This article is written by Nitin Kumar pursuing a Mergers and Acquisitions at Lawsikho. This article has been edited by Ojuswi (Associate, Lawsikho).
This article has been published by Sneha Mahawar.
One of the defining principles of Common Law is “Ubi Jus, Ibi Remedium”. This maxim means “where there is a right, there is a remedy”. The right to a remedy has been acknowledged as a fundamental right in all legal systems historically.
Under Article 32 of the Indian constitution, every citizen of India has been given the right to seek constitutional remedy from the Supreme Court if they have been deprived of their fundamental rights. The Supreme Court is responsible for the administration of justice and also acts as the guardian of the constitution and the protector of fundamental rights. It would be meaningless to grant fundamental rights but not provide remedies for the enforcement of the rights if they are violated.
This article discusses various aspects of Article 32, including historical and philosophical grounds, as well as the latest developments.
The Indian Constitution in Part III (Article 12 to 35) contains the Fundamental Rights. It is the charter of freedom of the citizens of India. It is what the Magna Carta was; it contains the essential freedoms of the people of India. Article 32 is a constitutional safeguard for these rights. Dr B.R Ambedkar had referred to it as “the very soul of the Constitution and the very heart of it” during the Constituent Assembly debates.
H. M Seervai, the learned senior advocate and jurist in his works H.M. Seervai’s Constitutional law of India, noted that “it is not surprising that the Constituent Assembly found in these writs the most effective means of enforcing a fundamental right.”. Seervai further noted that – as long as these rights are not amended, the powers conferred by them cannot be taken away, any such law would be void under Article. 13.
Constitutional philosophy of writs
If an administrative action arbitrarily violates fundamental rights, the remedy can be sought by approaching the courts. Writ jurisdiction is conferred through Article 32 and Article 226 respectively upon the Supreme Court and High Courts.
The right to constitutional remedy was considered by Dr. Bhim Rao Ambedkar as the heart and soul of the constitution. M. Patanjali Sastri, the 2nd CJI opined that the Supreme Court should regard itself “as the protector and guarantor of fundamental rights,” and should declare that “it cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection..”
Justice Gajendragadkar In the case Prem Chand Garg v Excise Commissioner said “Court has to play the role of a ‘sentinel on the qui vive’ and it must always regard it as its solemn duty to protect the said Fundamental Rights ‘zealously and vigilantly’.
In his judgment, in the case of Bandhua Mukti Morcha vs Union Of India & Others 1984 AIR 802, Justice P.N. Bhagwati highlighted the constitutional philosophy of the right to constitutional remedies – “the Supreme Court would not be constrained to fold its hands in despair and plead its inability to help the citizen who has come before it for judicial redress but would have the power to issue any direction, order or writ..”
Nature and scope of Article 32
Writs are prerogative remedies. Article 32 is itself a Fundamental Right and the Supreme Court’s jurisdiction under article 32 is mandatory by nature and not discretionary. The writ jurisdiction of High Courts are discretionary and intrinsic for other purposes. The Scope of Article 32 in comparison to Article 226 is limited. The Supreme Court can’t be approached for any other legal right other than fundamental rights. An important feature of Article 32 is that it is not found alongside other articles that define the Supreme Court’s General Jurisdiction (Article 124-147).
A palpable question arises, can writs be maintainable against a party that ceases to act as a private entity and takes up roles of public nature? In the case of the Board of Control For Cricket vs Cricket Association Of Bihar, the Supreme Court examined the nature of public duties and functions, opening that BCCI as an organization performed “clearly public functions” as the nature of functions and duties undertaken were inherently public.
Types of writs
Five types of writs are provided under the Indian Constitution which can be issued by the Courts. They are:
The Writ of Habeas Corpus is issued in such cases by the courts when a person is detained illegally. The literal meaning of Habeas Corpus is ‘You have the body.” Providing a remedy against illegal detention is considered as most effective. By the Writ of Habeas Corpus, the Court can command to present before the court such a person who has been detained. The Court asks to provide the grounds for detention and failure to provide reasonable and valid grounds can lead to release immediately.
Rules related to the writ of Habeas Corpus
- The applicant should be in the custody of another
- Habeas corpus is filed by the detainee and the family members but the court may allow such applications by strangers as well.
- The courts can take Suo moto cognizance of information received from any source and act accordingly in the public interest.
- The writ cannot be successively made to different judges of the same court.
- Habeas Corpus will apply if procedures, as required by law, are not followed in arrests made by the police.
- In the landmark case of ADM Jabalpur v. Shivakant Shukla also popularly known as the ‘Habeas Corpus case’, it was held right to not be unlawfully detained can be suspended even during an emergency.
- In the case of Kanu Sanyal v. District Magistrate, the Supreme Court held that the court can examine the legality of the detention without requiring the person detained to be produced.
- In the case of Sheela Barse v. State of Maharashtra, while relaxing the traditional doctrine of locus standi, the Supreme Court allowed prayer on behalf of the detainee.
- In the case of Nilabati Behera v. State of Orissa, the Supreme Court acted on the concept of compensatory jurisprudence to award the petitioner Rs. 1, 50,000 as compensation.
- In the case of Bhim Singh vs. State of Jammu and Kashmir, Rudul Shah v. State of Bihar, and in the case Sebastian Hongray v. UOI it was held by the Supreme Court that in cases of violation of fundamental rights, it is necessary to compensate by way of exemplary costs.
The literal meaning of the word mandamus is command. The Writ of Mandamus is issued for the rightful performance of mandatory and purely ministerial duties and is issued by a superior court to a lower court or government officer to do an act or to abstain from doing an act. This order can also be given to an Inferior Tribunal, Board, Corporation, or any other type of administrative authority.
This Writ of Mandamus can be issued on the following grounds:
- The right must be recognized by law.
- There must have been an infringement of the right of the petitioner.
- The petitioner must have demanded the performance duty but there has been non-performance.
- There is an absence of an effective alternative remedy.
- The petitioner can show duty is owed to him by the authority and hasn’t been performed.
- On the date of the petition, the right must be subsisting.
- The writ of Mandamus is not issued for anticipatory injury.
The Courts can refuse to issue the Writs in the following cases:
- When the right of the petitioner has lapsed.
- The duty has already been fulfilled against which the writ is sought to be issued.
- The writ of Mandamus will not be granted against the President or the Governor of a State.
- Writs cannot be issued against a private entity, except where the State is involved with a private party.
- In the cases of Praga Tools Corporation v. C.V. Imanual, and Sohanlal v. Union of India, the Supreme Court held that mandamus can lie against a private individual if he has colluded with a public authority.
- In the case of Rashid Ahmad v. Municipal Board, it was held that an alternative remedy can’t be an absolute bar for issuing the writ.
- In S.P. Gupta v. Union of India, it was held that a writ of Mandamus cannot be issued against the president and likewise in C.G. Govindan v. State of Gujarat, was refused against the Governor.
This writ is as old as common law. The writ of prohibition means ‘to forbid or to prevent’. It is only available during the pendency of the proceedings and is not an often issued writ. It is an extraordinary remedy by which a Superior Court can direct an inferior court or tribunal or a quasi-judicial body to stop them from deciding upon a case because of lack of jurisdiction. If the court or tribunal lacks jurisdiction and still adjudicates the case, it will be considered invalid because it will be in excess of the sanction of law. The rigidity of writ has liberalized over time, and may also be issued on grounds of natural justice against anybody.
The writ of prohibition can be issued on these grounds:
(i) The inferior court or tribunal has overstepped its jurisdiction;
(ii) The court or tribunal is acting against natural justice;
(iii) Unconstitutionality of a Statute;
(iv) Violation of Fundamental Rights
- In the case of East India Commercial Co. Ltd v. Collector of Customs writ was passed directing an inferior tribunal barring it from adjudicating on the ground that the proceeding was without or in excess of jurisdiction.
- In the case of Brij Khandelwal v. India (1975) Delhi High Court refused to issue a prohibition against the Central Government from its involvement in a boundary dispute agreement with Sri Lanka stating that there is no bar on the government from performing executive and administrative duties.
- In S. Govind Menon v. Union of India (1967) it was held that a writ of prohibition can be issued in both circumstances of excess jurisdiction and absence of jurisdiction.
- Hari Vishnu v. Syed Ahmed Ishaque (1955) This case established a distinction between certiorari and prohibition writs. The writ of prohibition can only be filed during the pendency of proceedings.
Certiorari is a Latin word that means “to certify”. The writ of Certiorari is correct in nature. ‘Certiorari’ is a judicial order issued by the Supreme Court to an inferior Court or quasi-judicial or any administrative body to transfer to the Court of records for their inspection and decide on the legality and validity and if the decision is in contravention of the law. The purpose of this writ is also to take affirmative action, it is both of preventive and curative nature.
The conditions necessary for the issue of the writ of certiorari are:-
- The body or person has legal authority;
- The action must be affecting the rights of the people.;
- Having the duty to act judicially;
- The action must be in excess of their jurisdiction.
Grounds for writ of certiorari:
- Error of jurisdiction
- Lack of jurisdiction
- Excess of jurisdiction
- Abuse of jurisdiction
- Error of law apparent on the face of the record
- Violation of principles of natural justice
- In the case of Naresh S. Mirajkar v. State of Maharashtra, the High Court held that judicial orders are open to correction by the writ of certiorari and the writ is not available against the High Court.
- In the case of T.C. Basappa v. T. Nagappa & Anr, it was held by the constitution bench that a writ of certiorari can be granted when a court has acted either without jurisdiction or when it acts in excess of its given jurisdiction.
- In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court has elucidated upon the meaning and scope of the writ. The court held that Certiorari is available against inferior courts and tribunals but not against equal or any higher court.
‘Quo Warranto’ means ‘by what authority‘. The Writ of ‘Quo Warranto’ inquires into the legality of the holder of a public office and their authority. The writ of Quo Warranto is a method to review the proceedings of the actions of administrative authorities who have been appointed to public office. If it is held that the office holder has no valid title, then the writ of Quo Warranto is issued to oust the office holder. Equally, it also protects anybody holding a public office from being deprived of their legal right. This writ can also be filed by who is not the aggrieved person.
Conditions for Writ of Quo Warranto to be issued:
- The office must be a public office to which has been wrongfully assumed.
- The office was created by a statute or by the constitution itself.
- The duties which arise from this office are public in nature.
- The term of the office should be of permanent nature and it shouldn’t be terminable by any person or authority’s pleasure.
- The person against whom the Writ is to be issued, should be in possession of the office.
- In the case of Niranjan Kumar Goenka v.The University of Bihar, Muzaffarpur, the court observed that the Writ of Quo Warranto cannot be issued against such a person who is not holding a public office.
- In the case of Jamalpur Arya Samaj Sabha v. Dr. D Rama, an application for the Writ of Quo Warranto was refused because it was not a public office.
- In the case of H.S. Verma v. T.N. Singh, the writ of Quo Warranto was refused and C.M. the right to appoint a non-member for six months was found valid under Article 164(4).
When Supreme court can refuse remedy
The right to move to the Supreme Court is a Fundamental Right under Article 32 whenever there is an infringement of the rights. The Supreme Court has a duty to protect and guard the fundamental rights guaranteed by the Constitution. However, there are some conditions under which the Supreme Court may refuse to grant the remedy:
- Res Judicata – Res Judicata is applicable on a writ petition filed under Article 32. However, Habeas Corpus is an exception to this principle but it can’t be filed on the same facts more than once.
- Inordinate Delay In Filing Petition – The Court may refuse to grant relief when there is an inordinate delaying filing the petition without reasonable explanations.
- Malicious Petition – If a petition is malicious and if it is so found out, it may be liable to be dismissed.
- Misrepresentation or Suppression of Material facts – The Petition can be dismissed at any stage, if the petitioner is found to have a misrepresentation of material facts.
- Existence of adequate alternative remedy – The existence of an alternate remedy is not an absolute Rule of Law and there can be valid exceptions. 32.
Article 32 and Article 226
Article 32 is a Fundamental Right, in comparison Article 226 is a constitutional right that gives the High Court’s discretionary powers. Article 226 clearly states that the High Court’s effectiveness is throughout the territories in alliance to which it exercises jurisdiction, to issue to any person or authority including in appropriate cases any Government within those territories directions, orders or writs. The scope of Article 226 is broader than Article 32 as legal rights other than fundamentals can also be enforced through it.
|Grounds of difference||Article 32||Article 226|
|Right||Article 32 is a fundamental right under Part III.||Not a fundamental right, it is a constitutional right.|
|Suspension||Can be suspended if an emergency has been declared by the President under Article 359.||Cannot be suspended even at the time of emergency under Article 359.|
|Scope||Limited scope and applicable only for remedy if fundamental rights are violated.||Article 226 has a broader scope and is applicable if either a fundamental right or a legal right has been violated.|
|Territorial Jurisdiction||Pan India Territorial Jurisdiction.||Empowers the High Court to issue a writ within its local jurisdiction and has a narrower territorial jurisdiction.|
|Discretion Power||Rights and remedies under it can’t be refused by the Supreme Court.||Article 226 gives the High Court’s Discretionary power, hence it is up to the wisdom of the high court to issue a writ or not.|
Amendment of Article 32 under Article 368
Article 32 cannot be amended as it is a part of the basic structure of the constitution. In Kesavananda Bharati v. State of Kerala, the Supreme Court established the doctrine of basic structure and stated that the ‘basic’ can’t be amended. In L. Chandra Kumar vs Union Of India and Others, the bench declared Article 32 was an integral part of basic structure. Hence, Article 368 does not apply to Article 32. If it is arbitrarily amended it will be subject to judicial review and will be rendered null and void.
Article 32A was inserted into the constitution by the 42nd Amendment in 1976. Article 32A barred reviewing of State laws unless constitutional validity of Central laws was also an issue. Subsequently, the 43rd amendment repealed Article 32A after the end of the emergency.
Public Interest Litigation under Article 32
Citizens can file a Public Interest Litigation in the interest of public welfare in the Supreme Court under Article 32. PIL under Article 32 can also be taken up suo moto by the court itself. PIL cases do not have to be cases where the rights have been violated personally. PILs give power to the public to approach the courts for remedies through judicial activism. The petition filed by the petitioner filed in the public interest must be backed by satisfactory facts and grounds, else it may be considered frivolous.
The Rule of Locus Standi in cases of PILs are moderately applied when the petitioner is supposedly acting in a bona fide manner. A PIL must be in the larger public interest and not for motives of making pecuniary benefit or politically motivated or based on mala fide intent.
Supreme Court’s recent observations on Article 32
The supreme court in Siddique Kappan case of 2021, made an oral observation asking the petitioner’s reasons for not approaching the High Court first. The same Bench directed another petitioner to approach the High Court first. In a petition filed for relief of bail by P. Hemalatha owing to the health conditions of her husband, the Supreme Court directed the Bombay High Court to hear the bail plea.
The Supreme Court in a contempt notice to the Assistant Secretary of the Maharashtra Legislative Assembly expressly mentioned that the right to approach the Supreme Court is a fundamental right and that “there is no doubt that if a citizen of India is deterred in any case from approaching this Court in exercise of his right under Article 32 of the Constitution of India would amount to serious and direct interference in the administration of justice in the country”.
The procedure of filing writs petitions
For the filing of writ petitions in the Supreme Court under Article 32 the following procedure needs to be followed:
- The Petitioner must approach the Supreme Court with requisite documents like identity proof, residential proof, photographs, etc.
- The draft of the petition must have the name and address of the aggrieved party along with the material facts.
- The Writ petition has to be sent to the Supreme Court.
- The Court will set the date of hearing of the petition, on this date the court on acceptance of the petition will issue a notice to the respondent. A further date is set for the hearing of both parties.
- After hearing both the parties, the court gives its judgment and grants relief.
The Supreme Court is made the protector and guarantor of fundamental rights. It is provided with power and controls to provide remedies if these rights are infringed upon by Article 32 of the constitution. Dr. Ambedkar rightly heralded it as the ‘Heart and Soul of the constitution. From the above-cited facts, it can be understood that Article 32 stands for the equitable principle of natural justice. Furthermore, the writs allow Public Interest Litigations to be recorded for the larger interest of the public. A People’s Constitution based on the principle of a welfare state must limit arbitrary use of power. The Writs are one of the first essentials of constitutional democracy.
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