HISTORY AND BACKGROUND
Does India have such power to defy Constitutionalism? Constitution is based on the 'rule of law' and its scope which is opposed to the 'rule of men' (any personal law where a particular person has the arbitrary power), but these two exist concurrently in India.
On the other hand, the Supreme Court always described the Indian Constitution as the most powerful Constitution in the world which has the most judicial powers. The court which decides the Constitutional matters binds its decision to people ensuring it's wide scope. Courts play a dynamic role in the country, however, the violation of rights, interests, identities and significance of citizens has become abundant in the view of Constitution.
India became 'sovereign, democratic and republic' when the constituent assembly enacted the Constitution of India. Too many criticisms pointed out (both cultural and political). Though The Indian Constitution has been amended 106 times till date. Most of these amendments in initial years were about the judiciary or fundamental rights to deal with the matters of The Supreme Court.
Despite, the main focus of this paper is to study the provisions related to the right to constitutional remedies. Indian Constitution gives right to every citizen to move to The Supreme Court or The High Court in order to enforce their fundamental rights.
These remedies when introduced began to expand too much that the Indian courts started getting overburdened and for that both government and the Courts were not prepared.
From time to time, the popularity of courts began to arise from remedies as well as speedy hearings and cheap litigation fees which was accessible to people.
WRITS OR RIGHTS?
Writs are the commands or orders from Supreme Court and the high court that works as constitutional remedies against the violation of citizens. These writs are provided in Indian Constitution to ensure justice among all the citizens. Writs are one of the most important pillars of Indian Constitution which gives judicial powers to courts.
In Indian Constitution, writs can be issued by Supreme Court and high court under article 32 and article 226 respectively. Citizens of India can seek for these constitutional remedies in case of violation of their fundamental rights.
It may take the shape of directives, summons, orders, warrants, etc. The individual whose rights get violated submits a writ petition to the appropriate authority in order to request the issuance of a writ. Dr. B.R. Ambedkar said that Article 32 is the constitution's "heart and soul."
TYPES OF WRITS
The Indian Constitution has provided five types of writs:
1. Habeas Corpus
2. Certiorari
3. Mandamus
4. Quo-Warranto
5. Prohibition
These are the legal documents which command a person or stop a person to work. It safeguards the interests of the citizens.
Article-32 is the protector of Fundamentals rights and provides the Constitutional remedies by the Supreme Court to people in case of Violation of fundamental rights
Article-226 protects the constitutional rights of a citizen and gives remedies against its violation. The High Court has the power under article-226.
HABEAS CORPUS
Habeas Corpus refers to "have a body of". This writ is used when a person is unlawfully detained or in imprisonment. Via this writ, a person who is detained must be brought before the court and the court will decide if the detention or imprisonment is unlawful or not. If there is not lawful justification of the detention then he must set free. It is one of the most important and effective remedies under Indian constitution.
E.g. - X, a person is unlawfully detained by a police. The court may release X on the basis of 'Habeas Corpus' if the police officer fails to present any valid reason for detention. Article 21 & Habeas Corpus Habeas corpus is a Latin term which protects an unlawfully detained person with due process of law. Habeas corpus originated from Magna Carta. Article 21 of Indian Constitution protects the right to life and personal liberty of a person. An unlawful detention of a person violates the right to personal liberty of a citizen. This writ can be enforced by approaching the Supreme Court and high court.
When Can It Be Issued?
1. When the fundamental rights must be enforced, wrt article-21 i.e., Personal liberty. If any authority detains a citizen without any lawful justification, the High Courtor Supreme Court can issue the writ of Habeas corpus to protect the person from unlawful detention.
2. Ultra vires- In case of Keshav v commissioner of police, the principle of ultra vires is implemented. When an authority detains a person ultra vires (to go beyond the limit) then the court can issue Habeas corpus.
Rules of Habeas Corpus
1. The person who is applying for the writ must be in detention or custody.
2. If the petition is in public interest, then the court can allow it.
3. Writ can be an application which is formal or informal.
4. Principle of Res Judicata must be used here that a person can't make petition to different judges of same court.
Examples when Habeas corpus can be issued
1. When a person is detained without any justification or violation of law
2. When a person is detained under any unconstitutional law
3. When a person is detained for the purpose of harming.
4. When a person who is detained is not produced before the magistrate within 24 hours.
Nature Of Habeas Corpus
The writ of habeas corpus is an extraordinary legal remedy that allows a person to challenge unlawful detention. It can be issued by a High Court under Article 226 or by the Supreme Court of India under Article 32 of the Constitution, provided that the detention violates the fundamental under Article 21.
Key Characteristics Of Habeas Corpus:
1. Restorative and Immediate Remedy: Habeas corpus is a remedial writ, meaning it aims to provide an immediate solution to unlawful detention. The key characteristic of this writ is that it orders the immediate release of a person who is unlawfully detained, whether the detention is by the police, a public authority, or any other body.
2. Protection against Arbitrary Detention: The writ primarily serves to prevent arbitrary arrests and detentions. It ensures that no individual is deprived of their liberty except by following due process of law. Any detention that violates the law or is carried out without legal authority can be challenged through habeas corpus.
3. Direct Inquiry into Detention: Habeas corpus is unique because it allows the court to directly inquire into the legality of the detention. If the detention isfound to be unlawful, the person is ordered to be released.
4. Personal Freedom: The writ of habeas corpus is a fundamental safeguard of personal freedom. It protects an individual's right to be free from arbitrary government action and ensures that the power of detention is not abused. For instance, if a person is detained but treated unlawfully during their detention, a writ of habeas corpus cannot address the manner of treatment (e.g., torture or mistreatment). Separate remedies such as claims under Article 21 for violation of the right to life and personal dignity are used for such issues.
Case Laws
1. Sunil Batra v. Delhi administration, 1979 It was the landmark judgment and it protected the fundamental right of a prisoners. The Supreme Court intervened to protect the rights of prisoners who were getting tortured. The court accepted the application made by convict through letter. Thus, Habeas corpus was issued.
2. AK Gopalan V the State of Madras In this case the constitutionality of preventive detention act was tested. if the detention of a person is unlawful then the law which is supporting the detention must be unlawful. A person can approach or file appeal in Supreme Court if he's not satisfied with the high court.
CERTIORARI
Certiorari is a Latin word refers to “to be certified or informed ". It is a writ in which the higher court calls up the records of the inferior courts to rectify or quash the orders. The higher court has the power to review and recall the decisions taken by the inferior courts, subordinate courts or tribunals.
This writ is issued against judicial or quasi judicial bodies. It is a corrective writ used to determine whether the inferior courts have applied the correct laws or not.
The writ of certiorari can be applied by the person who is aggrieved by the decisionof lower court or any other body. The person who applies for this writ must be directly or indirectly related to the case. The writ of certiorari cures the error of decisions made by the court.
Writ of certiorari is used in many countries like India, US, Canada, Ireland & England.
Before 1991 the writ of certiorari used to be issued only against judicial and quasi judicial bodies. After 1991, writ of certiorari can be issued against administration but can't be used against a private person or bodies.
Grounds Of Certiorari
1. Errors of law- the writ of certiorari can be applied when there is any incorrect application or interpretation of law. The parties may seek the writ of certiorari to correct the error made by the court.
2. Jurisdictional error- when there is a doubt in the jurisdiction of the court or they have failed to exercise their power in the particular jurisdiction then the party who is aggrieved by the decision may apply for the writ of certiorari.
3. Principle of natural justice- if there is a violation of natural justice during the proceedings. Then the writ of certiorari can be applied.
4. Judicial review- if the court fails to control the decision then writ of certiorari can be made to challenge the orders.
Conditions of writs-
1. There must be an existence of the body which decided the case.
2. There must be some ground of error.
3. Must be applied by the higher court against the decision of lower court.
Nature of Certiorari
The writ of certiorari is a judicial review mechanism. Its core function is to review and correct decisions of lower courts or tribunals when they act beyond their jurisdiction or violate principles of law or natural justice. It does not re-examine factual issues but focuses on the legality of the decision-making process itself.
1. Scope: Certiorari can be issued against an inferior court, tribunal, or public authority that has passed an order which exceeds its jurisdiction, acts illegally, or does so in violation of the principles of justice and fairness.
2. Judicial Supervision: The writ is an instrument of judicial control over inferior bodies and ensures that their decisions conform to the law. It serves as a check on any authority acting in excess of its jurisdiction or against the established legal norms.
3. Error of Law: Certiorari is typically issued when a lower body has made a legal error, such as misinterpreting the law, acting beyond its power, or violating the rights of an individual. It does not address factual errors but focuses on whether the correct legal principles were applied.
Purpose of Certiorari
The primary purpose of the writ of certiorari is to ensure judicial accountability and to maintain the rule of law by preventing inferior courts or authorities from acting in an unlawful or unjust manner. The writ serves several important purposes:
1. Rectification of Legal Errors: Certiorari is issued to correct legal mistakes made by inferior courts or tribunals, especially when the decision is based on misinterpretation of law, lack of jurisdiction, or procedural irregularities.
2. Judicial Oversight: It allows higher courts, particularly the Supreme Court and High Courts, to supervise the actions of lower courts or administrative bodies, ensuring they act within their legal authority and follow due process.
3. Ensuring Fairness: The writ helps uphold the principles of natural justice, preventing actions that might otherwise be biased or unjust. If an inferior body fails to adhere to these principles, certiorari ensures that its decision is quashed..
Cases
1. Radhey Shyam & Anr. V. Chhabi Nath & Ors, 2015 - In this in this case the court observed the difference between article 226 and 227 of Indian constitution about the jurisdiction of High Court. The court observed that under article 226 the high court is provided with the writ jurisdiction and under article 227 the supervisory jurisdiction is given to the High Court. there is a difference between both of their scope and significance given to the court. Under article 226 the court can quash the order but under article 227 the court can quash as well as give new decisions or opinions on the case.
2. Nagendra Nath Bora V the Commissioner Of Hills Division And Appeal, Assam And Ors. - In this case the court held that the lower Tribunal has exceeded its jurisdiction and did not take decision according to the law. Hence the writ of certiorari can be issued.
PROHIBITION
The writ of prohibition is used by higher courts to prevent lower courts or tribunals from exceeding their jurisdiction or acting beyond their legal authority. It serves as a means to ensure that lower judicial bodies do not overstep their powers or make decisions outside their prescribed legal boundaries. Often, the writ of prohibition is issued by a superior court, such as a court of appeal or the highest court in the jurisdiction, to prevent a case from proceeding or to stop certain actions that are deemed unlawful. It is a preventive writ. The writ prevents an inferior body from continuing an action that it has no legal authority to undertake. The writ does not usually address the merits of the case being heard; rather, it focuses solely on whether the lower body is acting within its proper jurisdiction.
Grounds of prohibition
1. Jurisdictional error
2. Error in law
3. Ultra vires act
4. Violation of natural justice principles
5. Violation of rights
Any High court or the Supreme Court can issue this writ under article 226 &32. It is issued when the lower courts or inferior courts exercise their power beyond their jurisdiction. It is also called as "stay orders". Prohibiting and preventing someone from exercising their powers.
Functions Of Prohibition
1. Maintaining Judicial Boundaries: The writ ensures that courts and tribunals do not exceed their legal mandate or authority. It acts as a safeguard against the unlawful exercise of power.
2. Promoting the Rule of Law: By preventing unauthorized actions, the writ of prohibition supports the rule of law and ensures that legal decisions are made by properly constituted bodies.
3. Preserving Legal Integrity: If a lower court acts beyond its jurisdiction, its decisions may be legally void, leading to unnecessary delays, confusion, and injustice. A writ of prohibition can prevent such complications before theyarise.
4. Ensuring Proper Administration of Justice: The writ helps ensure that cases are heard by the appropriate bodies with the necessary expertise and legal authority to resolve disputes.
Case Laws
1. Laxmi Rattan Engineering Works v. Union of India (1967) 1 SCR 63
The Supreme Court of India granted the writ of prohibition, stating that public authorities and tribunals cannot exercise powers beyond what has been lawfully conferred upon them. This case emphasized the preventive nature of the writ of prohibition, which is used to halt actions that are outside the jurisdiction of the authority involved.
2. State of Uttar Pradesh v. District Magistrate, Allahabad (1965) AIR 199 (SC) The Supreme Court held that the writ of prohibition could be issued to prevent a judicial or quasi-judicial body from acting beyond its jurisdiction. It reaffirmed the principle that a body or tribunal cannot exercise powers it is not lawfully vested with, and the writ of prohibition is a remedy to prevent unlawful exercise of such powers.
MANDAMUS
The writ of mandamus is one of the five writs (mandamus, habeas corpus, prohibition, certiorari, and quo warranto) provided under Article 32 and Article 226 of the Constitution of India. It is a powerful tool used by courts to compel a public authority, body, or officer to perform a duty they are legally obligated to do. Mandamus, which means "we command" in Latin, is a form of judicial intervention to ensure that public officials and bodies act within the scope of their legal duties and responsibilities.
This article provides an in-depth examination of the writ of mandamus, its legal characteristics, the scope of its application, and key case laws that have shaped its understanding in Indian jurisprudence.
Nature And Purpose Of Writ Of Mandamus
The writ of mandamus is an order issued by a court commanding a public authority or body to perform a statutory duty that it has failed or refused to do. The writ does not compel the performance of an act that is discretionary or beyond the legal jurisdiction of the body or authority. Its core purpose is to ensure the performance of a legal duty and ensure that a public official or body does not act arbitrarily or neglect its responsibilities
In essence, mandamus is a remedy to enforce public rights and can be issued in situations where:
1. A public body has failed to perform a duty that is mandatory under law.
2. A body or officer has refused to perform a duty despite being required by law to do so.
3. A body or officer has failed to act within a reasonable time.
The writ of mandamus can only be issued to public bodies or officials performing statutory duties or duties imposed by law. It does not lie against a private individual or a body exercising discretionary powers.
Characteristics Of Mandamus
The writ of mandamus has several important characteristics:
1. Compelling Action: Mandamus does not compel a specific decision; it only commands the performance of a duty. It requires the body to act and not necessarily in any particular way.
2. Issuance to Public Authorities: The writ can only be issued to public authorities, bodies, or officers who have legal or statutory duties to perform. It cannot be issued against private individuals or non-statutory entities.
3. Performance of a Duty: The duty that is sought to be enforced by mandamus mustbe clear, certain, and unequivocal. The duty must be one that the public body is legally required to perform and must not involve an exercise of discretion.
4. Not Against Discretionary Acts: The writ cannot be issued to compel a public authority to exercise its discretion in a particular way. It is aimed at compelling a mandatory duty, not at influencing the outcome of a decision.
5. Failure to Perform Duty: Mandamus is appropriate when there has been a failure or refusal to perform a legal duty, rather than merely a delay or improper performance.
6. No Alternative Remedy: A writ of mandamus is typically available when no other legal remedy is adequate to address the issue, and there is no other way to enforce the performance of a statutory duty.
Grounds For Mandamus
To secure a writ of mandamus, the following conditions must be satisfied:
1. Existence of a Legal Duty: There must be a clear and specific legal duty or obligation imposed by law on the public authority or body that has not been performed.
2. Failure to Perform Duty: The public authority or body must have failed to perform the duty, or refused to do so without any reasonable justification.
3. No Adequate Alternative Remedy: The party seeking mandamus must not have any other adequate remedy to compel the public authority to perform its duty. If other remedies are available, such as an appeal or review, mandamus will not be issued.
4. No Discretionary Power: The authority must be under a legal obligation to act, and the duty must not involve any discretion. Mandamus cannot be issued where the action required is discretionary.
5. Specific Duty: The duty must be clear and certain. It cannot be vague or dependent on the subjective judgment of the authority.
Case Laws
1. East India Commercial Co. Ltd. v. The Coal India Ltd. - The Supreme Court held that mandamus can be issued to compel the performance of a statutory duty, but not to compel a body to exercise its discretion in a particular manner. It clarified that mandamus is not available to enforce discretionary acts, but only mandatory ones.
2. State of Uttar Pradesh v. Rajesh Kumar- the Supreme Court held that when a public authority fails to act within a reasonable time, mandamus can be issued to ensure that the authority performs its duty promptly.
The writ of mandamus is a powerful judicial tool used to enforce legal duties and public rights. It ensures that public authorities perform their statutory duties and responsibilities. However, it cannot be used to direct the performance of discretionary acts or decisions.
QUO WARRANTO
The writ of quo warranto, meaning "by what authority" in Latin, is a judicial remedy that challenges the legality of a person's claim to a public office. It requires the individual holding a public office to show by what authority they hold that office. This writ serves as a check on the illegal or unauthorized assumption of a public office or position, ensuring that only those legally entitled to hold the office are allowed to continue in it.
This article provides a comprehensive examination of the writ of quo warranto, its nature, scope, and historical background, application in India, key judicial interpretations, and case law. It also analyzes how this writ plays a significant role in upholding public accountability, transparency, and constitutional governance.
Nature And Scope Of The Writ Of Quo Warranto
The writ of quo warranto is primarily used to challenge the usurpation or illegal occupation of a public office by an individual who does not have a legal right to it. It can be issued by the High Court under Article 226 and by the Supreme Court under Article 32, to ensure that public officials or individuals holding public office do so only if they are lawfully entitled to that office.
Key Features Of The Writ Of Quo Warranto
1. Challenging Unauthorized Occupation of Public Office: Quo warranto is used when an individual occupies a public office without a legal right to do so. It is a remedy against persons who are illegally or unconstitutionally holding an office.
2. Public Office: The writ can only be issued to challenge a person’s claim to a public office, not a private position. A "public office" is one where the holder performs duties that are in the public interest, for example, the office of a government servant, judge, elected representative, or official appointed by the government.
3. Power of the Court: The writ is directed at the person holding the office to show by what authority they hold the position. The court, on examining the facts, may order the removal of the person from the office if it is found that they are unlawfully holding it.
4. Disqualification and Illegality: The writ is based on the premise that an individual holding a public office without fulfilling the constitutional or statutory qualifications or who occupies an office in violation of legal provisions may be asked to vacate the office. The court examines whether the person is qualified and whether their appointment was legal.
5. No Remedy for Wrongful Acts Within the Office: The writ of quo warranto is not designed to address the wrongful acts performed by a person once they are in office. Instead, it addresses the right to hold the office itself. The appropriate remedy for misconduct within an office is usually through impeachment, disciplinary proceedings, or criminal action.
6. Narrow Scope: The scope of quo warranto is limited because it does not deal with the merits of the officeholder’s actions or decisions; it only concerns their right to occupy the office.
Grounds For Quo Warranto
A writ of quo warranto is issued when:
1. An individual is holding a public office without legal authority.
2. The person holding the office is not qualified according to the laws governing the office.
3. The individual is appointed or elected to an office in violation of statutory provisions or constitutional requirements.
4. Violation of natural justice - lack of transparency, due process, or fairness in the selection process).
Case Laws
1. K. K. Verma v. Union of India The Supreme Court held that a writ of quo warranto could be issued to challenge the appointment of a person to a public office if they did not fulfill the legal requirements. The case clarified that the writ is available to protect the legality of public offices and ensure that only qualified individuals hold them.
2. Dr. Rai Shivendra Bahadur v. The Chancellor, Bihar University TheSupreme Court issued the writ of quo warranto and ordered the officer to vacate the position. The Court emphasized that appointments to public offices, including those in educational institutions, must comply with the legal or statutory requirements.
3. State of Uttar Pradesh v. Rajendra Singh The Supreme Court upheld the issuance of a writ of quo warranto and emphasized that only those who fulfill the necessary qualifications can hold a public office.
CONCLUSION
The writs enshrined in the Indian Constitution under Articles 32 and 226 play a crucial role in protecting fundamental rights and ensuring justice. These writs—habeas corpus, mandamus, prohibition, quo warranto, and certiorari—are essential tools of judicial review that empower the Supreme Court and High Courts to ensure that individuals' rights are safeguarded from any arbitrary or illegal actions by the state or other authorities. Together, these writs are integral to maintaining the rule of law in India. They act as a robust system of checks and balances within the framework of the Indian Constitution. By empowering the judiciary to intervene in cases of unlawful action or violation of rights, these writs ensure that individuals' fundamental rights are protected, preserved, and upheld.
The availability of these writs highlights the commitment of the Indian legal system to uphold justice, transparency, and the principles of natural justice, ensuring that every citizen is entitled to fair treatment under the law. These writs continue to play a pivotal role in reinforcing the democratic values enshrined in the Indian Constitution.
