14 August 2010
Under the Indian legal system, jurisdiction to issue ‘prerogative writs’ is given to the Supreme Court, and to the High Courts of Judicature of all Indian states. Parts of the law relating to writs are set forth in the Constitution of India. The Supreme Court, the highest in the country, may issue writs under Article 32 of the Constitution for enforcement of Fundamental Rights and under Articles 139 for enforcement of rights other than Fundamental Rights, while High Courts, the superior courts of the States, may issue writs under Articles 226. ‘Writ’ is eminently designed by the makers of the Constitution, and in the same way it is developed very widely and efficiently by the courts in India. The Constitution broadly provides for five kinds of “prerogative” writs, namely, Habeas Corpus, Certiorari, Mandamus, Quo Warranto and Prohibition. Basic details of which are as follows:
* The writ of prohibition is issued by a higher court to a lower court prohibiting it from taking up a case because it falls outside the jurisdiction of the lower court. Thus, the higher court transfers the case to itself. * 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 certiorari is issued to a lower court directing that the record of a case be sent up for review, together with all supporting files, evidence and documents, usually with the intention of overruling the judgement of the lower court. It is one of the mechanisms by which the fundamental rights of the citizens are upheld. * The writ of mandamus is issued to a subordinate court, an officer of government, or a corporation or other institution commanding the performance of certain acts or duties. * The writ of quo warranto 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.
For details Please see the article 226 of the constitution of India.
14 August 2010
A writ petition is a request to an appellate court to grant immediate relief from a trial court order. Writ petitions have very high hurdles to clear in any court, and are rarely granted.
Extraordinary -- Asking the appellate court to stop the trial courts' orders should only be done in extraordinary circumstances when there is no other remedy for the petitioner, says Laura Boudreau of Greines, Martin, Stein & Richland LLP. A writ petition indicates that your case needs to be addressed before the trial court's final judgment and before the regular appeals process begins.
Rarely Granted -- Writ petitions have exacting requirements, and are rarely granted. In 2004, lawyers in California filed more than 8,000 writ petitions statewide and 90 percent were denied.
A Winning Case -- Most successful writ petitions happen when there is a public or legal significance to the writ. According to Boudreau, some writs are granted because the petitioner shows that the trial court's sentence "imposes unusually harsh and unfair results for which ordinary appellate review is inadequate."
Proceed with Caution -- You must determine what type of writ to file, when and where you must file it, and what must be done to comply with all the procedural requirements. Both law and procedure are likely to vary from jurisdiction to jurisdiction. If your writ petition does not follow all of the requirements, it is highly likely to fail.
Writ-en Concisely -- Focus your writ petition on an issue that is worth the appellate courts' time, the Appellate Counselor tip page advises. Summarize your argument in a few sentences and explain the case sufficiently without going into every legal argument why it is important to grant your petition (see reference 1 & 5).
Short with No Delays -- Writ petitions are short--no more than one or two pages. Some writs allow you up to 60 days to get the writ filed; you want to file as soon as possible since the other side will file too.