Writ Petition and Its maintainability in Supreme Court
In Indian law, a writ petition is a formal written request or application that is submitted to a
higher court, usually the Supreme Court or the High Court. The purpose of writ petitions is to
challenge any form of arbitrary decision-making or action performed by public authorities.
Another way of interpreting a writ is that it can be defined as a kind of special order sealed to
any authority, government or any sovereign body in furtherance of abstinence or execution of a
specified act. Our constitution catalogs five writs which are PREROGATIVE WRITS, meaning
they can be considered as a privilege or right exclusively for a specific category or class. 1 The
article 226, gives High court broad jurisdiction to impose orders and writs on any individual or
entity. Similarly, under the article 32(2), Supreme court shall have the power to issue writs. A
person can file a writ petition in supreme court only if his/her/their fundamental rights have been
infringed by the State. Whereas high court can issue the writs in case of both ordinary legal
rights’ violation and fundamental rights’ violation. People have been given the right to file a writ
petition but still in some of the cases, their petitions might be rejected by the court. The Supreme
Court have this power of not entertaining writ petition under certain circumstances. Some of
them are as follows -
1. Misrepresentation of Facts- In any writ filed by the petitioner, if the hon’ble Supreme
Court finds any substantial misrepresentation of key facts, it holds the power to dismiss
the petition at any stage. One such example is K. Jayaram v. Bangalore Development
1
EDWARD D. C. L. JENKS, Prerogative Writs in English Law, 32 YALE L.J. 523 (1922-1923).
Authority, (2021)2, wherein the court observed that the petitioner suppressed the material
facts of the case and did not approach the court with clean hands. Therefore, such a writ
was rejected by the court.
2. Availability of Alternative Remedy- A litigant while filing his/her case, should
approach a forum that is closest to them in judicial hierarchy and that valuable judicial
resources shouldn’t be squandered. In the case of Union of India v. T.R. Verma, (1957) 3
Supreme Court stated that “It is well settled that when an alternative and equally
efficacious remedy is open to a litigant, he should be required to pursue that remedy and
not to invoke the special jurisdiction of high Court to issue a prerogative writ.” 4 The
Supreme Court has also stated that whether an alternative remedy is sufficient also varies
from to case basis. Such declaration was made in that case of Sohan Lal v. Union of India
(1957).5 Some of the observation made under this wherein writ jurisdiction may be
refused under the following reasons-
Where Petitioner may get an adequate relief by ordinary action of law
For the enforcement of contract and compensation
Where the Petitioner has already instituted a case
Where matter is time barred
3. Malicious Petition- Another case wherein a writ petition is not maintainable in the court
is when the petition submitted by petitioner is found to be malicious or futile, under such
circumstances the supreme court holds the power to dismiss the petition. One such
example is the case of Shoukat Hussain Guru v. State (NCT) Delhi & Anr (2008) 6, where
the petition was rejected because it didn’t have rational grounds for it to be issued.
4. Jurisdiction- In the case of R.S. Madireddy and Anr. Etc. v. Union of India & ors. Etc.
(2024)7, the supreme court held that writ petition against Air India Limited is not
maintainable as it ceases to be the ‘State’ or its instrumentality after its takeover by
private company. The court observed that once the public/government company has been
taken over by a private entity and is not performing any public duty, such company
2
K. Jayaram v. Bangalore Development Authority, (2021) SCC Online SC 1194.
3
Union of India v. T.R. Verma (1957), AIR 1957 SC 882.
4
Venkatesh Vijayaraghaven, The Doctrine of Exhaustion of Alternative Remedies: Convenience Rules,13
STUDENT ADVOC. 1 (2001).
5
Sohan Lal v. Union of India (1957) AIR 1957 SC 529.
6
Shoukat Hussain Guru v. State (NCT) Delhi & Anr (2008) AIR 2008 SC 2419.
7
R.S. Madireddy v. Union of India, (2024) SCC OnLine SC 965.
cannot be subjected to writ jurisdiction. The Court after referring to Kalpana Yogesh
Dhagat v. Reliance Industries Ltd., (2016)8 ; Asulal Loya v. Union of India, (2008)9 and
Tarun Kumar Banerjee v. BALCO, (2008)10, noted that the disinvestment of the
Government company and its devolution into a private company would make the
company immune from being subjected to writ jurisdiction under Article 226 of the
Constitution of India, even if the litigant had entered the portals of the Court while the
employer was the Government.
In conclusion, we can see that writ petitions are an important part of the society for the purpose
of ensuring stability in legal system and protecting the rights of individuals. Their importance
lies in upholding democratic values, ensuring justice and preventing abuses of power. Writs help
general public in seeking justice in a proper manner. But there are many instances (like the few
discussed above) where the writ petitions have to be rejected due to improper procedure followed
or any inherent mistake in the petition only or by the wrongful act of the petitioner.
HUMAN TRAFFICKING : A bane to the Society
8
Kalpana Yogesh Dhagat v. Reliance Industries Ltd., (2016) SCC OnLine Guj 10186.
9
Asulal Loya v. Union of India, (2008) SCC OnLine Del 838.
10
Tarun Kumar Banerjee v. BALCO, (2008) SCC OnLine Bom 1899.
Human Trafficking, as defined by the United Nations is the recruitment, transportation, transfer,
harbouring or receipt of people through force, fraud or deception, with the aim of exploiting
them for profit. Men, women and children of all ages and from all backgrounds can become
victims of this crime, which occurs in every region of the world 11.But this definition is too
broad.Such extensiveness has left ample room for competing definitions of human trafficking.In
her book Trafficking and prostitution reconsidered, Kamala Kempadoo says that “there
is little consensus among researchers,policy makers,and activists about the scope of problem; and
scant evidence or substantiation about trafficking practices”. 12 Human trafficking has been a part
of our society from a long time and it still remains prevalent.The year 1525 marked the first slave
voyage from Africa to America.An average of 12.5 million slaves were shipped from Africa to
around the world during the Transatlantic slave trade period,which was around 350 years
long.13Today, according to a report of International Labour Organisation(ILO),International
organisation for migration(IOM) and the Walk Free Foundation(WFF), around 50 million people
were victims of modern slavery in the year 2021. 14This number can be much, much greater as
many cases still go unreported ,either because people are unaware of their rights or they are
being suppressed so much that they have lost all of their will power to fight against this injustice.
11
UNITED NATIONS OFFICE ON DRUGS & CRIMES, https://www.unodc.org/unodc/en/human-
Trafficking/Human-Trafficking.html (last visited oct, 26,2024)
12
KAMALA KEMPADOO,TRAFFICKING AND PROSTITUTION RECONSIDERED vii (Paradigm
Publishers 2005).
13
Becky Giovagnoni and Amber Van Schooneveld,The History of Human Trafficking, THE
EXODUS ROAD (2022).
14
INTERNATIONAL ORGANISATION FOR MIGRATION, https://publications.iom.int/books/global-
estimates-modern-slavery-forced-labour-and-forced-marriage .
As for India, the government reported that there were as many as 10,659 cases of human
trafficking between 2018 and 2022 but only 1031 convictions were done.Such a big number
raises great concern among the population. 15A society where we have developed so much in
terms of technology, each day we see a new invention that helps humans simplify their tasks, we
also see people getting trafficked and being made to work illegally for nothing or close to
nothing wages.Even after reporting of such cases there is lack of convictions on the part of the
authorities. Under Indian law, trafficking in human beings or persons is prohibited under the
constitution of India under article 23(1).16We also have an act, The Immoral Traffic
(Prevention )act ,1956,(ITPA)17, which is the premier legislation for prevention of trafficking for
commercial sexual exploitation.Even after such stringent laws, there remains a section of society
that is vulnerable to such injustice.One of the most visible reason behind this,which I see, can be
Poverty. Impoverished people often lack access to education, healthcare and economic
opportunities. For such reasons they might migrate which can lead to dangerous and exploitative
situations. A study by ILO found that in low income countries, children from poor rural areas
accounted for half of trafficking victims. Human trafficking is a crime that needs to be evaded
from society.18For this we can try and implement stricter laws and ensure that their execution is
done properly.Other than laws, we as a society must take some actions against this. The reality is
that everyone can do something to fight trafficking.We can try and spread awareness regarding
human trafficking , volunteer and help those lack resources for basic survival.Through
mentioned ways and many other methods we can help end human trafficking and make this
world a better place to live.
15
Singh, S. S. (2024, January 6). Over 10,000 cases of trafficking but only 1,031 convictions
between 2018-2022. The Hindu. https://www.thehindu.com/news/national/other-states/over-
10000-cases-of-trafficking-but-only-1031-convictions-between-2018-2022/
article67713302.ece
16
INDIA CONST. art. 23, § 1.
17
Immortal Traffic (Prevention)act, Acts of Parliament,1956(India).
18
INTERNATIONAL LABOUR ORGANISATION,https://www.ilo.org/international-programme-
elimination-child-labour-ipec/sectors-and-topics/trafficking-children .
Legality of Israel's attack through Pagers and
Walkie-Talkies on Hezbollah fighters in
Lebanon (2024)
INTRODUCTION
What happened in Lebanon ?
Several pagers and walkie-talkies used by a militant group, backed by Iran, Hezbollah, exploded
on September 17th and 18th casuasing several injuries and deaths. One of the theories developed
was that Israel, in its opposition to Hezbollah, has been planning to detonate pagers and walkie-
talkies for the past decade. The Mossad began their first plan of action in 2015, by infiltrating
these walkie-talkies into Lebanon that could detonate easily. 19 Then in 2023 Hezbollah made a
huge purchase of these pagers and walkie-talkies without realising that the Mossad itself once
developed these.
This explosion has significantly escalated the tussle between Israel and Hezbollah. Recent
revelations on this situation are that the Israeli PM Benjamin Netanyahu has accepted that Israel
was behind all these explosions.
19
Souad Mekhennet and Joby Warrick, Mossad’s pager operation: Inside Israel’s penetration of Hezbollah The
Washington Post (12 Nov 2024) https://www.washingtonpost.com/world/2024/10/05/israel-mossad-hezbollah-
pagers-nasrallah/ .
What is the legality behind this explosion?
International humanitarian law (IHL) is a set of rules that seeks, for humanitarian reasons, to
limit the effects of armed conflict. 20 It seeks to protect to those who are not involved in
hostilities.But how does International humanitarian law concerns this particular situation?
Distinction
Since the pagers and walkie-talkies were distributed by the Hezbollah among a lot of people
working under them,so there arises the question whether all the individuals were actively
participating in the hostilities or not?
Under the humanitarian law, civilians are protected from attack.It suggests that attacks should
solely be directed at combatants and military objectives and not civilians.But if they engage in
Direct participation in hostilities(DPH), they lose this right to be protected and can be lawfully
targeted by the military forces.But even this is a point of debate, what is the basis for
categorising people whether they are the direct participants in a hostility or not? Not much
clarification on this is given under the law which again creates a situation of ambiguity.In this
situation of objects exploding irrespective of the holder’s status, raises concerns about the
compliance with the principle of distinction.
Proportionality
The IHL works on a proportionality principle,this prohibits attacks that would cause excessive
civilian harm.Any attack conducted by Hezbollah in or near civilian populated areas may well
result in incidental loss or damage that actually breaches the proportions and thus is a
disproportionate attack in itself. This would include ensuring that information derived from
pagers and walkie-talkies is of sufficient timeliness and accuracy not to maximize civilian
consequences.
Sovereignty and use of force
Under the International Humanitarian Law, the use of force in another sovereign state, without
consent is prohibited. Except in the cases of self-defence. In this case, Israel’s actions in Lebanon
20
INTERNATIONAL COMMITTEE OF THE RED CROSS, https://www.icrc.org/en/document/what-international-
humanitarian-law (12 nov 2024).
targeting a militant group, Hezbolla, must be justified under the Article 51 of UN
Charter.21Another point of discussion is if Hezbollah’s actions were attributable to Lebanese
state, Israel can argue that it acted in self-defence and if Hezbollah is considered a non-state
entity then it complicates the situation even more under the International Law.
Military Necessity
For the purposes of justifying the Israel’s attack on the Hezbollah, they would need to prove
some specific criterias.One of them can be prevention of imminent threat.For instnace, if Israel
precepted that Hezbollah was about to launch an attack on Israel.Strike actions must be based on
confirmed intelligence received from monitoring pagers and walkie-talkies that would
conclusively tie Hezbollah fighters to these activities. There should be specific actions or
movements by Hezbollah that would signify a response is necessary; it should not be general
surveillance, and it should determine whether Hezbollah's military action is imminent or already
happening.
Precautions in an attack
Since IHL does not tolerate harm caused to civilians, Israel needed to be careful to avoid
harming civilians.Israil can claim that through those pagers and walkie-talkies they had better
way of making their attacks more accurate.The only issue in this was that not much real time
information could have been precepted from here causing ambiguity and which would further
cause IHL to consider this against their rules and principles.
Prohibited use of some weapons
Under the Amended Protocol II of the Convention on Certain Conventional Weapons (CCW), a
booby trap is considered to be a device that is designed to cause kill or injure when triggered by
unexpected contact made between the object and any person. This object can be something that
seems harmless and can be used safely in everyday context.
I believe that pagers and walkie talkie meet this criteria of being a ‘Booby Trap’ because they
are usual items that one might not find dangerous in any case. And considering all the reports
that have come from Lebanon regarding these exploding, we can also confirm that the pagers and
the walkie talkies exploded due to the contact made between the person and the object.
21
Charter of the United Nations (adopted 26 June 1945, entered into force 24 October 1945) 1 UNTS XVI, Art 51.
Article 7(2) of CCW provides that “it is prohibited to use booby-traps or other devices in the
form of apparently harmless portable objects which are specifically designed and constructed to
contain explosive material.” Since both pagers and walkie talkie fall under the purview of a
booby trap, there is violation of this particular article as well.
Conclusion
In a nutshell, this explosion of pagers and walkie talkies can be seen as a violation of
International Humanitarian law in light of violating principles of distinction and proportionality,
considering the fact that a lot of civilians were injured in this incident.Also, the pagers and
walkie talkies falling under the category of booby trap further supports the argument that these
actions are illegal under IHL.
