All about the writs under Article 32

 
Article 32- Right to Constitutional Remedies

Dr. B. R. Ambedkar referred to Article 32 as the heart and soul of the Indian Constitution. Article 32 deals with constitutional remedies available under the Indian constitution. Article 32 is a fundamental right that allows a person to directly move to the Supreme Court, without going through the lengthier process of approaching lower courts first. It also acts as the protector of fundamental rights provided under the Indian Constitution. Article 32 makes the Supreme Court the guarantor of Fundamental Rights.

Part III of the Indian Constitution [1] deals with Fundamental Rights. Article 32 reads as, “Remedies for enforcement of rights conferred by this part

1)   The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed.

2)   The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement or any of the rights conferred by this part.

3)   Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

4)   The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.”

Writs under Article 32

The word ‘writ’ can be defined as an order or mandatory process in writing issued in the name of the sovereign or of a court or judicial officer commanding the person to whom it is directed to perform or refrain from performing an act specified therein.1

Writs provided under Article 32 of the Indian Constitution are:

  1. Habeas Corpus
  2. Mandamus
  3. Quo Warranto
  4. Prohibition
  5. Certiorari.

The exact meaning of the writs mentioned above is not provided under the Indian Constitution. These terms have been directly taken from the English Laws and the Indian courts have interpreted them through their judgements from time to time.

Habeas Corpus

The literal meaning of Habeas Corpus is to ‘produce the body’. It is a court order with a direction to a public official to present an imprisoned person before the court and provide valid grounds for his detention. The main purpose of the writ is to set at large a person who has been illegally detained by any person or authority.

A writ petition is usually filed by the person who is detained, but an application of Habeas Corpus can be moved by a person related or by a person who has an interest in the detainee. Such a person will have to provide with reasons because of which the detainee could not make the affidavit himself.1

The writ of Habeas Corpus can be issued against any authority, person or private individual, who has illegally detained a person. In Sitaram Yechury v. Union of India,2 the petitioner, general secretary of the Communist Party of India, filed a writ of habeas corpus in Supreme Court, challenging the constitutional validity of the detention imposed on Yousuf Tarigiami, when a virtual lockdown was imposed in Jammu and Kashmir. The Supreme Court allowed the petitioner to visit the detenu, however, the petitioner was not allowed to carry out any other political activities during that tenure.

In order to issue the writ of habeas corpus the illegality of detention must be proven. In the case of Batual Chandrav. State of West Bengal,3the petitioner was detained under the West Bengal (Prevention of violent activities) Act, 1970. The petitioner’s writ of habeas corpus was refused as it was established that the detenu and his associated armed with lethal weapons, attacked the house of a person and created a panic in the locality.

Once a person is released or is no longer detained, the writ of habeas corpus becomes infructuous.4

Mandamus

The literal meaning of Mandamus is ‘we command’. It is an order issued by a court to any government, court, public authority or person to perform some public duty. The purpose of this writ is to protect legal rights, to enforce constitutional limitations and to correct errors of law.

A person whose legal right has been directly harmed by the non-performance of public duty can apply for the writ of mandamus.

Mandamus will lie against a person holding public office or public body or corporation or an inferior court or tribunal. Here, public office refers to any position established by law to which certain duties or services are attached which incumbent officer is duty-bound to perform. The office may be appointed or elective. Writ of Mandamus does not lie against a private individual.

Further, the duty must be of public nature. As held in Director of Settlements, A.P. v. M.R. Apparao5, the duty must be one imposed by the Constitution, a statute, common law or by rules or orders having force of law.

Quo Warranto

Quo warranto can be translated to ‘by what warrant ‘or ‘by what authority’. The writ of Quo warranto requires a person to show by what warrant an office or franchise is held, claimed, or exercised. It protects a citizen from being deprived of public office, franchise or liberty unlawfully by usurpers and controls the executive action in matters of appointments of public officers.

Following are the conditions in which the writ of quo warranto can be issued:

  1. It must be established that the office in question is a public office.
  2. The office must be of substantive character i.e., an office independent in the title.
  3. The holder of the office (authority) should not be legally qualified to hold that office.
Prohibition

Meaning of Prohibition is ‘to prohibit’ or ‘to forbid’. Writ of prohibition is issued by a superior court to an inferior court or tribunal or any other public body, commanding them to restrain from doing something, which is in excess of their jurisdiction.

The writ of prohibition and certiorari can be issued in administrative functions. Prohibition can be issued only against authorities exercising judicial or quasi-judicial functions.

Prohibition is normally issued only when the inferior court or tribunal-

a)   Acts without or above jurisdiction;

b)   Acts in violation of rules of natural justice;

c)    Acts under the law which is unconstitutional or ultra vires;

d)   Acts in contravention of fundamental rights;

Certiorari

The term Certiorari can be translated as ‘to be informed or certified’. The writ of certiorari is passed by a High Court or the Supreme Court to an inferior court or tribunal or a body making use of judicial or quasi- judicial functions, to remove the proceedings from such authority to test its legality. If the decision is unfavourable to the law, it can be quashed.

Certiorari does not lie merely to quash an erroneous decision unless the error is one of law and apparent on the face of record.6 

Writ of certiorari can be issued on the following grounds:

a)   The error of law must be self-evident;

b)   When there is a failure to exercise jurisdiction by the inferior court or authority;

c)    When there is an illegal exercise of jurisdiction by the inferior court or authority;

d)   When there is a violation of natural justice[2] .

Conclusion

Indian Constitution empowers the courts to issues writs for protection of fundamental rights conferred in Part III. Powers are vested with the Judiciary in case of infringement of rights which makes the Supreme court protector and guarantor of Fundamental Right.

References

  1. Vidya Verma v. Shiv Narain, A.I.R. 1956 S.C. 108.
  2. Writ Petition (Criminal) No. 229 of 2019.
  3. A.I.R. 1974 S.C. 2285.
  4. Mohit Chandra v. Distt. Magistrate, Calcutta, A.I.R. 1974 S.C. 2287.
  5. A.I.R. 2002 S.C. 1598.
  6. R. v. Agricultural Land Tribunal, (1960) 2 All E.R. 518, 520.

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This article is authored by Nishtha Singh, student at Amity University, Lucknow 

Disclaimer

The views and opinions expressed in this article are those of the author and do not reflect the views and opinions of Legally Flawless or its members.

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