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Right to constitutional remedies – Analysis of Article 32 of the Indian Constitution

January 10, 2019
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In this article, Kabir Jaiswal does analysis of Article 32 of the Constitution of India.

Article 32 is the “soul of the Constitution and the very heart of it”.

The best conferment of the Constitution is the Fundamental Rights. Somehow or another, they frame the rampart of our Constitution. Each one of these Rights is trivial if there exists no instrument to authorize them. Article 32 gives such a component. That is the reason it is the gem, the delegated wonder, the heart, and the spirit of the Constitution.

Right to constitutional remedies

To know more about right to constitutional remedies in brief, please refer to the video below:

What is WRIT?

A precept in writing, couched in the form of a letter, running in the name of the king, president, or state, issuing from a court of justice, and sealed with its seal, addressed to a sheriff or other officer of the law, or directly to the person whose action the court desires to command, either as the commencement of a suit or other proceeding or as incidental to Its progress, and requiring the performance of a specified act, or giving authority and commission to have it done. For the names and description of various particular writs, see the following titles.

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Constitutional Philosophy of Writ Jurisdiction

An individual whose privilege (Fundamental Right) is encroached by an arbitrary administrative action may approach the Court for a suitable remedy. Article 32(2) of the Constitution of India gives: “The Supreme Court will have the capacity to issue bearings or requests or writs, incorporating writs in the idea of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever might be suitable, for the requirement of any of rights given by this Part.”  Article 32 is a basic Right directly under Part – III of the Constitution. Under this Article, the Supreme Court is enabled to loosen up the customary standard of Locus Standi and permit general society to intrigue case in the name of public interest litigation (PIL).

Comparative Analysis of Article 32 & 226

Article 32 isn’t to be conjured for encroachment of an individual right of the agreement (contract), nor is to be summoned for unsettling questions which are fit for transfer under other laws. Article 226(1) of the Constitution of India, on the other hand says,” Notwithstanding anything in Article 32, every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose.”

As is obvious from the uncovered dialect, this Article ensures a person to move the High Court for implementation of the fundamental rights and also for implementation of some other lawful right. Article 226 gives wide powers on the High Courts. It fills in as a major repository of legal capacity to control organization. Its capacity under Article 226 can’t be diminished by enactment. In this manner, forces of High Courts gave under Article 226 are more extensive when contrasted with forces presented on the Supreme Court under Article 32 of the Constitution of India.

Types of WRITS

How a Writ of Habeas Corpus is filed?

  1. An application for habeas corpus can be made by any person on the behalf of the prisoner/detenu as well as the prisoner/detenu himself.
  2. Even a letter to the judge mentioning illegalities committed on prisoners in jail can be admitted. In Sunil Batra v. Delhi Administration., a convict had written a letter to one of the Judges of the Supreme Court alleging inhuman torture to a fellow convict. The late justice Krishna Iyer treated this letter as a petition of habeas corpus and passed appropriate orders.
  3. Courts can also act Suo motu in the interests of justice on any information received by it from any quarter/source.

Habeas Corpus is not issued in certain cases

  1. Where the person who is detained or against whom the writ is issued is not within the jurisdiction of the Court.
  2. To save the release of a person who has been imprisoned by a Court for a criminal charge.
  3. To interfere with a proceeding for contempt by a Court of record or by Parliament.

Thus, writ of habeas corpus is a bulwark of personal liberty. It has been described as “a great constitutional privilege” or “first security of civil liberty”. The most quintessential element is a speedy and effective remedy.

Notable Cases for Writ of Habeas Corpus:

Mandamus

The necessary conditions for the issue of the writ of mandamus are:

1. Error of jurisdiction = Lack of jurisdiction/ Excess of jurisdiction.
2. Jurisdictional facts
3. Violation of the principles of natural justice = Principles of Rule against bias and Rule of Audi alterum partem
4. Error of law apparent on the face of record
5. Abuse of jurisdiction.
  1. Their ought to be a legal right of the applicant for the performance of the legal duty.
  2. The nature of the duty must be public. In The Praga Tools Corporation v. C.V. Imanual, and Sohanlal v. Union of India,the Supreme Court stated that mandamus might under certain circumstances lie against a private individual if it is established that he has colluded with a public authority.
  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. But Anybody who is likely to be affected by the order of a public officer is entitled to bring an application for mandamus if the officer acts in contravention of his statutory duty

In India, mandamus will lie not only against officers who are bound to do a public duty but also against the Government itself as Article 226 and 361 provided that appropriate proceedings may be brought against the Government concerned.

Further, Mandamus will not be granted against the following  persons:

  1. The President or the Governor of a State, for the exercise and performance of the powers and duties of his Office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. In India, it will not lie upon the President and the Governor of a State in their personal capacities.
  2. Mandamus does not lie against a private individual or body whether incorporated or not except where the State is in collusion with such private party, in the matter of contravention of any provision of the Constitution or a Statute or a Statutory Instrument.
  3. It will not lie against the State legislature to prevent from considering enacting a law alleged to be violative of constitutional provisions.
  4. It will not lie against an inferior or ministerial officer who is bound to obey the orders of his superiors.

Hence the writ of mandamus is to protect the interest of the public from the powers given to them to affect the rights and liabilities of the people. This writ makes sure that the power or the duties are not misused by the executive or administration and are duly fulfilled. It safeguards the public from the misuse of authority by the administrative bodies. Thus, Writ of Mandamus is a general remedy whenever justice has been denied to any person.

Landmark Cases for Writ of Mandamus

Prohibition

1. Absence or Excess of jurisdiction
2. Violation of the principles of natural justice
3. Unconstitutionality of a Statute
4. Infraction of Fundamental Rights.

Landmark Case Laws for Writ of Prohibition

Certiorari

Ways in Which a Writ of Certiorari is Issued?

Certiorari is not issued against purely administrative or ministerial orders and that it can only be issued against judicial or quasi-judicial orders.

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

The conditions necessary for the issue of the writ of certiorari are:

1. Anybody of persons.
2. Having legal authority
3. To determine questions affecting the rights of subjects
4. Having the duty to act judicially.
5. Act in excess of legal authority

The grounds on which the writ of certiorari may be issued are:

1. Error of Jurisdiction   Lack of jurisdiction.
2. Excess of jurisdiction. a)     Abuse of jurisdiction.
b)   Error of law apparent on the face of the record.
c) Violation of principles of natural justice.

Landmark Cases On Writ of Certiorari

Quo Warranto

The writ is issued to the person ousting him from holding a public post to which he has no right. It is used to try the civil right to a public post. Accordingly, the use of the writ is made in cases of usurpation of a public office and removal of such usurper. Conversely, it protects citizen from being deprived of public office to which he may have a right. A petition for the writ of Quo Warranto can be filed by any person though he is not an aggrieved person.

The conditions necessary for the issue of a writ of Quo Warranto are:

  1. The office must be public and it must be created by a statute or by the constitution itself. In the case of Jamalpur Arya Samaj v. Dr D. Ram , 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.
  2. The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.
  3. There has been a contravention of the Constitution or a statute or statutory instrument, in appointing such person to that office.
  4. The claim should be asserted on the office by the public servant i.e. respondent.

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.

Conclusion

In the hands of the Supreme Court PIL in India has taken a multidimensional character. The deep-rooted ill-disposed framework has been given a pass by. With the coming of legal activism, letters, paper reports, dissensions by open lively people, social activity bunches conveying to the notice of the Court in regards to infringement of major rights were managed regarding them as writ petitions and the alleviation of pay was additionally allowed through writ jurisdiction.

Article 32 gave to the subjects are the incredible powers with prompt impact. Furthermore, the writs are generally summoned against the state and are issued when PILs are recorded. The Writ Jurisdictions which are presented by the Constitution, however, have privilege controls and are optional in nature but then they are unbounded in its breaking points. The carefulness, in any case, is practiced on legitimate standards.

Hence, obviously immense forces are vested with the Judiciary to control a managerial activity when it encroaches fundamental privileges of the subjects or when it goes past the soul of Grundnorm of our nation i.e Constitution of India. It guarantees the Rule of Law and appropriate check and equalizations between the three organs of our vote-based framework. The rationality of writs is very much synchronized in our Constitutional arrangements to guarantee that privileges of nationals are not smothered by a self-assertive authoritative or Judicial activity.

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