By Imperilex Legal
“In India, Layman holds more power than they know”
India is a democratic country often referred as “Mother of Democracy”. It means an ordinary person holds the power to challenge every rule/law/circulars and many more issued by Central or State Government on daily basis.The Constitution of India specifically mentions this right as a fundamental one.
Writ Petitions
Writ Petitions are plaint to enforce a fundamental or legal right of a layman against any public body which violates them. These petitions acts like a sword/shield against the public bodies which either try to go ultra vires to their assigned powers or infringe any fundamental or legal rights of a layman. These petitions are treated as sacrosants of Constitution of India which holds immense power to declare any act of public body unlawful and against the parliamantry enacted acts.
There are a total of 5 Writ Petitions having different natures, one each for different kinds of ultra vires acts.
Habeas Corpus
It is a kind of peititon which challenges unlawful detention of a layman by any public or private body. It is an only kind of Writ Petition which can be issued against Private Body.
Mandamus
This Writ Petition comes into force when a public body refuses to perform the tasks they are delegated by their resprective government.
Prohibition
The Prohibition is issue to hold the public bodies from performing works which are ultra vires or unlawful or works which their delegation do not allow them to peform.
Certiorari
This Writ often creates confusion not only between laymen but among lawyers also. This is a writ which protects layman against arbitrarty action of public body where the actions are judicial in nature.
Quo Warranto
The writ of Quo Warranto is issued against on a specific question which is “By what authority?”. It basically asks the public figure that under what authority, they are authorised to take actions.
(For detailed article on Types of Writ, Please visit www.ahrklegal.com blog page)
Invoking Writ Jurisdiction
A layman may invoke Writ jurisdiction of Hon’ble Courts by indentifying the appropriate nature of Writ in accordance to their problems. Below is 7 check points to help in invoking and identifying Writ jurisdiction :
1. Identify the Nature of Problem & Locus Standi
The most important step is to indentify the nature of problem to ensure the invoking of relevant Writ Jurisdiction. Study thoroughly to understand which Writ Jurisdiction would ensure the outcome of required relief. Locus Standi is Latin Maxim having meaning “the right/capicity to bring action” The layman whose rights are being infringed is the only person who can file the Writ (altough there is exceptions to this rule).
2. Gather Insights
Search on authentic websites & Ask people familiar with the Writ Jurisdiction to ensure that the invoked Writ is really what suit for situtation.
3. Check for avaiable remedy except Writ
Writs should be the last option to enforce rights like War is the last option for Countries after negotiations. Lodge Complaint with the appropriate Higher authority of public bodies, provide them with the overwhelming evidences that actions of this public body is ultra vires.
4. Ensure exhaustion of other remedies
Ensure to exhaust all the other remedies which are available against that public body. It builds a solid foundation to let the Hon’ble Court know either of availble remedies did not halt the actions of public body.
5. Draft Detailed Petition
A Writ Petition should be drafted in details contating material facts only and avoiding unneccesary facts which can cause Hon’ble Court to prevent from granting relief.
6. Attach relevant documents and proof of exhaustion of remedies
All the necessary documents should be attached with the Petition specially ensuring exhaustion of all other remedies.
7. File according to the procedural rules of Court
There are procedural rules framed by Hon’ble Courts which should be kept in mind while drafting and filing Petitions.
A Writ Petition having complied with these check boxes have a higher rate of success than filing without following these necessary steps.
Writ as a Sword
A Layman having faced with ultra vires actions of public body can bring action forward to protect rights granted by Law/rules/notifications etc… even without actually getting the rights infringed. A layman without any prior notice gets his house plan cancelled or a layman without specific reason expelled from employment from a public body or a layman having registered with any scheme to be paid a sum of rupees per month by a public body is not getting paid, these all actions can dealt with well drafted & executed Writ which would act like a sword to tear apart all the ultra vire acions of public body.
Writ as a Shield
A Writ is also be used as a thick iron shield protecting from the attacks of ultra vires actions of public bodies. A layman faced with the sudden demolition orders of resedential house or A layman faced with the threats of expelling from the employment under public body having ultirer motives, these all actions can dealt with well drafted & executed Writ which would act like a shield to create a protective barrier which cannot be periced by these arbitrary actions of public bodies.
Caution
Although Writs acts like Sword & Shield but even sword & shield can injure the person wielding them without precesion and set of skills required to wield it. A layman with ulterior motive trying to expand a fundamental or legal right by infringing fundamental or legal rights of other laymen or public body with no ultra viress act, acting under the delegation would be punished by Hon’ble Courts in many different ways. It is therefore advised to maintain the sacrosant nature of Writ Petitions and use them wisley in a way which would not backfired on them.
Conclusion
A Writ Petition is a sacrosant gift in nature of sword & shield from the framers of Constitution to ensure the enforcement of a fundamental & legal right of a layman and to control the public body exercisng its delegation with ulterior motives. The Writ should not be filed without exhaustion of all other availble remedies to a layman or otherwise would wound the wielder.