This article is by Shivi Khanna, a student of School of Law, Sushant University, Gurugram. This article is an attempt to understand the origin, history and efficacy of the writ of Quo Warranto.
It has been published by Rachit Garg.
Article 32 of the Indian Constitution (hence referred to as the “Constitution”) is the guardian and shield that serves to protect the individual’s fundamental rights, given in Part III of the Constitution. According to the words left behind by Dr. B.R Ambedkar, Article 32 is the most important Article, and it embodies the “very heart and soul” of the Constitution. Indeed, in order to be called ‘rights’ in the first place, having an effective remedy to combat the breach of one’s fundamental rights is essential. The Constitution-makers arranged for a remedy in the form of Article 32 and Article 226. These Articles allowed for the Courts to issue writs – orders issued in the name of the sovereign necessitating the performance of a certain act.
Article 32 grants the Supreme Court with the power to issue five types of writs: habeas corpus, mandamus, prohibition, certiorari and quo warranto. The Supreme Court can also issue writs “in the nature of” the five aforementioned writs, allowing the Court to have a wider scope of movement in the enforcement of justice. The writ jurisdiction of Article 32 only covers the protection of fundamental rights by the Supreme Court, whereas, Article 226 grants the High Courts the power to issue the five types of writs, or any other purpose.
What is Quo Warranto
The maxim quo warranto means “by what authority” and this writ is issued to prevent a ‘usurper’ from wrongfully occupying a substantive public office, enjoying certain privileges and franchise from that public office, when he does not have the authority to do so. The person being appointed to the public office must show by what authority he occupies it, in order for it to be considered a valid appointment.
History and later developments of the writ of Quo Warranto
The origins of the concept of writ jurisdiction can be found in early English law. Quo warranto used to be issued by the Crown against any person occupying or usurping a public office, availing franchise or privilege of the Crown – to show by what authority the usurper justified his claim. In India, during the Pre-Constitution period, the writ of quo warranto was not used frequently and was gradually replaced by proceedings in the nature of quo warranto. According to Section 9 of the Administration of Justice (Miscellaneous Provisions) Act 1938, information in the nature of quo warranto came to an end. The three High Courts in the Presidency towns, before the Constitution came into effect in 1950, possessed the authority to issue the writ of quo warranto within the limits of their original jurisdiction. With the advent of the Constitution in 1950, Articles 32 and 226 emerged and granted the Supreme Court and High Courts, respectively, the power to issue writs, including the writ of quo warranto.
Who can file the writ of Quo Warranto
The following conditions are required to apply to the court to issue a writ of quo warranto:
- There is no bar or restriction on who can apply. Any person can apply as long as their fundamental or any other legal right is being breached. In cases where there is no breach of right, a question of public interest must arise with respect to the application.
- The application made by the applicant should be bona fide.
- The application should not be made for the sake of certain hidden political struggle or undercurrent. The applicant should act in public interest, and not expect any benefit or unethical gain through making the application.
Grounds of issuing the writ of Quo Warranto
The writ of quo warranto can be issued under the following cases:
- When a public office (created by law or the Constitution) is occupied by a private person, who does not actually have the authority to do so.
- The public office must be substantive in character. The duties connected to the office must also be public in nature.
- The usurper, whose authority is being challenged, must be holding his position at the time the challenge is made.
- Even if a person was qualified at one point of time, the writ of quo warranto can be issued against him if he loses his qualifications.
Conditions for issuing the writ of Quo Warranto
The writ of quo warranto applies in the case of an office which is public and not private in nature, i.e established by law or the Constitution. The public office must be substantive in nature, which excludes mere employment or function of a servant at the pleasure of another.
The writ can be successfully applied in a case where
- The usurper does not have the requisite qualifications to hold the public office.
- The usurper exercises certain rights or privileges with respect to the public office he wrongfully occupies.
The Court needs to have strong and concrete justification if it wants to interfere with cases associated with election. The Court can only interfere by issuing the writ of quo warranto where:
- The election does not have the sanction of the law;
- There was a problem where people’s right to express their opinions was being curtailed;
- The electoral roll was unlawfully made and used.
In cases where the inconsistency in the election does not affect the end result, or the problem is not severe enough, the Court usually does not interfere. The Court also does not take action when the applicant’s intentions are shady, with respect to the problems concerned with election.
Procedure to follow if Quo Warranto has to be issued
Article 32(1) grants the Supreme Court the power to issue writs, orders, directions through “appropriate proceedings” for the purpose of enforcing fundamental rights covered under Part III of the Constitution. The procedure for issuing writs is not rigid and has not been stipulated in the Constitution. As India is a diverse country with a plethora of social issues such as poverty, exploitation and lack of awareness, it would not be conducive to enforce fundamental rights if the process for doing so is too complicated and ‘straight-jacketed.’ The Court may either take suo motu cognisance of the case, or entertain a PIL (public interest litigation) concerned with the case.
When can the writ of Quo Warranto be refused
The Court has the discretion to refuse to grant quo warranto in cases where:
- The Court’s interference would not change the end result;
- The case is vexatious;
- The defendant no longer wrongfully occupies public office.
Case laws on the writ of Quo Warranto
Amarendra Chandra v. Narendra Kumar Basu, (1951)
In this case, the members of the Managing Committee of a school in Calcutta were the respondents. The application for quo warranto was prayed for, to question the authority by which these members occupied their posts. The Court held that the writ of quo warranto would not be applicable to an office of a private nature.
G.D Karkare v. T.L Shevde, (1952)
In G.D Karkare v. T.L Shevde, (1952), the appointment of a non-applicant as Advocate-General of Madhya Pradesh by the Governor was challenged. The non-applicant had already crossed the age of 60 and retired from his post as a High Court Judge. As such, based on Article 165(1), since he was no longer a High Court Judge, he was not qualified to be appointed as Attorney-General. Here, the Court observed that it was not merely confined to enforcing fundamental rights based on Article 226(1). The phrase “for any other purpose” in Article 226 empowered the Court to act on any object it considered appropriate and in the exercise of its powers. There is no reason that the same cannot be applied to issuing the writ of quo warranto.
Furthermore, in the proceedings for the writ of quo warranto, the non-applicant does not seek to enforce his fundamental rights or complain of any non-performance of duty towards himself. The main issue was whether the non-applicant has the right to occupy the office and whether the order passed is an order ousting the non-applicant from his position.
University of Mysore v. CD Govinda Rao, (1963)
In this case, the University of Mysore had set up recruitment advertisements for the positions of professor and reader. The eligibility for the posts would be decided on the basis of the list of criteria made by the University. The petition was put forward to issue the writ of quo warranto based on the fact that an unqualified person, not meeting the criteria was recruited and appointed as reader in English. It was observed by the Supreme Court that to issue the writ of quo warranto, the person who wrongfully occupies the public office, must be holding an office of a ‘substantive’ nature.
Mahesh Chandra Gupta v. Dr. Rajeshwar Dayal and Ors, (2003)
In Mahesh Chadra Gupta v. Dr. Rajeshwar Dayal and Ors, (2003), the appointment of the respondent as a professor of Paediatrics in S.N Medical College in Agra was questioned. However, it was found that the appellant had no connection or interest whatsoever with the appointment and was not adversely affected in any way. The Court referred to the case Bindra Ban v. Sham Sunder (1959), where the locus standi was relaxed for applying for the writ of quo warranto. However, even so, a person cannot apply for quo warranto when he does not have even the remotest connection to the appointment of the public office which is being challenged. By allowing such applications, the Court would be flooded by such petitions.
Even if the locus standi is relaxed, there must be certain connection between the petitioner and the appointment to the public office, no matter how remote for quo warranto to be maintainable.
S. Chandramohan Nair v. George Joseph, (2010)
In S. Chandramohan Nair v. George Joseph, (2010), the appointment of the appellant as a member of the State Consumer Commission was challenged on the ground that his name was not recommended by the Selection Committee. Here, the respondent had no relation to the State Commision and failed to prove how the appointment would adversely affect the samiti of which he was a general secretary. The Court labelled the respondent a ‘busybody’ and ‘interloper’. The Supreme Court observed that the Division Bench of the Kerala High Court erred by issuing the writ of quo warranto, thus quashing the appellant’s appointment to the State Commission.
Rajesh Awasthi v. Nand Lal Jaiswal, (2013)
In Rajesh Awasthi v. Nand Lal Jaiswal, (2013), it was laid down that quo warranto applies where an appointment is made which is “contrary to statutory provisions” and came up with a test to determine whether a person is eligible/qualified to hold office as per the stipulations of law. The key point is to see if the office holder has the qualifications to hold office as per law or not, with respect to statutory provisions.
Critical analysis of the writ of Quo Warranto
Elements of Quo Warranto
- For issuing the writ of quo warranto, the following ingredients are necessary:
- Wrongful occupation;
- Nature of the office being public, not private;
- Substantive character;
- Contrary to statutory provisions or the law.
- For quo warranto, with respect to Article 226(1), it is not necessary that there must be a breach of fundamental rights or a non-performance of duty. The main issue is – whether the usurper has the authority to hold the office, and if not, then the order passed is an order to oust the usurper from his post.
- Even though the locus standi for quo warranto is relaxed compared to writs such as certiorari and mandamus, the applicant must not be completely unrelated to the appointment and office in question. Even if the connection is remote, the ‘link’ itself must exist.
- In cases of election, where the applicant is not adversely affected or the end result would not change despite the interference of the Court, the Court usually takes a stance of non-interference.
- The applicant must not have any malafide or ulterior motives for applying for quo warranto. The purpose of the applicant should be inclined towards acting for the benefit of public interest, and not for personal gain.
The concept of Quo Warranto in other countries
The Crown started the practice of issuing prerogative writs (writs with a special relationship to the Crown), thus elevating prerogative writs and the Crown’s justice supreme over the other courts. The Crown used the writ of quo warranto to prevent the wrongful usurpation of public offices, and associated rights, privileges and franchise by its subjects, predominantly the lords of the nobility. By showing with what right or authority they claimed their office, the office-holders justified their claim. During the era of colonisation, English law left its mark on the commonwealth countries and its colonies (including India). The concept of writs in Indian law can find its origins in English law.
In California, USA, to apply for the writ of quo warranto, the approval of the Attorney-General is required. If leave to sue is granted, then the applicant or relator must proceed under the supervision of the Attorney-General. If the usurper holding the office is found to be holding it without authority or wrongfully, then, the Court may issue a writ of quo warranto to remove him.
In Australia, the writ of quo warranto inquires into the justification, or by what authority a person holds a franchise or an office. The usurper may be ‘deemed’ to hold an office wrongfully, and the writ can be brought about by both the Crown or a person.
To summarise, Articles 32 and 226 serve as the guardians of fundamental rights enshrined in Part III of the Indian Constitution. These Articles prevent the legislative and the executive from infringing on the rights of the people, which have been guaranteed to them by the Constitution. The independent judiciary has been tasked with interpreting the Constitution and it fulfils the right to constitutional remedies through writs. The writ of quo warranto acts as a scanner to inquire into the legitimacy of holders of substantive public offices.
Public offices are vital toward the day-to-day and overall smooth functioning of the nation. To have unqualified people sitting in these important offices is a very serious concern. Quo warranto curbs nepotism, corruption, and irregularity and allows for applications to remove unqualified people from these important positions. Despite being a legacy of the colonial era, the writ of quo warranto is still significant and relevant, especially with respect to preserving the sanctity of public offices and elections in India.
- J.N Pandey, Constitutional Law of India, 54th Edition
- Sumeet Malik, V.D Kulshreshtha’s Landmarks in Indian Legal and Constitutional History, EBC, Lucknow
- M.P Jain, Indian Constitutional Law, 7th Edition, LexisNexis
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