Writ Petitions Under Article 32 and Article 226: Choosing the Right Court

What a writ is

A writ is a direction issued by a constitutional court to correct unlawful action, usually by the State or a public authority. The Constitution empowers the Supreme Court under Article 32 and the High Courts under Article 226 to issue writs.

The five writs

• Habeas corpus — to produce a person said to be unlawfully detained
• Mandamus — to compel a public authority to perform a legal duty
• Certiorari — to quash an order passed without jurisdiction or in breach of law
• Prohibition — to stop a lower court or tribunal from exceeding its jurisdiction
• Quo warranto — to question a person’s right to hold a public office

Article 32 and Article 226 compared

Article 32 is itself a fundamental right, and may be invoked only for the enforcement of fundamental rights. Article 226 is wider: a High Court can issue writs for fundamental rights and ‘for any other purpose’, which includes enforcement of other legal rights against public authorities.

In practice, the Supreme Court often expects petitioners to approach the High Court first under Article 226, unless there is a strong reason to come directly.

The alternative remedy rule

Where a statute provides an effective appeal or other remedy, High Courts generally expect it to be used first. Exceptions are recognised — for example, where fundamental rights are violated, natural justice is breached, or the order is wholly without jurisdiction.

Common writ matters for individuals and businesses

• Arbitrary cancellation of licences, registrations or tenders
• Inaction by authorities on applications or representations
• Service matters of government employees
• Illegal detention
• Revenue and land-record orders passed without hearing