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In this article, Alankrita Singh of NUSRL, Ranchi discusses article 32 under the Indian Constitution.

Concept and Purpose

Article 32 of the Indian Constitution gives the right to individuals to move to the Supreme Court to seek justice when they feel that their right has been ‘unduly deprived’. The apex court is given the authority to issue directions or orders for the execution of any of the rights bestowed by the constitution as it is considered ‘the protector and guarantor of Fundamental Rights’.

Under Article 32, the parliament can also entrust any other court to exercise the power of the Supreme Court, provided that it is within its Jurisdiction. And unless there is some Constitutional amendment, the rights guaranteed by this Article cannot be suspended. Therefore, we can say that an assured right is guaranteed to individuals for enforcement of fundamental rights by this article as the law provides the right to an individual to directly approach the Supreme Court without following a lengthier process of moving to the lower courts first as the main purpose of Writ Jurisdiction under Article 32 is the enforcement of Fundamental Rights.

Dr Ambedkar stated 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 other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realized its importance.”

Nature of Writ Jurisdiction

The nature of Writ Jurisdiction provided under this Article is discretionary. There are five important factors for guiding this discretion.

Factors Guiding the Discretion Meaning
1. Locus Standi Right to bring an action or to be heard before a court.
2. Alternative Relief Remedies sought in a lawsuit in various or alternative forms.
3. Res Judicata A case that has been decided.
4. Questions of the Fact An issue that involves resolution of a factual dispute or controversy.
5. Laches A defence to an equitable action, that bars recovery by the plaintiff because of the plaintiff’s undue delay in seeking relief.

Types of Writs

There are five types of Writs as provided under Article 32 of the Constitution:

1. Habeas Corpus

  • Meaning

It is one of the important writs for personal liberty which says “You have the Body”. The main purpose of this writ is to seek relief from the unlawful detention of an individual. It is for the protection of the individual from being harmed by the administrative system and it is for safeguarding the freedom of the individual against arbitrary state action which violates fundamental rights under articles 19, 21 & 22 of the Constitution. This writ provides immediate relief in case of unlawful detention.

  • When Issued?

Writ of Habeas Corpus is issued if an individual is kept in jail or under a private care without any authority of law. A criminal who is convicted has the right to seek the assistance of the court by filing an application for “writ of Habeas Corpus” if he believes that he has been wrongfully imprisoned and the conditions in which he has been held falls below minimum legal standards for human treatment. The court issues an order against prison warden who is holding an individual in custody in order to deliver that prisoner to the court so that a judge can decide whether or not the prisoner is lawfully imprisoned and if not then whether he should be released from custody.

  • Important judgments on Habeas Corpus

The first Habeas Corpus case of India was that in Kerala where it was filed by the victims’ father as the victim P. Rajan who was a college student was arrested by the Kerala police and being unable to bear the torture he died in police custody. So, his father Mr T.V. Eachara Warrier filed a writ of Habeas Corpus and it was proved that he died in police custody.

Then, in the case of ADM Jabalpur v. Shivakant Shukla [1] which is also known as the Habeas Corpus case, it was held that the writ of Habeas Corpus cannot be suspended even during the emergency (Article 359).

While deciding whether Habeas Corpus writs are civil or criminal in nature, it was held in Narayan v. Ishwarlal [2] that the court would rely on the way of the procedures in which the locale has been executed.

This writ has been extended to non-state authorities as well which is evident from two cases. One from the Queen Bench’s case of 1898 of Ex Parte Daisy Hopkins in which the proctor of Cambridge University detained and arrested Hopkins without his jurisdiction and Hopkins was released. And in the case of Somerset v. Stewart wherein an African Slave whose master had moved to London was freed by the action of the Writ.

2. Quo Warranto

  • What does the writ of Quo Warranto mean?

Writ of Quo Warranto implies thereby “By what means”. This writ is invoked in cases of public offices and it is issued to restrain persons from acting in public office to which he is not entitled to. Although the term ‘office’ here is different from ‘seat’ in legislature but still a writ of Quo Warranto can lie with respect to the post of Chief Minister holding a office whereas a writ of quo warranto cannot be issued against a Chief Minister, if the petitioner fails to show that the minister is not properly appointed or that he is not qualified by law to hold the office. It cannot be issued against an Administrator who is appointed by the government to manage Municipal Corporation, after its dissolution. Appointment to public office can be challenged by any person irrespective of the fact whether his fundamental or any legal right has been infringed or not.

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  • The court issues the Writ of Quo Warranto in the following cases:
  1. When the public office is in question and it is of a substantive nature. A petition against a private corporation cannot be filed.
  2. The office is created by the State or the Constitution.
  3. The claim should be asserted on the office by the public servant i.e. respondent.
  • Important Case Laws

In the case of Ashok Pandey v. Mayawati [3], the writ of Quo Warranto was refused against Ms Mayawati (CM) and other ministers of her cabinet even though they were Rajya Sabha members.

Then in the case of G.D. Karkare v. T.L. Shevde [4], the High Court of Nagpur observed that “In proceedings for a writ of quo warranto, the applicant does not seek to enforce any right of his as such nor does he complain of any non-performance of duty towards him. What is in question is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from that office.”

The Writ of quo warranto was denied by the court in the case of Jamalpur Arya Samaj v. Dr D. Ram [5]. The writ was denied on the ground that writ of quo warranto cannot lie against an office of a private nature. And also it is necessary that office must be of substantive character. Whereas in the case of R.V. Speyer [6] the word ‘substantive’ was interpreted to mean an ‘office independent to the title’. Also in H.S. Verma v. T.N. Singh [7], the writ was refused as the appointment of a non-member of the state legislature as C.M. was found valid in view of Article 164(4) which allows such appointment for six months.

3. Mandamus

  • Writ of Mandamus

Writ of Mandamus means “We Command” in Latin. This writ is issued for the correct performance of mandatory and purely ministerial duties and is issued by a superior court to a lower court or government officer. However, this writ cannot be issued against the President and the Governor. Its main purpose is to ensure that the powers or duties are not misused by the administration or the executive and are fulfilled duly. Also, it safeguards the public from the misuse of authority by the administrative bodies. The mandamus is “neither a writ of course nor a writ of right but that it will be granted if the duty is in nature of public duty and it especially affects the right of an individual, provided there is no more appropriate remedy” [8]. The person applying for mandamus must be sure that he has the legal right to compel the opponent to do or refrain from doing something.

  • Conditions for issue of Mandamus
  1. There must rest a legal right of the applicant for the performance of the legal duty.
  2. The nature of the duty must be public.
  3. On the date of the petition, the right which is sought to be enforced must be subsisting.
  4. The writ of Mandamus is not issued for anticipatory injury.
  • Limitations

The courts are unwilling to issue writ of mandamus against high dignitaries like the President and the Governors. In the case of S.P. Gupta v. Union of India [9], judges were of the view that writ cannot be issued against the President of India for fixing the number of judges in High Courts and filling vacancies. But in Advocates on Records Association v. Gujarat [10], the Supreme Court ruled that the judges’ issue is a justiciable issue and appropriate measures can be taken for that purpose including the issuance of mandamus. But in C.G. Govindan v. State of Gujarat [11], it was refused by the court to issue the writ of mandamus against the governor to approve the fixation of salaries of the court staff by the Chief Justice of High Court under Article 229. Hence, it is submitted that the Governor or the President means the state or the Union and therefore issuance of mandamus cannot take place.

  • Important Judgements

In Rashid Ahmad v. Municipal Board [12], it was held that in relation to Fundamental Rights the availability of alternative remedy cannot be an absolute bar for the issue of writ though the fact may be taken into consideration.

Then, in the case of Manjula Manjori v. Director of Public Instruction, the publisher of a book had applied for the writ of mandamus against the Director of Public Instruction for the inclusion of his book in the list of books which were approved as text-books in schools. But the writ was not allowed as the matter was completely within the discretion of D.I.P and he was not bound to approve the book.

4. Certiorari

  • What does Writ of Certiorari mean?

Writ of Certiorari means to be certified. It is issued when there is a wrongful exercise of the jurisdiction and the decision of the case is based on it. The writ can be moved to higher courts like the High Court or the Supreme Court by the affected parties.

There are several grounds for the issue of Writ of Certiorari. Certiorari is not issued against purely administrative or ministerial orders and that it can only be issued against judicial or quasi-judicial orders.

  • When is a writ of Certiorari issued?

It is issued to quasi-judicial or subordinate courts if they act in the following ways:

  1. Either without any jurisdiction or in excess.
  2. In violation of the principles of Natural Justice.
  3. In opposition to the procedure established by law.
  4. If there is an error in judgement on the face of it.

Writ of certiorari is issued after the passing of the order.

  • Important Judgements on writ of Certiorari

In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court has explained the meaning, ambit and scope of the writ of Certiorari. Also, in this it was explained that Certiorari is always available against inferior courts and not against equal or higher court, i.e., it cannot be issued by a High Court against any High Court or benches much less to the Supreme Court and any of its benches. Then in the case of T.C. Basappa v. T. Nagappa & Anr. [13], it was held by the constitution bench that certiorari maybe and is generally granted when a court has acted (i) without jurisdiction or (ii) in excess of its jurisdiction. In Hari Bishnu Kamath v. Ahmad Ishaque [14], the Supreme Court said that “the court issuing certiorari to quash, however, could not substitute its own decision on the merits or give directions to be complied with by the court or tribunal. Its work was destructive, it simply wiped out the order passed without jurisdiction, and left the matter there.” In Naresh S. Mirajkar v. State of Maharashtra [15], it was said that High Court’s judicial orders are open to being corrected by certiorari and that writ is not available against the High Court.

5. Prohibition

  • What does Writ of Prohibition mean?

It is a writ directing a lower court to stop doing something which the law prohibits it from doing. Its main purpose is to prevent an inferior court from exceeding its jurisdiction or from acting contrary to the rules of Natural Justice.

  • When is the writ of Prohibition issued?

It is issued to a lower or a subordinate court by the superior courts in order to refrain it from doing something which it is not supposed to do as per law. It is usually issued when the lower courts act in excess of their jurisdiction. Also, it can be issued if the court acts outside its jurisdiction. And after the writ is issued, the lower court is bound to stop its proceedings and should be issued before the lower court passes an order. Prohibition is a writ of preventive nature. The principle of this is ‘Prevention is better than cure’.

  • Important Case Laws

In case of East India Commercial Co. Ltd v. Collector of Customs [16], a writ of prohibition was passed directing an inferior Tribunal prohibiting it from continuing with the proceeding on the ground that the proceeding is without or in excess of jurisdiction or in contradiction with the laws of the land, statutes or otherwise. Then in the case of Bengal Immunity Co. Ltd [17], the Supreme Court pointed out that where an inferior tribunal is shown to have seized jurisdiction which does not belong to it then that consideration is irrelevant and the writ of Prohibition has to be issued as a right.

Amendments to Article 32

‘Anti-freedom’ clauses were included in Article 32 by the 42nd Amendment. Such an amendment was made during the time of emergency when it was passed to reduce ‘both directly and indirectly’ the jurisdiction of the Supreme Court and the High Courts to review the application of fundamental rights. Then 43rd amendment of the Indian Constitution was passed which repealed Article 32A immediately after the emergency was revoked. Following the amendment, the Supreme Court again gained the power to quash the state laws. Also, the High Courts got the power to question the constitutional validity of central laws.

Limitations to Article 32

There are certain circumstances during which the citizens do not get the privileges which they ought to under Article 32. Therefore, the situations when the fundamental rights may be denied to the citizens but the constitutional remedies will not be available i.e. Article 32 will not be applicable are:

  • Under Article 33, the Parliament is empowered to make changes in the application of Fundamental Rights to armed forces and the police are empowered with the duty to ensure proper discharge of their duties.
  • During the operation of Martial law in any area, any person may be indemnified by the Parliament, if such person is in service of the state or central government for the acts of maintenance or restoration of law and order under Article 34.
  • Under Article 352 of the Constitution when an emergency is proclaimed, the guaranteed Fundamental Rights of the citizens remains suspended. Also, Fundamental Rights guaranteed under Article 19 is restricted by the Parliament under Article 358 during the pendency of an emergency.
  • Article 359 confers the power to the President to suspend Article 32 of the Constitution. The order is to be submitted to the Parliament and the Parliament may disapprove President’s order.

Conclusion

The constitutional remedies provided to the citizens are the powerful orders with immediate effect. And the writs are mostly invoked against the state and are issued when PILs are filed. The Writ Jurisdictions which are conferred by the Constitution though have prerogative powers and are discretionary in nature and yet they are unbounded in its limits. The discretion, however, is exercised on legal principles. Therefore, the first essential on which the constitutional system is based in the absence of arbitrary power. Hence, the decision must be taken on the basis of sound principles and rules and should not be based on whims, fancies or humour. And if a decision is not backed by any principles or rules, then such a decision is considered arbitrary and is taken not in accordance with the rule of law.

 

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[1] (1976)2 SCC 521

[2] AIR 1965 SC 1818

[3]AIR 2007 SC 2259

[4] AIR 1952 Nag. 333.

[5] AIR 1954 Pat 297

[6] (1916) 1 K.B. 595.

[7] 1971(1) SCC 616.

[8] R.V. Dusheath (1950)2 All ER 741 at p. 743 per Lord Goodard C.J.

[9] AIR 1982 SC 149

[10] (1993) 4 SCC 441

[11] (1998)7 SCC 625

[12] AIR 1952 Orissa 344

[13] 1954 AIR 240

[14] AIR 1955 SC 233

[15] AIR 1967 SC 1

[16] 1962 AIR 1893

[17] AIR 1955 SC 661

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