Published on: August 16,2021 12:45 IST
Introduction
Individuals have the right under Article 32 of the Indian Constitution to petition the Supreme Court for justice if they believe their rights have been “unduly deprived.” As the “protector and guarantor of Fundamental Rights,” the Supreme Court has the authority to issue directions or orders for the execution of any of the rights conferred by the constitution.
Article 32 of the Constitution allows the parliament to entrust any other court with the power of the Supreme Court, if it is within its jurisdiction. The rights guaranteed by this Article cannot be suspended unless the Constitution is amended.
As a result, we can conclude that this article provides individuals with an assured right to enforce fundamental rights, as the law allows an individual to directly approach the Supreme Court without first going through the lengthy process of going through the lower courts, as the main purpose of Writ Jurisdiction under Article 32 is to enforce fundamental rights.
“If I were asked to name any particular article in this Constitution as the most important- an article without which this Constitution would be a nullity – I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it, and I am glad that the House has realized its importance.”
– Dr. B.R. Ambedkar
As Dr. Ambedkar has rightly pointed out that Article 32 is the most important article that gives the power of justice to the Hon’ble Supreme Court without any hassle by the public.
To understand how writs are filed in the Supreme Court we first need to understand what the types of writs under article are 32.
Types of writ under Article 32
There are five types of writs under Article 32 namely:
- Habeas Corpus – “You have the Body,” states one of the most important writs for personal liberty. The primary goal of this writ is to obtain relief from an individual’s unlawful detention. Its purpose is to protect individuals from being harmed by the administrative system, as well as to protect their freedom from arbitrary state action that violates their fundamental rights under Articles 19, 21, and 22 of the Constitution. In the event of unlawful detention, this writ provides immediate relief.
- Quo Warranto – The phrase “by what means” is implied by the Writ of Quo Warranto. This writ is used in cases involving public offices, and it is issued to prevent people from acting in positions to which they are not entitled. Even though the term “office” in this context differs from “seat” in the legislature, a writ of quo warranto can be issued against a Chief Minister who is holding an office, whereas a writ of quo warranto cannot be issued against a Chief Minister if the petitioner fails to show that the minister is not properly appointed or that he is not qualified by law to hold the office. It cannot be used against an Administrator appointed by the government to manage the Municipal Corporation after it has been dissolved. Any person can challenge his or her appointment to a public office, regardless of whether his or her fundamental or legal rights have been violated.
- Mandamus – In Latin, Writ of Mandamus means “We Command.” This writ is issued by a superior court to a lower court or government officer for the proper performance of mandatory and purely ministerial duties. The President and the Governor, however, are not subject to this writ. Its main goal is to ensure that the administration and the executive do not abuse their powers or duties and that they are carried out properly. It also protects the public from administrative bodies abusing their authority. The mandamus is “neither a writ of course nor a writ of right but that it will be granted if the duty is in nature of public duty and it especially affects the right of an individual, provided there is no more appropriate remedy”[1] The person filing a mandamus petition must be certain that he or she has the legal authority to compel the opponent to do or refrain from doing something.
- Certiorari – A Writ of Certiorari means “to be certified” in Latin. It is issued when there is an erroneous exercise of jurisdiction and the case is decided on that basis. The affected parties can take the writ to a higher court, such as the High Court or the Supreme Court. A Writ of Certiorari can be issued for a variety of reasons. Certiorari cannot be used to overturn purely administrative or ministerial orders; it can only be used to overturn judicial or quasi-judicial orders.
- Prohibition – It is a writ of mandamus that tells a lower court to stop doing something that the law forbids. Its main goal is to prevent a lower court from exceeding its jurisdiction or acting in a way that is inconsistent with Natural Justice rules. Superior courts issue it to a lower or subordinate court to prevent it from doing something that it is not allowed to do under the law. It is usually issued when lower courts act outside of their legal authority. It can also be issued if the court acts outside of its legal authority. The lower court is required to halt its proceedings after the writ is issued, and it should be issued before the lower court issues an order. Prohibition is a preventative measure. This is based on the principle that “prevention is better than cure.”
Process of filing a writ in the Supreme Court
A specific procedure must be followed to file a writ petition in either of the courts:
- To begin, the aggrieved party must present necessary documents such as proof of identity, proof of residence, photographs, and so on to a specific organisation.
- The petition is then written with the assistance of a lawyer. The draught includes the aggrieved party’s name and address, as well as the facts that led to the violation of his or her fundamental rights.
- Following this, the petition’s draught is sent to the court.
- The court will then set a hearing date, at which time it will accept the petition and send a notice to the other party. Following that, a date is set to ensure that both parties are present.
- Finally, after hearing both parties, the court renders a decision and grants relief.
Common drafting rules for filing of writs in Supreme Court
The filing of writs in the Supreme Court is governed by the Supreme Court Rules, 2019[2] that available of the Supreme Court website.
Every type of writ has different rules regarding filing but there are some common rules that every writ needs to be filed accordingly, namely:
- Every petition filed under Article 32 of the Constitution must be in writing and heard by a Division Court of at least five judges, with the exception that a petition that does not raise a substantial question of law concerning the Constitution’s interpretation may be heard and decided by a Division Court of less than five judges, and during vacation, by the Vacation Judge sitting alone.
- All interlocutory and miscellaneous applications connected with a petition under Article 32 of the Constitution may be heard and decided by a Division Court of less than five Judges, or by the Vacation Judge sitting alone during vacation, notwithstanding that the petition raises a substantial question of law as to the Constitution’s interpretation.
- On habeas corpus or other petitions under Article 32 of the Constitution arising out of criminal proceedings, or in proceedings connected with such petitions, no court fees shall be payable.
Filing of Habeas corpus in the Supreme Court
To file a writ of habeas corpus in the Hon’ble Supreme Court the following needs to accompany the petition that the lawyer has already drafted:
- A petition for a writ of habeas corpus must be accompanied by an affidavit signed by the person who is being held in custody, stating that the petition is being filed on his behalf and describing the nature and circumstances of the hold.
- The petition shall be filed with the Court for preliminary hearing, and if the Court determines that there is a prima facie case for granting the petition, rule nisi shall be issued, directing the person or persons against whom the order is sought to appear on a date to be specified therein to show cause why such order should not be made, and to produce in Court the body of the petition.
- Where the person restrained is unable to make the affidavit due to the restraint, the petition must be accompanied by an affidavit to that effect signed by another person familiar with the facts, which must state the reason why the person restrained is unable to make the affidavit.
- The petition must state whether the petitioner has sought similar relief from the High Court in question, and if so, what the outcome was.
- If no cause is shown or if cause is shown and disallowed, the Court shall issue an order releasing the person or persons improperly detained on the return day of such rule or any day to which the hearing thereof may be adjourned. The rule shall be discharged if cause is shown and allowed. The Court’s order for release shall be sufficient warrant for the release of the person under restraint to any gaoler, public official, or other person.
- The Court may, in its discretion, make any order it deems just in the case of any rule, if there are any issues.
Filing of Mandamus, Prohibition, Certiorari, Quo-warranto in the Supreme Court
To file the above writs in the Hon’ble Supreme Court the following things need to be kept in mind:
- A petition for a direction, order, or writ, including writs of mandamus, prohibition, quo warranto, or certiorari, must include the petitioner’s name and description, the nature of the fundamental right infringed, the relief sought, and the grounds on which it is sought, as well as an affidavit verifying the facts relied on and at least three copies of the petition. The petition must also state whether the petitioner has sought similar relief from the High Court in question, and if so, what the outcome was.
- The petition will be filed with the Court for a preliminary hearing and orders regarding the respondent’s notice. Upon hearing, the Court shall dismiss the petition if satisfied that no fundamental right guaranteed by the Constitution has been infringed upon or that the petition is otherwise untenable; if not, the Court shall issue a rule nisi to the respondent, directing him to show cause why the order sought should not be made, and shall adjourn the hearing for the respondent to appear an additional time.
- If the Court orders the Respondent to be served with a show cause notice after a preliminary hearing, he has 30 days from the date of receipt of the notice to file his objections, or 2 weeks before the hearing date, whichever comes first, unless the Court directs otherwise.
- Following the issuance of the order for a rule nisi, the Court may, if it so desires, grant the petitioner such ad-interim relief as the justice of the case may require, on such terms as it deems just and proper.
- The rule nisi, along with a copy of the petition and the affidavit in support thereof, must be served on the respondent not less than twenty-one days before the returnable date, unless the Court orders otherwise. The rule must be served on all persons directly affected as well as any other persons directed by the Court.
- Affidavits in opposition must be filed in the Registry at least four days prior to the returnable date, and affidavits in reply must be filed within two days of the affidavit in opposition being served.
- The petitioner must file a written brief prepared in the following manner within four weeks of the filing of the pleadings:
- The brief must begin with a summary of the pleading necessary for the decision of the points in issue. This should normally be no more than two pages long.
- Following that, the petitioner must formulate propositions of fact and law to be advanced at the hearing, citing authorities such as textbooks, statutory provisions, regulations, ordinances or bye-laws, or orders to be relied on under each of those propositions. If official reports are available, they should be referred to when making decisions. In the case of textbooks, if possible, the most recent edition should be referred to.
- The contesting respondent must file his written brief within four weeks of the petitioner’s written brief being served on him, setting out briefly the grounds on which he opposes each of the petitioner’s propositions. He must cite such authorities as he may seek to rely on under each of those grounds, in the same manner as the petitioner is required to do. The respondent may raise objections to the petition’s maintainability or sustainability, as well as any relief sought therein, in the form of propositions supported by authorities in the manner described above, in his written brief.
- Within one week of receiving the respondent’s brief, the petitioner may file a reply brief that is concise and to the point in response to the respondent’s points raised in the respondent’s brief.
- Copies of affidavits and briefs required to be filed under this rule must be served on the opposing party or parties, and the affidavits or briefs will not be accepted in the Registry unless such party or parties sign an endorsement of service. Any party to the proceeding must provide copies of any affidavit or brief filed by him to any other party upon demand and payment of the proper fees. Affidavits and briefs must be lodged in at least seven copies.
- If the Court finds any of the propositions made or grounds asserted by any of the parties in their written briefs to be irrelevant or frivolous, the Court may award such party or parties such costs as it sees fit.
- No party shall be allowed to advance any proposition or urge any ground not taken in the written briefs, nor shall any party be allowed to rely on any authorities (including provisions of statute, rule, bye-law, regulation, or order) other than those mentioned in the briefs, unless such authorities or provisions have been published, except with the special permission of the Court.
- If the Court believes that the parties should be given an opportunity to establish their respective cases by leading additional evidence at the rule nisi hearing, the Court may take such evidence or cause such evidence to be taken in any manner it deems fit and proper.
- A party to a petition filed under this rule is not entitled to have his or her written brief heard by the Court unless he or she has previously filed a written brief in the petition.
Conclusion
Citizens have constitutional remedies in the form of powerful orders that take effect immediately. And the writs are usually issued when PILs are filed, and they are mostly used against the state. The Constitution confers Writ Jurisdictions that have prerogative powers and are discretionary in nature, but they are unbounded in their scope.
The discretion, on the other hand, is exercised in accordance with legal principles. As a result, in the absence of arbitrary power, the first essential on which the constitutional system is founded.
As a result, the decision must be based on sound principles and rules rather than on whims, fancies, or humour. And if a decision is made without reference to any principles or rules, it is considered arbitrary and not made in accordance with the rule of law.
Our constitution gives us a variety of rights. Fundamental rights are among the most important rights guaranteed by our constitution. These rights are necessary for individual development, as the name implies. Infringement of rights is possible because they are available.
To protect these rights, we have five types of writs that a person can file before a High Court or the Supreme Court, respectively, under Article 226 and Article 32.
References
- R. V. Dusheath (1950) 2 All ER 741 at pg. 743 as per Lord Goodard C.J. ↑
- main.sci.gov.in ↑