or into court, typically to secure their release unless there is a lawful reason for their detention.
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Mandamus
Mandamus writ is issued as a command to an inferior court or ordering someone to perform a public or statutory duty. Quite similar to a bossy older sibling telling their younger sibling to clean their room because it's their duty as a member of the family. Except, in this case, the bossy older sibling is a court and the younger sibling is an inferior court or person who needs to perform a specific task.
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Prohibition
Prohibition is issued to prevent an inferior court or tribunal from exceeding its jurisdiction in cases pending before it or acting contrary to the rules of natural justice.
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Quo warranto
Quo warranto is a writ that is used to inquire into the legality of someone's claim to a public office. Like most legal terms, its origin lies in Latin, where it means ‘by what authority.’ It is used to stop the unauthorized occupation of a public office and is only applicable to public offices, not private offices. It's the legal equivalent of a parent intervening when an older sibling is bossing around their younger sibling.
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Certiorari
Certiorari is issued by the Supreme Court or a High Court to quash an order that has already been passed by an inferior court, tribunal, or quasi-judicial authority. The High Court has the power to issue this writ for the enforcement of fundamental rights under the Constitution of India or for any other legal rights.
Mandamus vs. Prohibition
| Mandamus | Prohibition | |
|---|---|---|
| Definition | A court order that requires a government official or entity to perform a specific duty or take a specific action. | A court order that prohibits a lower court or other governmental body from exceeding its jurisdiction or from continuing to take a particular action. |
| Purpose | To force a public official or entity to take a specific action. | To prevent a lower court or other governmental body from taking an unlawful or excessive action. |
| Examples | A writ of mandamus may be used to force a public official to fulfill their duties or to correct an abuse of discretion. | A writ of prohibition may be used to prevent a lower court from taking action that is beyond its authority or that would be unlawful. |
Certiorari vs. Prohibition
| Certiorari | Prohibition | |
|---|---|---|
| Purpose | Review a lower court or administrative authority’s decision | Prevent a lower court or administrative agency from exceeding its jurisdiction or authority |
| Issued by | Higher court | Higher court |
| Filed by | Any party affected by the lower court's decision | Any party affected by the lower court's actions |
| Time to file | Typically within a few months of the lower court's decision | Typically within a few months of the lower court's actions |
| Standard of review | Typically limited to determining whether the lower court made a legal error or exceeded its jurisdiction | Typically limited to determining whether the lower court exceeded its jurisdiction or authority |
Article 226 vs. Article 227
The scope of Article 226 is broader than that of Article 32, as it allows the High Court to issue orders and writs not only for the enforcement of fundamental rights but also for the enforcement of legal rights granted by statute.
One of the main differences between Articles 226 and 227 is that actions taken under Article 226 are carried out by the High Court using its original jurisdiction. In contrast, actions taken under Article 227 are purely supervisory in the role.
Moreover, the jurisdiction under Article 226 can only be exercised on behalf of an aggrieved party, while the supervisory jurisdiction under Article 227 can be exercised suo moto (on its own initiative).
The High Court does not have the authority to act as an appellate court when exercising its supervisory jurisdiction under Article 227 according to Indian laws. Still, it does have the power to correct errors or injustices that may have occurred in the decisions of lower courts or tribunals.
In the Chandigarh Administration v. Manpreet Singh case, the High Court's role was determined to be purely supervisory, rather than serving as an appellate authority over the orders and actions of subordinate authorities when operating under Article 226. The Supreme Court also discussed the circumstances under which each of these articles should be used, such as correcting errors of jurisdiction or keeping subordinate courts within their jurisdiction. In the case of Radhey Shyam & Anr vs. Chhabi Nath & Ors, the Supreme Court further clarified that the power under Article 227 should only be exercised in cases of grave injustice or failure of justice, and should not be used as an alternate remedy to appeal.
Who can file the writ petition?
A writ petition can be filed by any individual or organisation whose fundamental rights, as mentioned under Part – III of the Indian Constitution, or other legal rights are violated. It serves as protection against the infringement of these rights.
Where and When to File the Writ Petition?
For the violation of fundamental rights, the writ petition can be filed in either the High Courts or the Supreme Court. Under Article 32, an individual can file a writ petition in the Supreme Court if their fundamental rights have been violated.
Under Article 226, a person can approach the High Courts to file a writ petition when there is a violation of their fundamental rights. It is important to note that the authority against whom the writ petition is filed must be present within the territory of India for the petition to hold value.
It is not necessary to first approach the High Court and then the Supreme Court. When a person's fundamental rights are infringed, they can move to either court.
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Amto Tip:f you can approach either the high court or the supreme court for filing a writ petition, you should choose the high court first to keep your options open for later |
In the case of Vijai Raje Scindia vs. State of Uttar Pradesh, it was established that there is no specific time limit to file a writ petition in India. However, it is expected that the petition should be filed without any undue delay. If there is a delay, the court may require a valid justification for it. A reasonable delay can
Sample Template for Writ Petition in High Courts for Habeas Corpus, Mandamus, Prohibition, Quo Warranto or Certiorari
IN THE HON’BLE HIGH COURT OF
JUDICATURE
AT_________ Writ Petition No_________ of _________20
_________ Under
Article 226 of the Constitution of India
……………PETITIONER
VERSUS
……………RESPONDENTS
To
The Hon’ble Chief Justice and His Companion Judges of the
aforesaid
Court.
The humble petition of the Petitioner above named
respectfully
showeth:
Facts
Question(s) of law
Grounds
When it comes to filing a writ petition, individuals must have valid grounds that warrant judicial intervention. While the specific grounds may vary depending on the jurisdiction and the nature of the case, there are some common grounds on which individuals can file a writ petition.
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Violation of Fundamental Rights or Any Other Legal
Right
One of the primary grounds for filing a writ petition is the violation of fundamental rights granted under the Constitution or any other legal right granted under any statute. If an individual believes that their fundamental rights have been infringed upon, they can approach the court through a writ petition to seek redressal. -
Illegal or Arbitrary Actions
Writ petitions can also be filed when there is an allegation of illegal or arbitrary actions by a public authority. In that case,or an organisation. If a decision or action lacks statutory backing, goes against established legal principles, or is taken without proper authority, it may be considered illegal or arbitrary. In such cases, individuals can seek judicial intervention through a writ petition. -
Errors of Jurisdiction or Procedure
Errors of jurisdiction or procedure can provide grounds for filing a writ petition. If a decision-maker exceeds their jurisdiction or fails to follow the prescribed procedure while making a decision, it can render the decision void or illegal. Individuals affected by such errors can approach the court through a writ petition to have the decision reviewed or set aside. -
Unconstitutional Legislation or Government Actions
When a law or government action is believed to be unconstitutional, individuals can challenge its validity through a writ petition. In such cases, the court examines the constitutionality of the legislation or action and may strike it down if found to be in violation of the constitution. This serves as an important mechanism for safeguarding the constitutional framework and ensuring the supremacy of the constitution. -
Lack of Accountability or Abuse of Power
Another ground for filing a writ petition is the lack of accountability or abuse of power by public authorities or organisations. Suppose an individual believes that a public authority or organisation has acted beyond its powers, misused its authority, or failed to be accountable for its actions; they can seek judicial intervention through a writ petition to hold the concerned parties accountable.
PRAYER
In view of the above premises, it is prayed that this Hon’ble Court may be pleased:
………………………………………………………………
To pass such other orders and further orders as may be deemed necessary on the facts and inthe circumstances of the case.
FILED BY:
PETITIONER-IN-PERSON
DRAWN:
FILED ON:
The writ petition should be accompanied by:
The affidavit of the petitioner, duly sworn.
Annexures referred to in the writ petition.
Court fee of Rs. 500 per petitioner (no court fee is payable in criminal matters).
Index.
Cover Page.
Any application to be filed, with a court fee of Rs. 120 per application.
Memo of appearance.
An application seeking permission to appear and argue in person (if the petition is filed by the petitioner in person), with a court fee of Rs. 120.
Sample Template for Writ Petition in Supreme Court for Habeas Corpus, Mandamus, Prohibition, Quo Warranto or Certiorari
IN THE SUPREME COURT OF INDIA
ORIGINAL JURISDICTION
CIVIL WRIT PETITION NO.OF 20......
IN THE MATTER OF
………… PETITIONER
VERSUS
………… RESPONDENTS
PETITION UNDER ARTICLE 32 OF THE INDIAN CONSTITUTION FOR
ISSUANCE OF
THE WRIT IN THE NATURE OF _________ UNDER ARTICLE _______ OF THE
INDIAN CONSTITUTION.
To,
The Hon’ble Chief Justice of India and his Lordship’s Companion Judges of the Supreme Court of India. The humble petition of the petitioner above named.
MOST RESPECTFULLY SHEWETH:
FACTS OF THE CASE
QUESTION(S) OF LAW
Grounds
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Violation of Fundamental Rights
One of the primary grounds for filing a writ petition before the Supreme Court under Article 32 is the violation of fundamental rights granted under our Constitution. If an individual believes that their fundamental rights have been infringed upon, they can approach the court through a writ petition to seek redressal. -
Illegal or Arbitrary Actions
Writ petitions can also be filed when there is an allegation of illegal or arbitrary actions by a public authority. In that case,or an organisation. If a decision or action lacks statutory backing, goes against established legal principles, or is taken without proper authority, it may be considered illegal or arbitrary. In such cases, individuals can seek judicial intervention through a writ petition. -
Errors of Jurisdiction or Procedure
Errors of jurisdiction or procedure can provide grounds for filing a writ petition. If a decision-maker exceeds their jurisdiction or fails to follow the prescribed procedure while making a decision, it can render the decision void or illegal. Individuals affected by such errors can approach the court through a writ petition to have the decision reviewed or set aside. -
Unconstitutional Legislation or Government Actions
When a law or government action is believed to be unconstitutional, individuals can challenge its validity through a writ petition. In such cases, the court examines the constitutionality of the legislation or action and may strike it down if found to be in violation of the constitution. This serves as an important mechanism for safeguarding the constitutional framework and ensuring the supremacy of the constitution. -
Lack of Accountability or Abuse of Power
Another ground for filing a writ petition is the lack of accountability or abuse of power by public authorities or organisations. Suppose an individual believes that a public authority or organisation has acted beyond its powers, misused its authority, or failed to be accountable for its actions; they can seek judicial intervention through a writ petition to hold the concerned parties accountable.
AVERMENT
That the present petitioner has not filed any other petition in any High Court or the Supreme Court of India on the subject matter of the present petition.
PRAYER
In view of the above premises, it is prayed that this Hon’ble Court may be pleased:
………………………………………………………………
To pass such other orders and further orders as may be deemed necessary on the facts and inthe circumstances of the case.
FILED BY:
PETITIONER-IN-PERSON
DRAWN:
FILED ON:
The writ petition should be accompanied by:
The affidavit of the petitioner, duly sworn.
Annexures referred to in the writ petition.
Court fee of Rs. 500 per petitioner (no court fee is payable in criminal matters).
Index.
Cover Page.
Any application to be filed, with a court fee of Rs. 120 per application.
Memo of appearance.
An application seeking permission to appear and argue in person (if the petition is filed by the petitioner in person), with a court fee of Rs. 120.
Conclusion
Articles 226 and 227 of the Indian Constitution give the power of judicial review to the High Courts and the Supreme Court, respectively. This means that they have the authority to examine the decisions of lower courts and government agencies to ensure that they are in accordance with the law. The jurisdiction of these articles is wide-ranging, but it should be exercised sparingly and only to correct errors of jurisdiction. It is not meant to re-examine pure findings of fact, which is the role of an appellate court. The power of revision, on the other hand, enables a court to assess the correctness, legality, or propriety of any decision or order made by an inferior court and to ensure that the proceedings of that court were conducted regularly. The jurisdiction of Article 226 cannot be used as a revision or appeal court when an alternative remedy, such as an appeal, is available to the person seeking to challenge a decision.
