Writs under Article 32 and 226

writs

A right without a remedy is but a worthless declaration. Writs are the Constitutional remedy. Writs under the constitution of India given under Article 32 and 226. Dr B. R. Ambedkar called Article 32 and 226 of the Indian Constitution i.e. Right to Constitutional remedies as ‘the central core of the Constitution’.

The Writs under the constitution of India were made under the constitution for the remedy provisions because there will be no authority between the rights if there will be no remedy provided which can be used at the time of the violation of the rights given under the constitution. With these lines, the maker of the constitution of India put the writs as a remedy under article 32 and 226 of the constitution of India.

Writs under the constitution of India

Dr B R Ambedkar regarded Article 32 as ‘the Right to Constitutional remedies as ‘the heart and soul of the Constitution’’ and “most important article of the constitution without which the Constitution would be a nullity”.

Article 32

Article 32(1) – “The right to move the Supreme Court by proper procedures for the authorization of the rights gave by this Part is ensured.”

Article 32(2)– “The Supreme Court will have the capacity to give headings or requests or writs, remembering writs for the idea of habeas corpus, mandamus, disallowance, quo warranto, and certiorari, whichever might be fitting, for the implementation of any of the rights gave by this Part.”

Hence, the SC shall have the power to issues directions, or orders, or writs like Habeas corpusMandamus, Prohibition, Quo Warranto, and Certiorari.

Article 226

It enables the High Court to issue writs for the enforcement of Fundamental Rights and also other ordinary legal rights.

The power of HC is wider than power conferred by Art 32.

writs

Writs under the constitution of India

Writs are a quick remedy against injustice. It was originated in Britain, where King’s or Queen’s gave prerogative writs to judicial tribunals or other bodies to do something.

Five kinds of writs:-

  • Habeas corpus
  • Certiorari
  • Mandamus
  • Quo Warranto
  • Prohibition

Now we will read all the kinds of writs which we can use accordingly-

Habeas Corpus

Habeas Corpus– It means that “you may have the corpus, or bring the body”. These Writs are issued for securing the release of a person from illegal detention. It is the most important Writ when it comes to maintaining the liberty of movement. The main objective of Habeas Corpus is to set free at large a person who has been illegally detained by any person, or authority. It is a writ which gives a quick and immediate remedy. The person who has been taken behinds the bars by Illegal detention can use this writ.

Who can apply?

The person who is-

  • Illegal detention can apply for this remedy.
  • Sometimes the person who is illegally detained cannot apply for this remedy. So in such a case, application for the writ of Habeas Corpus can be made by any person on behalf of the prisoner.

Conditions to grant of Habeas Corpus

The following conditions are necessary to issue the writ of Habeas Corpus:

  • The Detention must be illegal or unwarranted by law
  • The detention should be illegal at the time of filing application, or at the time of the hearing.

Illegal Detention- Detention is not legal at the time of filing application.

  • Where detention is under some provision of law and if that provision is unconstitutional, it is also illegal detention.

When this writ is refused?

If the above conditions are not satisfied the writ can be refused by the court of justice.

Cases on Habeas corpus

Batul Chandra v. State of West Bengal

In this case, it was held that where the detention by authorities conforms to the procedure established by law and the provision of law is not unconstitutional the writ of Habeas corpus will not be issued.

A.K. Gopalan v. the State of Madras

It was held that an advocate in his capacity as an advocate cannot make an application on behalf of the detainee unless he holds a power of attorney from the detainee.

Mandamus

’Mandamus’ is an order issued by the SC or HC to any Govt, Court, Public Authority or Corporation or a person invested with public duty.

  • It is a command to perform some public duty in which the petitioner has performed his part and in which the petitioner has sufficient legal interest.
  • It is the order of the Superior Court to do or forebear from doing something like Public Duty.
  • Example- If A has a legal right that cast certain legal obligations on B; A can seek a writ of Mandamus directing B to perform its legal duties.

Who may apply for Mandamus?

  • The person whose legal right is violated by the non-performance of public duty can apply for the Writ of Mandamus.

Conditions

The following conditions must satisfy:-

  • The petitioner must have a legal right which can be judicially enforceable.
  • There must be some duty cast on the respondent.
  • The duty must be public and mandatory nature cast by law
  • The petitioner must have made the demand for the performance of that duty.
  • The public authority or officer concerned must refuse to do that duty.

Against whom Mandamus lies?

  • The writ of Mandamus lies against public authority to restrain it from acting under the law which has been declared unconstitutional.
  • This writ will also be issued against a person holding a public office, permanent, or temporary public body, or corporation, or an inferior court, or tribunal.
  • If an alternative civil remedy is available, the writ of mandamus may be generally refused.

Cases of Mandamus

Barada Kanta Adhikary v. The State of West Bengal (1963)

Held- writ of mandamus does not lie against a private individual or private organization because they are not entrusted with a public duty.

Manjula Manjari Devi v. M.C. Pradhan, Director of Public Instructions (1952)

  • The publisher of an Oriya book applied for a writ of mandamus to compel the Director of Public Instructions to include her book in the list of books approved for school.
  • The court refused, since the choice of books was entirely a matter within the discretion of the Director of Public Instructions.
  • There was no legal duty to compel the Director of Public Instructions to include the Petitioner’s book on the list.

Quo- Warranto

Quo Warranto is a judicial order to a person who has illegally occupied or usurped an office, or post, to show by what authority he is holding that office.

Objective

Writ of quo-warranto is to prevent a person to hold the office, which he is not legally entitled to hold.

Who can apply?

Any person can move a petition on the ground that the holder of an office is a usurper without any valid claim.

  • The petitioner can challenge the validity of the claim of the holder of a Public Office without seeking to enforce his right.

Conditions

  • The office must be the public office
  • It is held by a person without legal authority.

Cases for Quo- Warranto 

Arya Pratinidhi Sabha v. The State of Bihar (1958)

  • The Bihar Arya Sabha is a private Association. Hence, the court refused to grant the writ of quo warranto, where the holder of the Public Office should not be legally qualified to hold the office.

G.D. Karkare v. T.L. Shevde (1952)

  • The Court held, that the writ of quo warranto can be issued against the Advocate general where the appointment of the Adv. Gen of M.P. was challenged by private individuals who had no legal interest in that office.
  • The court can refuse the writ of quo warranto if it is vexatious, or where the petitioner is guilty of laches.

Prohibition

  • The writ like Prohibition is issued by a superior court to an inferior court, the tribunal also for quasi-judicial bodies.
  • It prevents the inferior courts from exercising the jurisdiction which they do not possess, or which is not legally vested in them.

Who can apply?

The person whose right is violated can apply for the Writ of Prohibition.

Against whom?

Writ lies against judicial and quasi-judicial authorities. It will not lie against purely an administrative or executive. 

Conditions:

  • The writ can be issued only against judicial or quasi-judicial bodies.
  • It can be issued when the judicial or quasi-judicial bodies exceed the jurisdiction.
  • The proceedings must be pending before the inferior court at the time when this writ was issued.

When can it be refused?

  • The court can refuse to grant the writ of Prohibition where before issuing the writ the authority becomes “functus officio”.

Cases of prohibition 

Madan Gopal v. UOI (1951)

  • The SC held that where the defect in the jurisdiction is not apparent, also, where the appellant is guilty of supervision of material fact, the court can refuse to grant the writ.
  • However, it can be granted where it is shown that the inferior tribunal is acting more than its jurisdiction.

Certiorari

  • Issued by the superior court to an inferior court or quasi-judicial body, to act within the limits of its jurisdiction.
  • Prohibition is used to prevent them from hearing the case beyond their jurisdiction.
  • While certiorari is used the quash the order which has been decided.
  • The writ can be issued even before the trial to prevent and excess, abuse of jurisdiction and to remove the case for trial to a higher court.
  • It can be made without jurisdiction and in violation of rules of Natural Justice.

Who can apply?

Pet must be a person whose fundamental right, or another legally enforceable right has been violated.

Conditions

  • Error apparent on record- Where the error is one of law and apparent on the face of record than to quash such an erroneous decision the Court can issue the writ of Certiorari.
  • Excess of jurisdiction- Can be issued if the inferior court or tribunal acts without jurisdiction.
  • Illegal exercise of jurisdiction- The Court cannot give itself jurisdiction by the wrong decision of the fact where the Court exercises the wrong jurisdiction then the writ will be issued.

Cases

Basappa v. Nagappa (1954)

  • SC simply demolished the order of the inferior tribunal which is considered to be without jurisdiction, or culpably erroneous but, it does not substitute its views for those of the inferior tribunal.

Bharat Barrel and Drum Manufacturing Co. v. L.K. Bose (1967)

  • Held that court has to consider each case in the light of the facts and circumstances of that case and the provisions of that relevant statute, the nature of the issue involved during the inquiry, the nature of the order passed and the interest affected, thereby it can be said that, principles of natural justice have been followed or not.

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Writs under the constitution of India

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