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RIGHT TO CONSTITUTIONAL REMEDIES

Table of Contents

(Art. 32 and 226)

QUESTION BANK

Q.1. Discuss the writ of Habeas Corpus fully with reference to the decided cases.

Q.3. Explain fully, a) Writ of Mandamus b) Writ of prohibition.

Q.4. Discuss in brief all writs contained in the Constitution.

Q.5. Discuss the various judicial remedies available under the Constitution of India.

Q.6. ‘Public Interest Litigation’ has become easier media of judicial redressal. Explain.

Q.7. Discuss fully the writ jurisdiction of High Court and Supreme Court.

SHORT NOTES

Public Interest Litigation.
Writ of Quo Warranto.
Writ of Habeas Corpus.
Writ of Mandamus.
Delay and Latches.
Writ of Certiorari.
Doctrine of waiver.
Writ of prohibition.

SYNOPSIS

A) Introduction-
B) Enforcement of fundamental rights by the Supreme Court (Art. 32):-
C) Enforcement of fundamental rights by the High Court (Art. 226):-
D) Distinction between Art.32 and Art. 226:-
E) WRITS IN PARTICULAR
F) WHO CAN APPLY (locus standi):-
a) Rule of locus standi:-
b) Public Interest Litigation (PIL)/ A dynamic approach:-
Protection against inhuman treatment:-
Child welfare:-
Right to get pollution-free water and air:-

NOTES

Writs in Particular-

Habeas corpus:-

Meaning:-

Who may apply:-

Procedure:-

Mandamus:-

Meaning:-

Who may apply:-

Against whom mandamus would lie:-

3) Prohibition:-

Meaning nature and scope:-

When issued:-

Who may apply:-

Against whom it lies:-

Distinction between ‘writ of prohibition’ and ‘writ of certiorari’:-

4) Certiorari:-

Meaning:-

Grounds of issue:-

Jurisdiction:-
To correct error apparent on face of record:-
Violation of natural justice:-

Who may apply:-

5) QUO WARRANTO:-

Meaning: –

Who may apply –

A) Introduction:-

Part III of the Indian Constitution from Art. 12 to 35 provides for fundamental rights to individuals. These rights are guaranteed against arbitrary State action (i.e. Administrative action). Art. 32 and 226 provide a remedy for violating any fundamental rights by administrative action (officers of State). These two articles make fundamental rights real, and the maxim ‘ubi jus ibi remedium’ is true. Therefore, Dr Ambedkar, one of the founding fathers of the Indian Constitution, said that “if I was asked to name any particular article in this constitution as the most important, an article without which this constitution would be a nullity- I could not refer to any article except this one (Art. 32) it is the very soul of the constitution and the very heart of it”. It shows that the founders of our Constitution were well aware of the part played by prerogative writs in England; therefore, they made specific provisions in the Constitution under Art[1]. 32 and 226, which empowers the Supreme Court and High Courts to issue various writs to enforce fundamental rights.

B) Enforcement of fundamental rights by the Supreme Court (Art. 32):-

Art. 32 is a fundamental right under Part III of the Indian Constitution. Art. 32 (1) guarantees an individual the right to move to the Supreme Court for the enforcement of fundamental rights guaranteed under Art. 12 to 35 of the Constitution.

Art. 32 (2) empowers the Supreme Court to issue appropriate directions, orders, or writs, including writs of habeas corpus, mandamus, prohibition, quo-warranto, and certiorari.

Thus, Art. 32 provides a guaranteed quick and summary remedy[2] for enforcement of fundamental rights because a person can go straight to the Supreme Court without having to undergo the dilatory process of proceeding from the lower to the High Court, unlike ordinary civil litigation. Supreme Court is thus a protector, guarantor or guardian of fundamental rights constituted under the Constitution.

C) Enforcement of fundamental rights by the High Court[3] (Art. 226):-

Art. 226 empowers every High Court to issue directions, orders, or writs in the nature of habeas corpus mandamus, prohibition, quowarranto, and certiorari or any of them. Under this article, an individual can move to the High Court for enforcement of-

a) fundamental rights, or
b) for any other purpose.

This right under Art. 226 is limited to the territorial jurisdiction of that High Court.

However, a writ remedy is not available if an alternative statutory remedy is available to the aggrieved person. But in Suresh B. Rajepal V/s. Union Bank of India (2008 All M R)

Held- In every case, the availability of an alternative statutory remedy may not be a complete bar to the maintainability of the writ petition before the High court under Art. 226.

In Pratibha Shinde v. Principal Secretary, Public Health Department

(Laws (Bom. H.C) 2021- (1)- 79)

The Bombay High Court observed that Art. 32 and 226 impose a constitutional obligation upon the Supreme Court and the High Courts to forge new tools that may be necessary for doing complete justice and enforcing the fundamental rights guaranteed in the Constitution. These tools enable the Courts to award monetary compensation in appropriate cases against the government.

Facts– In this case, an old COVID-19-affected lady was found dead in a government medical hospital, and her body was recovered after five days.

D) Distinction between Art. 32 and Art. 226:-

The Supreme Court under Art. 32 similarly High Courts under Art. 226 can issue directions, orders, or writs. There is some difference between the Supreme Court’s power and the High Court’s power of issuing writs, viz:-

The right is guaranteed under Art. 32 can be exercised to enforce fundamental rights by that Supreme Court. Whereas the right under Art. 226, can be exercised for enforcement of-
a) the fundamental rights, as well as,
b) for any other purpose (i.e. for enforcement of other legal rights) by the High Court. Thus, with this respect, the power of the High Court on a subject matter is wider than the power conferred by Art. 32 on the Supreme Court.
The jurisdiction of the Supreme Court under Art. 32 is India-wide. Meanwhile, the jurisdiction of the High Court under Art.226 is restricted to the territory of the State where the High Court is situated. It is also subject to the Supreme Court’s power under Art. 32. Thus, the territorial jurisdiction of the Supreme Court is wider[4] than that of the High Court.
Art. 32 is itself a fundamental right. On the other hand, Art. 226 is not a fundamental right. Therefore, the issue of the writ may be refused if an equally efficacious remedy is available under any other law.

E) WRITS IN PARTICULAR[5]:- (See Note at the end of this topic):-

F) WHO CAN APPLY[6] (locus standi):-

a) Rule of locus standi[7]:-

The traditional rule is that the right to move to the Supreme Court or the High Court is only available to that person whose fundamental right is infringed[8]. This rule is called the rule of locus standi. In other words, the right to file a petition by an aggrieved person is called the rule of locus standi.

b) Public Interest Litigation[9] (PIL)/ A dynamic approach:-

Some persons or groups of persons, because of their poverty or socially or economically disadvantaged position, are unable to approach the Supreme Court or High Court for relief. Therefore, the court has relaxed the traditional rule of locus standi (i.e. only that person whose right has been violated can approach the court for relief). PIL is a new dynamic trend developed recently to help the needy and to protect the rights of the socially, economically, and physically downtrodden.

The court now permits public interest litigations or ‘social interest litigation‘ from any other public-spirited citizen for the enforcement of constitutional and other legal rights of such socially, educationally, or economically disadvantaged persons or groups of persons. This is a dynamic approach adopted by the Supreme Court and High Courts in recent days; public interest litigation is a helpful judicial device for enforcing fundamental rights of socially, educationally, or economically disadvantaged (backward) persons or groups of persons. PIL is judicial activism to help the needy.

INSTANCES OF PUBLIC INTEREST LITIGATIONS[10]:-

The following are some instances of public interest litigation.

1. Release of bonded labours[11]:-

In Bandhu Mukti Morcha V/s Union of India[12]

Facts: The Supreme Court treated an ordinary letter as ‘public interest litigation’, and after inquiry, it was found that, in some quarries situated in Faridabad district in the State of Hariyana, a large number of labourers were working under ‘inhuman and intolerable conditions’, and many of them were bonded labourers.

Held: – The Court issued a writ for the release of bonded labourers and improving conditions of work in stone queries.

2. Protection against inhuman treatment[13]:-

In Sunil Batra V/s Delhi Administration[14]

Supreme Court held that the writ of habeas corpus could be issued not only for releasing a person from illegal detention but also for protecting prisoners from inhuman and barbaric treatment from police.

3. Child welfare:-

Courts have issued various writs for the welfare of children. It has ordered that the child welfare Agencies must ensure the welfare of children; it is their constitutional obligation[15]. Children cannot be employed in hazardous employment such as match factories[16] release of children below the age of 18 years who are detained in jails in different states etc[17].

4. Right to get pollution-free water and air[18]:-

In Murli S. Deora V/s. Union of India[19]

The Supreme Court ordered the prohibition of smoking in public places to protect the health of non-smokers.

Likewise, PIL has been issued in various other spheres, such as protecting ecology and the environment from pollution, giving jobs to the disabled, providing education to the children of prostitutes, etc.

NOTES

Writs in Particular[20]:-

Arts 32 and 226 confer writ jurisdiction on the Supreme Court and High Courts, respectively. A writ is an instrument or order of the court by which it directs an individual or an administrative authority to do some act or abstain from doing something. Courts can issue the following types of writs, viz.

1. Habeas corpus[21]:-

Meaning:-

The Latin phrase ‘habeas corpus’ means ‘have the body’. By this writ, the court directs the person or authority who has detained the person to bring the prisoner’s body before the court so that the court will decide the validity, jurisdiction or justification for such detention. The object of this writ is to release a person from illegal detention and not to punish the detaining authority. However, in appropriate cases, the court may award monetary compensation to a person detained illegally[22].

Who may apply:-

A person illegally detained may apply for the writ of habeas corpus, but if the prisoner himself cannot make such an application, it can be made by any other person with interest in the prisoner, e.g. his wife, father, brother, or friend, etc.

Procedure:-

every application for the writ of Heabs corpus shall be accompanied by an affidavit[23] of the applicant and should state all the facts and circumstances of an illegal arrest.
if the court is satisfied that there is prima facie[24] case for granting the prayer, it will issue a rule nisi calling upon the detaining authority on a specified day to show cause as to why the rule nisi (interim order of release) should not be made absolute.
On the specified day, the court will consider the merits of the case and pass an appropriate order.
a) if the court is satisfied that the detention was not justified, it will issue the writ and direct the detaining authority to release the prisoner forth with, or
b) On the other hand, if the court finds that the detention was justified, the rule nisi (interim order of release) will be discharged.

In Icchu Devi V/s. Union of India[25]

The Supreme Court, in this case, treated an ordinary postcard sent by a detenue from jail as a writ petition and ordered the examination of the legality of detention.

Even during an emergency, a writ of habeas corpus to enforce the fundamental right guaranteed under Art. 20 and 21 are maintainable.

2. Mandamus[26]:-

Meaning:-

Mandamus means a command. It is an order issued by a court to a public authority asking it to perform a public duty imposed upon it by the Constitution or any other law.

Mandamus can be granted only when:-

i) a legal duty is imposed on the authority in question; and
ii) the petitioner has the legal right to compel the performance from such public authority.

Who may apply:-

A person whose right has been infringed may apply for a writ of mandamus. Thus in the case of an incorporated company, the petition should be filed by the company itself.

Against whom mandamus would lie[27]:-

Writ of mandamus is available against Parliament and Legislatures, against courts and tribunals, against the government and its officers, against local authorities like municipalities, and Panchayats, against State-owned corporations, against universities and other educational institutions, against election authorities and other authorities falling under the definition of State under Art.12 of the Constitution.

In G.S.F. Corporation V/s. Lotus Hotels (p) Ltd[28]

Fact: The corporation entered into an agreement with Lotus Hotel to provide finance for the construction of a hotel, but the corporation did not release the funds.

Held: The Gujarat High Court issued a writ of mandamus against the corporation to release the funds as agreed.

3) Prohibition[29]:-

Meaning nature and scope:-

It is a judicial writ. The writ of prohibition can be issued by the superior court (i.e. the Supreme Court or a High Court) to an inferior court or Tribunal or authority forbidding it from continuing with a proceeding or suit on the ground that the proceeding or case is without or in excess of jurisdiction. This writ is based on the principle’ prevention is better than cure’.

When issued:-

The writs of ‘prohibition and certiorari’ are issued when an inferior court or Tribunal acts without or in excess of jurisdiction, violates principles of natural justice, or acts under a law that is ultra vires or contravenes fundamental rights.

Who may apply:-

Where the defect of jurisdiction is apparent on the face of proceedings, an application for prohibition can be brought not only by the aggrieved party but also by a stranger.

Against whom it lies:-

Since a writ of prohibition is a judicial writ, it may be issued against courts, tribunals and other quasi-judicial authorities such as tax authorities, customs authorities, settlement officers, etc.

The distinction between ‘writ of prohibition’ and ‘writ of certiorari[30]‘:-

Both the writs of prohibition and writ of certiorari are judicial writs issued by the superior court (i.e. Supreme Court or High Court) against (inferior) courts and Tribunals. However, they differ in the point of time of its issuance.

The writ of certiorari is issued to quash the decision already given. Whereas the writ of prohibition is issued to prevent the exercise of the wrong jurisdiction by the lower court in a proceeding before it.

4) Certiorari[31]:-

Meaning:-

Certiorari means to certify. In England, certiorari requires that a superior court (for instance, the King’s Court) certify to the King that a lower court or Tribunal has acted properly in a particular case. The King’s court then calls for the record of a subordinate court connected with the proceeding of any case, and if it is found that the lower court’s order, decision, or determination was palpably wrong, the court will quash it.

In India, the writ of certiorari is issued either to quash a decision of the lower court or Tribunal on the ground of excess jurisdiction.

Grounds of issue[32]:- A writ of certiorari may be issued on the following facts:-

1. Jurisdiction:-

When an inferior court or Tribunal acts without jurisdiction vested in it by law, fails to exercise jurisdiction vested in it, or abuses the jurisdiction, a writ of certiorari is to be issued against it. In R. V/s. Minister of Transport[33]

Facts:- The minister was not empowered to revoke a license; still, he passed an order of revocation.

Held: The order was quashed on the ground because it was without jurisdiction and, therefore, ultra vires.

2. To correct errors apparent on the face of the record[34]:-

If there is an error of law apparent on the face of the record in a decision of an inferior court or a tribunal, it may be quashed by the writ of certiorari.

3. Violation of natural justice[35]:-

A writ of certiorari is issued on violation of principles of natural justice by a subordinate court or Tribunal.

Who may apply:-

Generally, the person whose right has been affected may apply for the writ of certiorari. However, if the question affects the public at large, any person may apply.

5) QUO WARRANTO[36]:-

Meaning: –

Quo Warranto’ means ‘what is your authority’ or ‘show your authority’. It is issued against an occupier[37] or usurper of an independent substantive public office, franchise, or liberty to show by which authority he holds the same. If he is found holding such public office, franchisee, or liberty, to show by what authority he holds the same. If he is found holding such public office, franchise, or liberty without authority, the writ of Quo- Warranto ousts him from his office. However, the writ also protects the holder of a public office from being deprived of that office illegally.

In K.B. Raju V/s. A.P. [38]

Held- the Andhra Pradesh High Court quashed the appointment of the Government pleader on the ground that the rules for the said appointment were not complied with.

Who may apply –

An application for a writ of quo warranto challenging the legality and validity of an appointment to a public office may be made by any private person even though he is not personally aggrieved or interested in the matter.

*****

[1] Article

[2] संक्षिप्तपणे/लवकर

[3] उच्च न्यायालयामार्फत मूलभूत हक्काची अंमलबजावणी

[4] विस्तृत

[5] लेखादेष/अर्ज

[6] अर्ज कोण करु शकतो?

[7] अधिकृत हक्काचा नियम

[8] हिरावून घेणे

[9] जनहित याचिका

[10] जनहित याचिकेची उदाहरणे

[11] वेठबिगारांची मुक्तता

[12] AIR 1983 SC 803

[13] अमानवी वागणूकीपासून संरक्षण

[14] AIR 1980 SC 1759

[15] Lakshmi Kant Pandya V/s. Union of Indian (1984) 2 SCC 244

[16] Seela Barse V/s. Union of India (1986)3 SCC 596

[17] (1953) 2 Question Bank 18

[18] प्रदूशणमुक्त हवा, पाणी मिळविण्याचा अधिकार

[19] (2002) SC

[20] अर्ज/लेखादेष

[21] बंदीप्रत्यक्षीकरण/ बंदीवान व्यक्तीला कोर्टापुढे हजर करणे जेनेकरून त्याचा बंदिवास योग्य की अयोग्य याची पडताळणी करणे

[22] In Thameen Ansari’s Case (Reported in Indian Express, Dt. May. 5, 2003)

Facts– The Madras High Court has directed the State Government to pay a compensation of Rs. 1 lakh to Thameer Ansari for his wrongful detention for four months under the Goondas Act.

[23] प्रतिज्ञालेख

[24] सकृत दर्षनी

[25] But in A.D.M Jabalpur V/s. Shivkant Shukla (AIR 1976 SC 1207)

Held– Supreme Court held that, during the emergency, when suspension of fundamental right has been ordered, no person has locus standi to move any court for a writ of habeas corpus.

[26] परमादेश

[27] कोणाच्या विरुध्द परमादेष

[28] AIR 1983 SC 848;

In State of Bihar V/s. R. K. Jha (AIR 2002 SC 2755)

Held– Administrative decision cannot be taken to override mandamus.

[29] प्रतिशेध

[30] प्रतिबंध व उत्प्रेशण फरक

[31] उत्प्रेक्षण

[32] कोणत्या अधिकारावर उत्प्रेक्षण आदेष

[33] (1934) 1 K.B. 277

[34] सकृतदर्षनी होणारी चूक दुरुस्त करणे

[35] नैसर्गिक न्यायाचे उल्लंघन

[36] अधिकार पृच्छा

[37] व्यापणारी /गिळंकृत करणे

[38] AIR 1981 A.P. 24