Introduction

“If I was asked to name any particular Article in this Constitution as the most important, i.e. 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.”

——Dr. Babasaheb Ambedkar.      

The Courts in India have played a very creative and important role in relation to the growth and development of constitutional law in India. It is accepted axiom(maxim) that, the real essence of democracy lies in the Courts enjoying the ultimate authority to restrain the exercise of absolute and arbitrary powers of the executive. Courts have played very important role as a control mechanism over the executive and legislative actions and have provided various remedies to the citizens when their legal rights are violated.

A right without a remedy does not have much substance. The fundamental rights guaranteed by the Constitution are effective only because of the mechanism provided for their enforcement. Constitution Makers of India have incorporated a remedy for the enforcement of fundamental rights under Arts. 32 and 226 of the Indian Constitution. Art. 32 is itself a fundamental right.

Article 32 – Right to Constitutional Remedies

Article 32 can be discussed as under :

(1) Clause (1) guarantees the right to move Supreme Court by appropriate proceedings for the enforcement of fundamental rights conferred by Part-III of the Constitution.

(2) Clause (2) confers power on the Supreme Court to issue appropriate directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quowarranto and certiorari for the enforcement of any of the rights conferred by Part-III of the Constitution.

(3) Clause (3) provides that, parliament may by law, empower any other Court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by Supreme Court under clause (2).

(4) Clause (4) provides that, the rights guaranteed by Art. 32 shall not be suspended except as otherwise provided by the Constitution.

Meaning Writs : According to ‘Lord Halsbury’ Writ can be called those extraordinary remedies which are issued upon cause shown in cases where the ordinary legal remedies are inapplicable or inadequate.

In Hindi Hitrakshak Samiti v. Union of India, (1990), the Supreme Court said that, Art. 32 can be invoked only when thereis an infringement of a fundamental right. Jurisdiction conferred onthe Supreme Court under Art. 32 is an important and integral part of the Constitution.

The words ‘in the nature of’ :

The words ‘in the nature of’, used under Art. 32 is very important as it indicates that, Supreme Court is not bound to follow all the technicalities of English law surrounding these writs. Courts in India cannot be circumscribed by those principles. The Court can follow some deviations here to protect individual’s freedom from violative State action.

For the enforcement of the fundamental rights a parallel writ jurisdiction has been conferred on the High Courts under Article 226.

As regards the inter- relation between the two articles it appears that Supreme Court’s jurisdiction is independent of and is in no way curtailed or qualified by the jurisdiction of High Court. A person aggrieved of violation of his fundamental rights, may come straight to Supreme Court for relief and he is not bound to invoke the jurisdiction of the High Court first. The reason is Article 32 is itself a fundamental right and provides for remedy in case of violation of fundamental right.

In Kochuni v. State of Madras, (1959), the court held the view that

Article 32 is the most powerful weapon in the hand of the Supreme Court of India. With this power it keeps the legislature and executive within bounds of their respective powers.

In Fertiliser Corporation Kamgar Union v. Union of India, (1981), it has been held that the jurisdiction conferred on the Supreme Court by Article 32, is an important part of the “basic structure” of the Constitution because it is meaningless to confer fundamental rights without providing an effective remedy for their enforcement. When they are violated, Parliament may empower the Supreme Court with such a power under Article 139. But the power of the High Court to issue writs cannot be in derogation of the Supreme Court under Article 226. In other words, an order under Article 32 will supersede the orders of the High Court previously passed.

The power of the Supreme Court to issue writs under Article 32 is a bit narrower than that of the High Courts under Article 226 of the Constitution. Under Article 32 a writ can be issued only for the infringement of fundamental rights guaranteed under Part III.

But under Article 226 writs can be issued for the infringement of the fundamental rights or for any other purpose.

Thus the High Courts enjoy a wider power under Article 226 to issue writs, orders, or directions.

Power of Parliament to enlarge writ jurisdiction of the Supreme Court :

The Parliament, under Article 139, may by law confer on the Supreme Court power to issue directions, orders or writs including writs of habeas corpus, mandamus, prohibition, quowarranto and certiorari, or any of them, for any purposes other than those mentioned in Clause(2) of Article 32.

The Writs :

For the enforcement of the fundamental rights, the Supreme

Court under Art. 32 is empowered to issue following writs.

1. Habeas Corpus

Habeas corpus is a Latin term, which literally means, ‘you may have the body’. This writ is issued in form of an order calling upon a person by whom another person is detained to bring that person before the Court and to let the Court know by what authority he has detained that person. If the cause shown discloses that, the detained person has been detained illegally, the Court will order that he be released.

Object

The main object of the writ is to give quick and immediate remedy to a person, who is unlawfully detained by the person or the authority. In such case, detained person can be released forthwith.

This writ lies when a person has been detained unlawfully. It may be used to secure release of a person from confinement without legal justification. In India, detention may be unlawful if, it is not in accordance with law, or there is no valid law to warrant it, or the law is invalid because it infringes a fundamental right or the legislature enacting it exceeds its limit. The great value of this writ is that it enables the immediate determination of the right of a person’s freedom.

Who can apply for the writ. – Locus Standi : The literal meaning : The right to appear and be heard before a court. Illustration : Before an application for judicial review can be made, the applicant must prove that they have a locus standi. “Locus standi” is Latin phrase for ‘place to stand’- In law, the right to bring an action. It is the ability of a party to demonstrate to the court sufficient connection to and harm from the law 

The traditional rule is that an application can be made by a person who is illegally detained. But in certain cases, an application for habeas corpus can be made by any person on behalf of the petitioner, i.e. his friend or a relation.

The writ of habeas corpus cannot only be used for releasing a person illegally detained but it will also be used for protecting him from inhuman treatment inside the jail.

New function :

Though the traditional function of the writ of habeas corpus has been to get the release of a person unlawfully detained or arrested, the Supreme Court of India has widened its scope.

In Kanu Sanyal v. Dist. Magistrate, (1974), the Supreme Court held that, while dealing with the application of the writ of habeas corpus, production of the body of the person alleged to be unlawfully detained was not essential. Court said that, production of the body of person alleged to be illegally detained is not an essential feature of writ of habeas corpus under Art. 32 of the Constitution.

Bhagwati J. said that, the production of the body of a person detained before the Court was not necessary for hearing and disposing of the writ petition by the Court. He said, “Why should we hold ourselves in fitters by a practice which originated in England about 300 years ago on account of certain historical circumstance, which have ceased to be valid even in that country and which have certainly no relevance in ours ?”

Again in Sunil Batra v. Delhi Administration, (1978), the Supreme Court permitted the use of writ of habeas corpus for protecting the various personal liberties of the prisoners i.e. to prevent inhuman and cruel treatment meted out to the prisoners in jail.

The writ is not issued if the custodian can satisfy the court that the prisoner is not under unlawful detention. The Supreme Court has held in Janardan v. State of Hyderabad, (1951) that if it should appear on the face of return that a person is in detention in execution of a sentence or an indictment on a criminal charge, that would be a sufficient answer to an application for a writ of habeas corpus.

Following are some of the important aspects of the writ of habeas corpus

(1) It is a remedial writ, available when there is wrongful deprivation of individual freedom.

(2) The writ will not be used if the detention in question is lawful.

(3) A petitioner or detenu himself, or his relative or his friend or any other person interested can move the Court for the writ of habeas corpus.

(4) In certain circumstances, the Court has power to issue the writ

ex-partie.

(5) Doctrine of res-judicata is not applicable to the writ of habeas corpus.

(Res means “subject matter” and judicata means “adjudged” or decided and together it means “a matter adjudged”. 

In simpler words, the thing has been judged by the court, the issue before a court has already been decided by another court and between the same parties. Hence, the court will dismiss the case as it has been decided by another court. Res judicata applies to both civil and criminal legal systems. No suit which has been directly or indirectly tried in a former suit can be tried again.)

(6) While issuing the writ of habeas corpus, the Court can award compensation in certain cases.

(7) Mere delay in filing the writ will not disentitle the detenu from filing this writ.

(8) A writ of habeas corpus is required to be heard and disposed

expeditiously as possible.

(9) Burden of proof is on the authority to justify the detention.

(10) Even during emergency, a writ of habeas corpus can be filed

for the enforcement of fundamental rights guaranteed under

Arts. 21 and 22 i.e. 44th Amendment Act, 1977.

2. Mandamus

Mandamus means a command. It is an order issued by a Court to an authority directing it to perform a public duty imposed upon it by the Constitution or by any other law for time being enforced. It is a judicial remedy which can be issued to any kind of authority exercising the functions of public nature.

Object

The object of mandamus is to keep the public authorities within the limits of their jurisdiction while exercising their functions.

Conditions :

Following conditions are to be satisfied for the issuance of mandamus.

(1) A petitioner must have legal right.

(2) A legal duty must be imposed on the authority to perform any act.

(3) An affected person must demand justice and it must have been refused.

(4) Mandamus cannot be issued to enforce a civil liability arising

under the law of torts or contracts. Because A writ of mandamus does not lie against a private individual.

(5) An application for mandamus must have been made in good faith.

In Bombay Municipality v. Advanced Builders, (1972), the Court directed the municipality to implement a town planning scheme which was prepared by it and approved by the government under the relevant statute, but on which no action was taken for a considerable time.

State of M.P. v. G.C. Mandawara : A writ of mandamus can only be granted when there is in the applicant a right to compel the performance of some duty cast upon the authority.

In this case it is also held that, when the duty is merely discretionary in nature, the writ of mandamus will not lie.

In this case it is also held that, when the duty is merely discretionary in nature, the writ of mandamus will not lie.

3. Quo-warranto

The term ‘quo-warranto’ means what is your authority. By this writ, a holder of an office is called upon to show to the Court under what authority he holds the office. If the enquiry leads to the finding that the holder of the office has no valid title to it, the Court may pass an order preventing the holder to continue in office and may also declare the office vacant. Writ of quo-warranto can be issued to prevent a person from holding an office which he is not legally entitled to hold.

Object

In University of Mysore v. C. D. Govinda Rao, (1965),

Supreme Court laid down two important objects of writ of quo-warranto.

(1) To control executive action in the matter of making appointment to public offices, against the relevant statutory provisions and

(2) To protect a citizen being deprived of that to which he may have the right.

Conditions :

For the issuance of writ of quo-warranto, following conditions are to be satisfied.

(1) The office in question must be of a public nature.

(2) The office must be of a substantive character, which means

that it must be an independent office.

(3) The office must be statutory or constitutional.

(4) The holder must have asserted his claim to the office.

Quo-warranto and de-facto doctrine :

An officer de-jure (holding a specified position by legal right.) is one, who, possessing the legal qualifications, has been lawfully chosen to the office in question. An officer de-facto (in fact, whether by right or not.) is one, who holds office under the colour of lawful authority though

his appointment is defective.

In Gokaraju Rangaraju v. Andhra Pradesh, (1981),

The Court said that, the acts of the officers de-facto performed by them within the scope of their assumed official authority, in the interest of public or third persons and not for their own benefits are generally as valid and binding, as they were acts of officers de-jure.

But it is to be noted that, by applying de-facto doctrine, the appointment of the officers de-facto does not become, valid or lawful nor can be allowed to continue in the said office. As soon as the attention of the Court is drawn to the fact that, a person who is not entitled to hold an office is holding the public office contrary to law, it is not only the power, but duty of the Court to declare that he is not entitled to hold that office and to restrain him from acting as such.

In G.D. Karkare v. T.L. Shevde, (1952), the appointment of the Advocate General of Madhya Pradesh was questioned by

Quo-Warranto. An objection was take that mere a private individual seeking neither enforcement of his fundamental right nor any other legal right cannot ask for quo- warranto. The High Court held that there was no reason to refuse a citizen under a democratic republican constitution to move for a writ of quo-warranto for testing the validity of high appointment under the Constitution. On merit however, it was held that there was no defect in the appointment questioned in the writ.

The writ of quo-warranto can go only to public offices and not to private bodies like the Managing Committee of a school, as has been held in Amrendra v. Narendra, (1953).

Who can apply :- A writ of quo warranto can be claimed by a person if he satisfies the Court that, :

1. The office in question is a public office
2. It is held by a person without legal authority.

4. Certiorari

Certiorari means to certify. It is an order issued by the superior Court to an inferior Court or any authority exercising judicial or quasi-judicial functions to investigate and decide and legality and validity of the orders passed by it.

The function of certiorari is to quash a decision already made and so it is issued when the body in question has disposed of the matter and rendered a decision.

Object

The object of the writ of certiorari is to keep inferior Courts and quasi-judicial bodies within the limits of their jurisdiction.

In Varma v. State of U. P., (1985), Supreme Court held that, if the judicial or quasi-judicial body act in excess of their jurisdiction, their decisions can be quashed by superior Courts by issuing writ of certiorari.

In Champalal v. The Commissioner of Income Tax, (1970), it was held that a petition for a writ of certiorari may lie to High Court where the order is on the face of it erroneous or raise question of jurisdiction of infringement of fundamental right of the petitioner.

Grounds on which the writ is issued. –

The following conditions must be fulfilled before a writ of certiorari can be issued.-

(1) The act, order or judgment, in respect of which the writ is sought to be issued should be the act, order or judgement of an inferior court or statutory body exercising judicial or quasi-judicial functions.

(2) Such court or body must have acted in absence or in excess of the jurisdiction vested in it the principles of natural justice so as to render such act, order or judgement invalid.

(3) Where there is violation of the principles of natural justice so as to render such act, order or judgement invalid.

(4) When there is an error apparent on the face of record.

5. Prohibitions

The writ of prohibition is a judicial writ. It can be issued against a judicial or quasi-judicial authority. This writ can be issued by superior Court to inferior Courts for the purpose of preventing inferior Courts from usurping (take the place of) a jurisdiction with which it was not legally vested or in other words, to compel inferior Courts to keep within the limits of their jurisdiction. Thus the writ lies both for excess of jurisdiction and absence of jurisdiction.

This writ can be issued only to judicial and quasi-judicial bodies. It can be issued when the matter has not been disposed of, but is being considered by the body concerned.

Object – The object of writ of prohibition is to prohibit the body concerned from proceeding with the matter further.

Grounds :

In Union of India v. M. B. Patnaik, (1981), the Supreme Court said that, writ of prohibition can be issued on the following grounds.

(1) If the authority has acted under invalid law.

(2) If there is a jurisdictional error.

(3) If there is error apparent on the face of record.

(4) If the finding of facts are not supported by evidence.

(5) If there is failure of principles of natural justice.

Prohibition has much in common with certiorari. Thus both these writs lie against a judicial or quasi judicial body but not against an executive body. But there is one fundamental distinction between the two writs. They are issued at different stages of the proceedings.

When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the Superior Court for a writ of prohibition and on that, an order will issue forbidding the inferior court from continuing the proceedings. On the other hand, if the court hears that case or matter and gives a decision, the party aggrieved will have to move the Superior Court for a writ of certiorari, and on that, an order will be made quashing the decision on the ground of want of jurisdiction.

Hari Vishnu Kamath v. Ahmad Ishaque (1967) : When the case is pending before the Court but it has not finally been disposed of, the SC has to apply both prohibition and certiorari- prohibition to prevent the Court to proceed further with the case and certiorari for quashing what had already been decided.

Thus the object of the writ of prohibition is in short prevention rather than cure, while certiorari is used as a cure.

In Bengal Immunity Company Ltd. v. State of Bihar, (1955) Supreme Court observed that the existence of an alternative remedy may be more relevant in the context of a writ of a certiorari but where an inferior tribunal is shown to have usurped jurisdiction which does not belong to it that consideration is irrelevant and the writ of prohibition has to be issued as of right.

Prohibition and certiorari – Distinguished :

Prohibition has much in common with certiorari. Both the writs are issued with the object of restraining the inferior Courts from exceeding their jurisdiction. But the difference between two writs lies in the fact that, when the case is pending before the Court and has not been finally disposed, then Court can issue writ of prohibition. But, if the Court hears the case and has given decision, then writ of certiorari can be issued by the Court to quash the decision of the lower Court. Thus, the object of the writ of prohibition is in short, prevention rather than cure, while certiorari is used as cure.

Article 33 : Power of Parliament to modify the rights conferred by this Part in their application etc.

Article 33 is an exception to the fundamental rights conferred by Part III of the Constitution. This Article empowers the Parliament to restrict or abrogate by law fundamental rights in the application of (a) members of Armed forces (b) the Forces charged with the maintenance of public order

The 50^th Amendment Act, 1984 amended Article 33 and extended its scope by including two more categories of persons connected with armed forces whose fundamental rights could be restricted by Parliament by law. It now includes also clause (C) and (D).

Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,

(a) the members of the Armed Forces; or

(b) the members of the Forces charged with the maintenance of public order; or

(c) persons employed in any bureau or other organisation established by the State for purposes of intelligence or counter intelligence; or

(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organisation referred to in clauses

(a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them.

The object of this restriction under this Article is to ensure the proper discharge of their duties and maintenance of discipline amongst them.

This Article is an exception to the operation of Art 13 cl(2) which prohibits taking away or abridgement of the right guaranteed by Part III of the Constitution. Hence a law passed under Art 33 cannot be challenged under Article 13 cl(2).

 The power under Article 33 is only exercisable by Parliament and not by State Legislature.

Article 34 :- Restriction on rights conferred by this Part while martial law is in force in any Area

Notwithstanding anything in the foregoing provisions of this Part, Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

This power of Parliament is, however, subject to two restrictions :

1. The act must be done for the maintenance of restoration of order
2. Martial law was in force in the area where the act was done.

So, the Act of indemnity passed by Parliament cannot be challenged on the ground that it violates fundamental rights.

Article 35 is related to, Legislation to give effect to the provisions of this part.

• Article 35 lays down that the power to make the laws, to give effect to the certain specified fundamental rights shall vest only in the Parliament, not in the state legislatures.
• However, this provision ensures that there is uniformity throughout India with regard to the nature of those fundamental rights and also the punishment for their infringement.