Sabarimala: What is writ, review and curative petition?

In light of the Supreme Court hearing three writ petitions and a whopping 49 review petitions in the Sabarimala temple row, Deccan Herald brings to you a low down of what the petitions are and what they constitute:


Writ petition:

Simply put, a writ is a formal order given by a court of law. This includes any and all orders, including warrants, order and directions. Writ petitions fall under Article 32 () of the Constitution when the Supreme Court is concerned and Article 226 when the High Courts are concerned.

Article 32 says:

"The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part."

And Article 226 says:

"Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose."

There are five types of Writs:

Haebus Corpus:

Literally translating to "Let us have the body" from Latin, the writ of Haebus Corpus writ is issued when there is a suspicion that a person is being illegally detained. The writ petition for Haebus Corpus can be filed by the person who is being detained or any other person on their behalf and if the person who has been detained is not produced before the court in under 24 hours, they are legally deemed to be released from their detainment.

Mandamus:

The writ of Mandamus writ can be issued by the Supreme Court and the High Court, which grants them the power to order lower courts to follow a given direction. The function of this writ is to command and execute, but it cannot be used to enforce obligations that are not of a statutory nature. A Mandamus can be filed by any person, subject to them having the right to do so.

Mandamus can be issued to any kind of authority in respect of any type of function – be it the administrative, legislative, quasi-judicial, or judicial, but cannot be issued when the Government is under no duty within the law.

Prohibition:

Commonly known as the "stay order", the writ of Prohibtion can be issued to a lower court or tribunal to stop it from exceeding its jurisdiction or to prevent it from acting contrary to the rules. The writ can be issued at any stage of the proceeding before the inferior court or tribunal and can be issued only against a judicial and quasi-judicial body and not against a legislative or administrative body.

Certiorari:

The writ of Certiorari is used by the Supreme Court and High Courts to direct lower courts, tribunals or authorities to transmit to the court concerned the record of proceedings disposed of or pending for scrutiny and, if necessary, for quashing the same.

Quo Warranto:

The writ of Quo Warranto is used by the Supreme Court and High Courts to control executive action in the appointment of persons to public offices and to protect citizens from someone who holds a public office without the right to do so. The Court concerned with the writ may, on its discretion, restrain a person who fails to sufficiently prove their right to a public office from continuing further and even declare the office itself vacant.

 

Review petition:

The power to review an order or direction by way of the review petition can be invoked to have a court of law review its own order or judgement in a case.

The review petition is mentioned in Article 137, which says:

"Review of judgements or orders by the Supreme Court, subject to the provisions of any law made by Parliament or any rules made under Article 145, the Supreme Court shall have power to review any judgement pronounced or order made by it."

A review petition has to be filed in under 30 days of the original order and circulated without oral arguments to the same bench that issued the order being petitioned for review.

 

Curative petition:

The curative petition was evolved in 2002 by the Supreme Court in the Rupa Ashok Hurra vs Ashok Hurra and Anr. case in 2002. The petition was defined when the question of whether an aggrieved party can seek relief from the Supreme Court in the event of a dismissal of a review petition was raised.

In the case report, the curative petition was defined as:

"After exhausting the remedy of review under Article 137 of the Constitution, an aggrieved person might be provided with an opportunity under inherent powers of this (Supreme)Court to seek relief in cases of gross abuse of the process of the Court or gross miscarriage of justice because against the order of this Court the affected party cannot have recourse to any other forum."


Read:

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EDITORIAL | Sabarimala: Shah inciting people

Ayodhya of South for BJP?

BJP desperately needs a controversy, Sabarimala will do

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