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DAMODARAMSANJIVAYYA NATIONAL LAW UNIVERSITY

VISAKHAPATNAM

Constitution I

DETAILED STUDY OF
CONSTITUTIONAL
REMEDIES UNDER ARTICLE
32

Submitted By-

VIVEK VARDHAN PODIPIREDDI

5th Semester, 3rd Year,

Roll No. 2013081

ACKNOWLEDGEMENT

I want to give my sincere thanks to our respected contract faculty, Mr. A. NageshwarRao, who
has guided me all the way in completing this project. Then I would like to give thanks to
librarians who have helped me all the way in searching through the source materials which help
me lot in completing the project. The list couldnt be completed without thanking all our friends
who have encouraged me all the way in completing the project.
Contents
ACKNOWLEDGEMENT................................................................................................ 2
CHAPTER I.................................................................................................................. 4
INTRODUCTION:...................................................................................................... 4
ARTICLE 32 MEANS NOT ONLY WRITS:.....................................................................5
CHAPTER II.................................................................................................................. 6
LOCUS STANDI......................................................................................................... 6
Locus Standi and Article 32..................................................................................... 6
LOCUS STANDI AND WRITS...................................................................................... 7
LOCUS STANDI AND PUBLIC INTEREST LITIGATION..................................................7
JUDICIAL ACTIVISM AND JUDICIAL RESTRAINT......................................................9
CHAPTER III............................................................................................................... 10
PUBLIC INTEREST LITIGATION................................................................................10
Legal History.......................................................................................................... 10
Meaning and Definition......................................................................................... 12
Concept of PIL....................................................................................................... 15
.CHAPTER IV.............................................................................................................. 19
CONSTITUTIONAL PHILOSOPHY OF WRITS: DETAILED ANALYSIS............................19
A) Writ of Habeas Corpus:-................................................................................20
EXCEPTION OF RESJUDICATA.............................................................................. 22
B) Mandamus..................................................................................................... 22
C) Prohibition......................................................................................................... 25
D) Certiorari:-......................................................................................................... 26
E) Writ of Quo Warranto......................................................................................... 27
CHAPTER V............................................................................................................... 29
CONCLUSION......................................................................................................... 29
BIBLIOGRAPHY....................................................................................................... 30
Books:.................................................................................................................... 30
Internet Sources:................................................................................................... 30
CHAPTER I
INTRODUCTION:
Article 32 of the Indian constitution provides for constitutional remedies against the violation or
transgression of fundamental rights. The fundamental rights are of highest importance to the
individuals. They are basic conditions for the fullest development of personality.

Article 32 which was referred to as the very soul of the constitution by Dr. Ambedkar, provides
for constitutional remedies. Clause 2 of Article 32 provides that, The Supreme Court shall have
the power to issue directions or order or writs including the writs in the nature of habeas corpus,
mandamus, prohibition, Quo warranto and criterion, whichever may be appropriate for the
enforcement of any of the rights conferred by fundamental rights.
The citizens are given the right to movethe Supreme Court in case of transgression of
fundamental rights. The Supreme Court thus is constituted into a protector and guarantor
fundamental rights. The right to constitutional remedy is itself a fundamental right.

Mere declaration of the fundamental right is meaningless until and unless there is an effective
machinery for enforcement of the fundamental rights. So, a right without a remedy is a worthless
declaration. The framers of our constitution adopted the special provisions in the article 32 which
provide remedies to the violated fundamental rights of a citizen.

Article 32 (1) says: The right to move the Supreme Court by appropriate proceedings for
the enforcement of the rights conferred by this Part is guaranteed.
Article 32 (2) says: The Supreme Court shall have 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 of any of the
rights conferred by this Part.
Article 32(3) Says: 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). And
Article 32 (4) says: The right guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution.

All the 4 sections of article 32 are very important. Please note the following points: Article
32(1): Guarantee to remedy Article 32(2): Power of Supreme Court (and high courts) to issue
writs Article 32(3): Power of parliament to confer the power to issue writs to other courts (so
far this power is not exercised. Article 32(4): Suspension of Fundamental Rights.

ARTICLE 32 MEANS NOT ONLY WRITS:


Article 32 is not restricted to writs only, article covers all the constitutional remedies which also
include writs, under article 32 it can be an order, an injunction, status quo or any other remedy
which suits the best in that particular circumstances. The purpose of article 32 is giving remedy it
can be given in any form not only through writs, it doesnt matter what ever way the justice is
done. 99 percent of times article 32 is invoked against state, in very few cases they are issued
against private individual, for example writ of habeas corpus can be issued against private
individual for illegal or wrongful detention
CHAPTER II
LOCUS STANDI
The right to move to the court is a right whose fundamental right is violated. The supreme court
can only exercise for the enforcement of fundamental right under Art.32 of the Indian
constitution. In law, standing or locus standi is the term for the ability of a party to demonstrate
to the court in sufficient connection to and harm from the law or action challenged to support that
partys participation in the case. Else, the court will rule that the plaintiff lacks standing to
bring the suit and will dismiss the case without considering the merits of the claim.

Locus standi means the right to bring an action, to be heard in court, or to address the Court on a
matter before it. Locus standi is the ability of a party to demonstrate to the court sufficient
connection to and harm from the law or action challenged to support that partys participation in
the case. For example, a person cannot bring a suit challenging the constitutionality of a law
unless the plaintiff can prove that the plaintiff is harmed by the law. Otherwise, the court will
rule that the plaintiff lacks standing to bring the suit, and will dismiss the case without
considering the merits of the claim of unconstitutionality. In order to sue to have a court declare a
law unconstitutional, there must be a valid reason for whoever is suing to be there. The party
suing must have something to lose in order to sue unless they have automatic standing by action
of law.

Locus Standi and Article 32


Article 32, which contains the fundamental right to judicial remedies, is often considered one of
the most important fundamental rights. The main object of Article 32 is the enforcement of the
fundamental rights guaranteed by the Indian Constitution. A person whose fundamental rights
have been violated has the remedy of approaching the Supreme Court by way of a writ petition
filed under Article 32. When faced with such a petition, the Supreme Court will first deal with
the issue of the petitioners locus standi; the petitioner will have to establish that they have the
necessary locus to approach the Court. In this regard, the traditional, well established rule
of locus standi is that a person has no right to complain under Article 32 where no fundamental
right has been infringed. Article 32 seeks to protect the fundamental rights of a person and
therefore, a precondition for its applicability is that there has been a violation of fundamental
rights.

The Court cannot give relief under Article 32 unless it is satisfied that the right, the infringement
of which is complained of by the Petitioner, is a fundamental right.

LOCUS STANDI AND WRITS


When a person applied for writ, the first question which the Court has to consider is whether he
has any locus standi or interest in the case. If he has none then the writ shall not be granted. In
other words, the general rule governing issuance of writs is that it is only the aggrieved person
who can apply for a writ under Article 32 or 226. When, there is no infringement of the rights of
the petitioner and consequently there is no case of enforcement of any right, the Supreme Court
or the High Courts cannot give a bare declaration of right under the cover of proceedings under
Articles 32 and 226.There are, however, some well recognized exceptions to this general
principle. In a Habeas Corpus petition, not only the person in detention or imprisonment but any
person interested in him, e.g. next friend or next of kind not being an utter stranger can apply.
Similarly the writ of Quo Warranto also admits of relaxation or modification in appropriate
cases.

The requirement of locus standi came into being to restrict the remedy of high writs only to
aggrieved persons. If the right to apply for writs was not so restricted, the judicial machinery
would have become available to professional litigants so as to enable them to interfere in matter
that do not even remotely concern them. At the same time the law wishes people to be vigilant.
They should not tolerate any encroachment upon public rights. They should be encouraged to
come forward and present to the judiciary complaints about violation of welfare schemes.

LOCUS STANDI AND PUBLIC INTEREST LITIGATION


Public interest litigation means litigation for the protection of the public interest. It is litigation
introduced in a court of law, not by the aggrieved party but by the court itself or by any other
private party. It is not necessary, for the exercise of the courts jurisdiction, that the person who is
the victim of the violation of his or her right should personally approach the court.

The rule of locus standi have been relaxed and a person acting bonafide and having sufficient
interest in the proceeding of Public Interest Litigation will alone have a locus standi and can
approach the court to wipe out violation of fundamental rights and genuine infraction of statutory
provisions, but not for personal gain or private profit or political motive or any oblique
consideration.

However, the person filing the petition must prove to the satisfaction of the court that the petition
is being filed for a public interest and not just as a frivolous litigation by a busy body.

Public interest litigation is social litigation that provided remedies for all; PIL concept is concept
of locus standi that whole society not standing before court but the some social worker or jurist
file before court behalf of public or society, so locus standi is concept evolved from public
interest litigation, which is changing their dimension and concept in broad. There is no special
person require to the file the case locus standi in this cases are the report which the court are get
matter to consider the case as public interest litigation.

The legal system is designed in such a way to protect and defend the rights of citizens. Courts
take special care when they think that a case has no standing. They review the case carefully, also
consider what may happen if they reject the case, and issue a ruling only after weighing this
information. If courts reject a case, they also do so out of concerns that if they accepted it, it
might set a precedent, or they might issue a ruling which would not be legally binding or would
not stand up to a future challenge because the case had no standing and thus should not have
been heard at all.

The liberalization of the principle of locus standi make possible for the court to recognize a
general interest in any litigant on a matter as sufficient to have locus standi. So the concept of
individual interest, changed to special interest, again to class interest and not to sufficient
interest.

Justice P.N. Bhagawati in the case of S.P. Gupta v. Union of India 1. In this case it was held that
any member of the public or social action group acting bonafide can invoke the Writ
Jurisdiction of the High Courts or the Supreme Court seeking redressal against violation of a
legal or constitutional rights of persons who due to social or economic or any other disability
cannot approach the Court. By this judgment PIL became a potent weapon for the enforcement

1AIR 1982, SC 149


of public duties where executed in action or misdeed resulted in public injury. And as a result
any citizen of India or any consumer groups or social action groups can now approach the apex
court of the country seeking legal remedies in all cases where the interests of general public or a
section of public are at stake.

JUDICIAL ACTIVISM AND JUDICIAL RESTRAINT

When there is a lethargic situation and a gap is there in the functions of legislature and a
executive. To fill in these gaps the role played by the court and respond to the problems of the
people then it is called as Judicial Activism

It steps into the functions of the legislature and executive

RESTRAINT: to stay within its scope and stay as its function is confined to judiciary. It doesnt
utilize the Judicial Review and to perform the functions which are meant for legislature and
executive
CHAPTER III
PUBLIC INTEREST LITIGATION
Judiciary, being the sentinel of constitutional statutory rights of citizens has a special role to play
in the constitutional scheme. It can review legislation and administrative actions or decisions on
the anvil of constitutional law. For the enforcement of fundamental rights one has to move the
Supreme Court or the High Courts directly by invoking Writ Jurisdiction of these courts. But the
high cost and complicated procedure involved in litigation, however, makes equal access to
jurisdiction in mere slogan in respect of millions of destitute and underprivileged masses stricken
by poverty, illiteracy and ignorance. The Supreme Court of India, pioneered the Public Interest
Litigation (PIL) thereby throwing upon the portals of courts to the common man.

Till 1960s and seventies, the concept of litigation in India was still in its rudimentary form and
was seen as a private pursuit for the vindication of private vested interests. Litigation in those
days consisted mainly of some action initiated and continued by certain individuals, usually,
addressing their own grievances/problems. Thus, the initiation and continuance of litigation was
the prerogative of the injured person or the aggrieved party. Even this was greatly limited by the
resources available with those individuals. There was very little organized efforts or attempts to
take up wider issues that affected classes of consumers or the general public at large. However,
all these scenario changed during Eighties with the Supreme Court of India led the concept of
public interest litigation (PIL). The Supreme Court of India gave all individuals in the country
and the newly formed consumer groups or social action groups, an easier access to the law and
introduced in their work a broad public interest perspective.

Legal History.

The Indian PIL is the improved version of PIL of U.S.A. According to Ford Foundation of
U.S.A., Public interest law is the name that has recently been given to efforts that provide legal
representation to previously unrepresented groups and interests. Such efforts have been
undertaken in the recognition that ordinary marketplace for legal services fails to provide such
services to significant segments of the population and to significant interests. Such groups and
interests include the proper environmentalists, consumers, racial and ethnic minorities and
others. The emergency period (1975-1977) witnessed colonial nature of the Indian legal system.
During emergency state repression and governmental lawlessness was widespread. Thousands of
innocent people including political opponents were sent to jails and there was complete
deprivation of civil and political rights. The post emergency period provided an occasion for the
judges of the Supreme Court to openly disregard the impediments of Anglo-Saxon procedure in
providing access to justice to the poor.

Public Interest Litigation popularly known as PIL can be broadly defined as litigation in the
interest of that nebulous entity: the public in general. Prior to 1980s, only the aggrieved party
could personally knock the doors of justice and seek remedy for his grievance and any other
person who was not personally affected could not knock the doors of justice as a proxy for the
victim or the aggrieved party. In other words, only the affected parties had the locus standi
(standing required in law) to file a case and continue the litigation and the non affected persons
had no locus standi to do so. And as a result, there was hardly any link between the rights
guaranteed by the Constitution of Indian Union and the laws made by the legislature on the one
hand and the vast majority of illiterate citizens on the other. The traditional view in regard to
locus standi in Writ jurisdiction has been that only such persons who: a) Has suffered a legal
injury by reason of violation of his legal right or legally protected interest; or b) Is likely to suffer
a legal injury by reason of violation of his legal right or legally protected interest. Thus before a
person acquired locus standi he had to have a personal or individual right which was violated or
threatened to be violated . He should have been a person aggrieved in the sense that he had
suffered or was likely to suffer from prejudice, pecuniary or otherwise.

However, all these scenario gradually changed when the post emergency Supreme Court tackled
the problem of access to justice by people through radical changes and alterations made in the
requirements of locus standi and of party aggrieved. The splendid efforts of Justice P N Bhagwati
and Justice V R Krishna Iyer were instrumental of this juristic revolution of eighties to convert
the Apex Court of India into a Supreme Court for all Indians. Justice V. R. Krishna Iyer and P. N.
Bhagwatirecognised the possibility of providing access to justice to the poor and the exploited
people by relaxing the rules of standing. In the post-emergency period when the political
situations had changed, investigative journalism also began to expose gory scenes of
governmental lawlessness, repression, custodial violence, drawing attention of lawyers, judges,
and social activists. PIL emerged as a result of an informal nexus of pro-active judges, media
persons and social activists. This trend shows starke difference between the traditional justice
delivery system and the modern informal justice system where the judiciary is performing
administrative judicial role. PIL is necessary rejection of laissez faire notions of traditional
jurisprudence.

The first reported case of PIL in 1979 focused on the inhuman conditions of prisons and under
trial prisoners. In HussainaraKhatoon v. State of Bihar2, the PIL was filed by an advocate on
the basis of the news item published in the Indian Express, highlighting the plight of thousands
of undertrial prisoners languishing in various jails in Bihar. These proceeding led to the release
of more than 40,000 undertrial prisoners. Right to speedy justice emerged as a basic fundamental
right which had been denied to these prisoners. The same set pattern was adopted in subsequent
cases.

A new era of the PIL movement was heralded by In 1981 the case of Anil Yadav v. State of
Bihar3, exposed the brutalities of the Police. News paper report revealed that about 33 suspected
criminals were blinded by the police in Bihar by putting the acid into their eyes. Through interim
orders Supreme Court directed the State government to bring the blinded men to Delhi for
medical treatment. It also ordered speedy prosecution of the guilty policemen. The court also
read right to free legal aid as a fundamental right of every accused. Anil Yadavsignalled the
growth of social activism and investigative litigation.

In Citizen for Democracy v. State of Assam 4, the S. C. declared that the handcuffs and other
fetters shall not be forced upon a prisoner while lodged in jail or while in transport or transit
from one jail to another or to the court or back.

Meaning and Definition.

21979 AIR 1369

31982 AIR 1008

4 1995 AIR
According to Black's Law Dictionary- "Public Interest Litigation means a legal action initiated in
a court of law for the enforcement of public interest or general interest in which the public or
class of the community have pecuniary interest or some interest by which their legal rights or
liabilities are affected."

In the case of Peoples Union for Democratic Rights v. Union of India 5, it was held that
Public Interest Litigation which is a strategic arm of the legal aid movement and which is
intended to bring justice within the reach of the poor masses, who constitute the low visibility
area of humanity, is a totally different kind of litigation from the ordinary traditional litigation
which is essentially of an adversary character where there is a dispute between two parties, one
making a claim or seeing relief against the other and that other opposing such claim or relief.
Public interest litigation is brought before the court not for the purpose of enforcing the right of
one individual against another as happens in the case of ordinary litigation, but it is intended to
promote and vindicate public interest which demands that violations of constitutional or legal
rights of large numbers of people who are poor, ignorant or in a socially or economically
disadvantaged position should not go unnoticed and un-redressed.

In the Judges Transfer Case 6 - : Court held Public Interest Litigation can be filed by any
member of public having sufficient interest for public injury arising from violation of legal rights
so as to get judicial redress. This is absolutely necessary for maintaining Rule of law and
accelerating the balance between law and justice.It is a settled law that when a person approaches
the court of equity in exercise of extraordinary jurisdiction, he should approach the court not
only with clean hands but with clean mind, heart and with clean objectives.

Shiram Food & Fertilizer case7 through Public Interest Litigation directed the Co.
Manufacturing hazardous & lethal chemical and gases posing danger to life and health of
workmen & to take all necessary safety measures before re-opening the plant.

5 1982 AIR 1473

6AIR 1982, SC 149

7AIR (1986) 2 SCC 176 SC


In the case of M.C Mehta V. Union of India 8 - In Public Interest Litigation brought against
Ganga water pollution so as to prevent any further pollution of Ganga water. Supreme court held
that petitioner although not a riparian owner is entitled to move the court for the enforcement of
statutory provisions, as he is the person interested in protecting the lives of the people who make
use of Ganga water.

ParmanandKatara V. Union of India9 - :- Supreme Court held in the Public Interest Litigation
filed by a human right activist fighting for general public interest that it is a paramount obligation
of every member of medical profession to give medical aid to every injured citizen as soon as
possible without waiting for any procedural formalities.

Council For Environment Legal Action V. Union Of India 10 - : Public Interest Litigation filed
by registered voluntary organisation regarding economic degradation in coastal area. Supreme
Court issued appropriate orders and directions for enforcing the laws to protect ecology.A report
entitled "Treat Prisoners Equally HC" published in THE TRIBUNE, Aug 23 Punjab & Haryana
High Court quashed the provisions of jail manual dividing prisoners into A , B & C classes after
holding that there cannot be any classification of convicts on the basis of their social status,
education or habit of living .This is a remarkable ruling given by High Court by declaring 576-A
paragraph of the manual to be " Unconstitutional".

State V. Union Of India 11 - : Public Interest Litigation is a strategic arm of the legal aid
movement which intended to bring justice. Rule of Law does not mean that the Protection of the
law must be available only to a fortunate few or that the law should be allowed to be abused and
misused by the vested interest. In a recent ruling of Supreme Court on " GROWTH OF SLUMS"
8(1988) 1 SCC 471

9AIR 1989, SC 2039

10(1996)5 SCC 281

11AIR 1996 Cal 181 at 218


in Delhi through Public Interest Litigation initiated by lawyers Mr. B.L. Wadhera& Mr. Almitra
Patel Court held that large area of public land is covered by the people living in slum area .
Departments despite being giving a dig on the slum clearance, it has been found that more and
more slums are coming into existence. Instead of "Slum Clearance", there is "Slum Creation" in
Delhi. As slums tended to increase; the Court directed the departments to take appropriate action
to check the growth of slums and to create an environment worth for living.

That would be destructive of the Rule of Law which forms one of the essential elements of
public interest in any democratic form of government. The Rule of Law does not mean that the
protection of the law must be available only to a fortunate few or that the law should be allowed
to be prostituted by the vested interests for protecting and upholding the status quo under the
guise of enforcement of their civil and political rights. The poor too have civil and political rights
and the Rule of Law is meant for them also, though today it exists only on paper and not in
reality.

Concept of PIL
According to the jurisprudence of Article 32 of the Constitution of India, The right to move the
Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this
part is guaranteed. Ordinarily, only the aggrieved party has the right to seek redress under
Article 32.

In 1981 Justice P. N. Bhagwati in .S. P. Gupta v. Union of India12, articulated the concept of PIL
as follows, Where a legal wrong or a legal injury is caused to a person or to a determinate class
of persons by reason of violation of any constitutional or legal right or any burden is imposed in
contravention of any constitutional or legal provision or without authority of law or any such
legal wrong or legal injury or illegal burden is threatened and such person or determinate class of
persons by reasons of poverty, helplessness or disability or socially or economically
disadvantaged position unable to approach the court for relief, any member of public can
maintain an application for an appropriate direction, order or writ in the High Court under Article
226 and in case any breach of fundamental rights of such persons or determinate class of

12AIR 1982, SC 149


persons, in this court under Article 32 seeking judicial redress for the legal wrong or legal injury
caused to such person or determinate class of persons.

The rule of locus standi have been relaxed and a person acting bonafide and having sufficient
interest in the proceeding of Public Interest Litigation will alone have a locus standi and can
approach the court to wipe out violation of fundamental rights and genuine infraction of statutory
provisions, but not for personal gain or private profit or political motive or any oblique
consideration.

The Supreme Court in Indian Banks Association, Bombay and ors v. M/s Devkala
Consultancy Service and Ors.13, held that In an appropriate case, where the petitioner might
have moved a court in her private interest and for redressal of the personal grievance, the court in
furtherance of Public Interest may treat it a necessity to enquire into the state of affairs of the
subject of litigation in the interest of justice. Thus a private interest case can also be treated as
public interest case.

In GuruvayurDevaswom Managing Commit. And Anr. v. C.K. Rajan and Ors 14, the
Supreme Court held, The Courts exercising their power of judicial review found to its dismay
that the poorest of the poor, depraved, the illiterate, the urban and rural unorganized labour
sector, women, children, handicapped by 'ignorance, indigence and illiteracy' and other down
trodden have either no access to justice or had been denied justice. A new branch of proceedings
known as 'Social Interest Litigation' or 'Public Interest Litigation' was evolved with a view to
render complete justice to the aforementioned classes of persona. It expanded its wings in course
of time. The Courts in pro bono publico granted relief to the inmates of the prisons, provided
legal aid, directed speedy trial, maintenance of human dignity and covered several other areas.
Representative actions, pro bono publico and test litigations were entertained in keeping with the
current accent on justice to the common man and a necessary disincentive to those who wish to
by pass the, real issues on the merits by suspect reliance on peripheral procedural
shortcomings Pro bono publico constituted a significant state in the present day judicial
system.
13 2004 AIR 4655

14 2003 AIR 1566


They, however, provided the dockets with much greater responsibility for rendering the concept
of justice available to the disadvantaged sections of the society. Public interest litigation has
come to stay and its necessity cannot be overemphasized. The courts evolved a jurisprudence of
compassion. Procedural propriety was to move over giving place to substantive concerns of the
deprivation of rights. The rule of locus standi was diluted. The Court in place of disinterested and
dispassionate adjudicator became active participant in the dispensation of justice.

Subjects of Public Interest Litigation.

Public Interest Litigation is meant for enforcement of fundamental and other legal rights of the
people who are poor, weak, ignorant of legal redressal system or otherwise in a disadvantageous
position, due to their social or economic background. Such litigation can be initiated only for
redressal of a public injury, enforcement of a public duty or vindicating interest of public nature.
It is necessary that the petition is not filed for personal gain or private motive or for other
extraneous consideration and is filed bona fide in public interest. The following are the subjects
which may be litigated under the head of Public Interest Litigation:

(I) The matters of public interest: Generally they include


(i) bonded labour matters
(ii) matters of neglected children
(iii) exploitation of casual labourers and non-payment of wages to them (except in
individual cases
(iv) matters of harassment or torture of persons belonging to Scheduled Castes,
Scheduled Tribes and Economically Backward Classes, either by co-villagers
or by police
(v) matters relating to environmental pollution, disturbance of ecological balance,
drugs, food adulteration, maintenance of heritage and culture, antiques, forests
and wild life,
(vi) petitions from riot victims and
(vii) other matters of public importance.

(II) The matters of private nature: They include (i) threat to or harassment of the petitioner by
private persons, (ii) seeking enquiry by an agency other than local police, (iii) seeking police
protection, (iv) land lordtenant dispute (v) service matters, (vi) admission to medical or
engineering colleges, (vii) early hearing of matters pending in High Court and subordinate courts
and are not considered matters of public interest.
(III) Letter Petitions: Petitions received by post even though not in public interest can be treated
as writ petitions if so directed by the Honble Judge nominated for this purpose. Individual
petitions complaining harassment or torture or death in jail or by police, complaints of atrocities
on women such as harassment for dowry, bride burning, rape, murder and kidnapping,
complaints relating to family pensions and complaints of refusal by police to register the case
can be registered as writ petitions, if so approved by the concerned Honble Judge. If deemed
expedient, a report from the concerned authority is called before placing the matter before the
Honble Judge for directions. If so directed by the Honble Judge, the letter is registered as a writ
petition and is thereafter listed before the Court for hearing.

OTHER CASES

In Electricity Board, Rajasthan v. Mohan Lal15, the Supreme Court held that other authorities
would include all authorities created by the Constitution of India or Statute on whom powers are
conferred by law.

However, Private party can be included in the PIL as Respondent, after making concerned
state authority, a party. For example- if there is a Private factory in Delhi, which is causing
pollution, then people living nearly, or any other person can file a PIL against the Government of
Delhi, Pollution Control Board, and against the private factory. However, a PIL cannot be filed
against the Private party alone.

In Rural Litigation and Entitlement Kendra v. State of U.P 16., Supreme Court rejected the
defense of Res Judicta. Court refused to withdraw the PIL and ordered compensation too. To
curtail custodial violence, Supreme Court in SheelaBarse v. State of Maharashtra17, issued
certain guidelines. Supreme Court has broadened the meaning of Right to live with human
dignity available under the Article 21 of the Constitution of India to a greatest extent possible.

151967 AIR 1857, 1967 SCR (3) 377

161985 AIR 652, 1985 SCR (3) 169

17JT 1988 (3) 15


In D.C.Wadhwa v. State of Bihar18, Supreme Court held that a petitioner, a professor of
political science who had done substantial research and deeply interested in ensuring proper
implementation of the constitutional provisions, challenged the practice followed by the state of
Bihar in repromulgating a number of ordinances without getting the approval of the legislature.
The court held that the petitioner as a member of public has sufficient interest to maintain a
petition under Article 32.

BandhuaMuktiMorcha19 case in 1983, the Supreme Court put the burden of proof on the
respondent stating it would treat every case of forced labor as a case of bonded labor unless
proven otherwise by the employer. Similarly in the Asiad Workers judgment case20, Justice
P.N. Bhagwati held that anyone getting less than the minimum wage can approach the Supreme
Court directly without going through the labor commissioner and lower courts

.CHAPTER IV
CONSTITUTIONAL PHILOSOPHY OF WRITS: DETAILED ANALYSIS
A person whose right is infringed by an arbitrary administrative action may approach the Court
for appropriate remedy. The Constitution of India, under Articles 32 and 226 confers writ
jurisdiction on Supreme Court and High Courts, respectively for enforcement/protection of
fundamental rights of an Individual. Writ is an instrument or order of the Court by which the
Court (Supreme Court or High Courts) directs an Individual or official or an authority to do an
act or abstain from doing an act.

Article 32(2) of the Constitution of India provides: The Supreme Court shall have 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 of
any of rights conferred by this Part.

181987 AIR 579, 1987 SCR (1) 798

191984 AIR 802, 1984 SCR (2) 67

201982 AIR 1473


Article 32 is a fundamental right under Part -III of the Constitution. Under this Article, the
Supreme Court is empowered to relax the traditional rule of Locus Standi and allow the public
interest litigation (PIL) at the instance of public-spirited citizens. The Supreme Court can provide
relief to various types of litigants such as bonded labour, undertrial prisoners, victims of police
torture etc. The Supreme Court may also award exemplary damages by exercising its power
under Article 32 as it has imposed in Bhim Singhs and Rudul Shahs cases.

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 clear from the bare language, this Article guarantees an individual to move the High Court
for enforcement of the fundamental rights as well as for any other purpose also i.e. for
enforcement of any other legal right. Article 226 confers wide powers on the High Courts. It
serves as a big reservoir of judicial power to control administration. Its power under Article 226
cannot be curtailed by legislation. Thus powers of High Courts conferred under Article 226 are
wider as compared to powers conferred on the Supreme Court under Article 32 of the
Constitution of India.

Both the Articles 32 and 226 provide five types of writs namely writ of habeas corpus,
mandamus, prohibition, certiorari and quo-warranto. These are known as prerogative writs in
English Law because they had originated in the Kings prerogative power of superintendence
over the due observance of law by his officers and tribunals. The prerogative writs are extra-
ordinary remedies intended to be applied in exceptional cases in which ordinary legal remedies
are not adequate.

Now, let us discuss the prerogative writs in detail:

A) Writ of Habeas Corpus:-


The expression Habeas Corpus is a Latin term which means to have the body. If a person is
detained unlawfully, his relatives or friends or any person can move the Court by filing an
application under Article 226 in High Court or under Article 32 in Supreme Court for the writ of
Habeas Corpus. The Court on being satisfied with the contents of the application, issues the writ.
This writ is in the nature of an order calling upon the person who has detained another to produce
the latter before the Court, in order to let the Court know on what ground he has been confined
and to set him free if there is no legal justification for the confinement. The Court may also
award exemplary damages. In Bhim Singh Vs State of Jammu& Kashmir21, , the Honble
Apex Court awarded the exemplary damages of Rs.50,000/-(At that time this was a very
significant amount).

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. Even a letter to the judge mentioning illegalities
committed on prisoners in jail can be admitted. In Sunil BatraVs Delhi Administration22, , 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. Courts can also act suomotu in the interests of justice on any
information received by it from any quarter/source. The general principle is that a person
illegally detained in confinement without legal proceedings is entitled to seek the remedy of
habeas corpus.

However, the writ of habeas corpus is not issued in the following cases:

(i) Where the person against whom the writ is issued or the person who is detained is not within
the jurisdiction of the Court.

(ii) To secure the release of a person who has been imprisoned by a Court of law on a criminal
charge.

(iii) 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. I has been described as a great
constitutional privilege or first security of civil liberty. The most characteristic element of the

21AIR 1986 SC 494

221980 SC 1579
writ is its peremptoriness i.e. a speedy and effective remedy for having the legality of detention
of the person enquired and determined by the Court.

Judicial Pronouncements Regarding Habeas Corpus:

KanuSanyalVs. DM Darjeeling23

In this case, a question arose before supreme court if it is necessary to produce before the court
the individual when the matter is pending during arguments and writ of high court is not
issued .The court held that it is not necessary unless high court issued the writ.

Sheelabarsevs state of maharastra24

It is necessary to be filed only by the individual is the question arose before the high court . High
held that it is not required and any individual can file a case because the petition was a filed by a
journalist in this case confirms that any third party can file a case

Itchidevivs union of India25

In this case, ignoring all its requirements supreme court considered a post card as a writ petition
issuing orders to the government in respect of the detention concerned

Madhubalavsnarendrakumar26

It is issued against private individual for illegal detention

Ram bhagatsinghvs state of bihar27

23 1974 AIR 510

24 AIR 1983 SC 378

25 1980 SC 1983

26 AIR 1982 sc 435

27AIR 1953 S.C. 468


It was laid down that court may grant interim bail when high court petition is pending before the
court

EXCEPTION OF RESJUDICATA

In Ghulamsarwarvs Union of India28 it was held that the order of high court will not operate as
Res Judicata. If the doctrine res judicata is applicable in such a case so would be the doctrine of
constructive Res Judicata and if a petitioner could have raised a contention which would make
the detention order fundamentally lawless, but did not do so in high court it would be deemed to
have been raised, and this court, though enjoined by the constitution to protect the right of a
person illegally detained, may become powerless to do so

B) Mandamus:-

The expression Mandamus is a Latin term which means We Command. Mandamus is a


Judicial order issued in the form of a command to any Constitutional, Statutory or Non-Statutory
authority asking to carry out a public duty imposed by law or to refrain from doing a particular
act, which the authority is not entitled to do under the law. It is an important writ to check
arbitrariness of an administrative action. It is also called Writ of Justice

Mandamus demands some kind of activity on the part of the body or person to whom it is
addressed. Thus, when a body omits to decide a matter which it is bound to decide, it can be
commanded to decide the same. Where the Government denies to itself a jurisdiction which it
has under the law or where an authority vested with the power improperly refuses to exercise it,
mandamus can be issued. Thus, mandamus will not be issued unless the applicant has a legal
right to the performance of legal duty of a public nature and the party against whom the writ is
sought is bound to perform that duty.

The rule of Locus Standi is strictly followed in while issuing writ of mandamus. The petitioner
has to prove that he has a right to enforce public duty in his favour. The petitioner can approach
the High Court or Supreme Court for issuing the writ of mandamus on the following grounds:-

28 1967 AIR 1335


(i) Error of jurisdiction;

(a) Lack of jurisdiction

(b) Excess of jurisdiction

(ii) Jurisdictional facts;

(iii) Violation of the principles of natural justice i.e. principles of Rule against bias and Rule of
Audi alterempartem;

(iv) Error of law apparent on the face of record

(v) Abuse of jurisdiction

It is a discretionary remedy and the High Court may refuse to grant mandamus where an
alternative remedy is available for the redressal of the injury complained of. In the matter of
enforcement of fundamental rights, however, the question of alternative remedy does not weigh
so much with the Court since it is the duty of the High Court or the Supreme Court to enforce the
fundamental rights. 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. This writ is also
available against inferior Courts or other Judicial bodies when they have refused to exercise their
jurisdiction and thus to perform their duty

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

(i) 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.

(ii) 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.

(iii) It will not lie against the State legislature to prevent from considering enacting a law alleged
to be violative of constitutional provisions.
(iv) It will not lie against an inferior or ministerial officer who is bound to obey the orders of his
superiors

Thus, Writ of Mandamus is a general remedy whenever justice has been denied to any person.

JUDICIAL PRONOUNCEMENTS RELATED TO WRIT OF MANDAMUS

State of MP vsmandiawara29

In this case it was held that it is not the right of employees to grant of dearness allowance, it said
that is the right of the government, discretion of the government. Hence mandamus issual was
refused

Umakanthvs state of bihar30

A junior ignoring the senior was promoted to a higher cadre this was challenged before the
court , court held that the senior is not as qualified as per norms and hence writ of mandamus
does not arise

Rohtas industries vs its workmen31

Implementation of an award of arbitrator in the interest of public prevails over that


implementation of an award against private individual

MP vsbhailalbhai32

Mandamus can be issued to squash an illegal assessment of tax and for refund of money illegally
realized as consequential relief

29 1952 SC 497

301973 (5) UJ 410 SC

311976 SCR (3) 12

32 1964 SC 1006
C) Prohibition:-

The expression prohibition literally means to prohibit. The Writ of Prohibition is a Judicial
order issued by the Supreme Court or a High Court to an inferior Court or quasi-judicial body
forbidding the latter to continue proceedings therein in excess of its jurisdiction or to usurp a
jurisdiction with which it is not legally vested. Thus, object of the writ is to compel inferior
courts to keep themselves within the limits of their jurisdiction.

Earlier, this writ was used to issue only to judicial and quasi-judicial bodies. But such
requirement is no longer valid. With the expanding dimensions of natural justice and the
requirement of fairness in administrative functions, the rigidity about prohibition has been
liberalized. This writ can now lie to anybody, irrespective of the nature of function exercised by
it, if any of the grounds on which the writ is issued is present.

The writ of prohibition can be issued on the following grounds:

(i) Absence or Excess of jurisdiction;

(ii) Violation of the principles of natural justice;

(iii) Unconstitutionality of a Statute;

(iv) Infraction of Fundamental Rights

Thus, writ of prohibition is available during the pendency of the proceedings and before the
order is made. The object is to secure that the jurisdiction of an inferior court or tribunal is
properly exercised and that it does not usurp the jurisdiction which it does not possess.

D) Certiorari:-
The expression certiorari is a Latin word which means to certify. This writ confers power
on the Supreme Court and High Courts to correct illegality of their decisions. Certiorari is a
judicial order issued by the Supreme Court under Article 32 and/or by the High Court under
Article 226 of the Constitution to an inferior Court or quasi-judicial or any administrative body
to transmit to the Court of records of proceedings pending therein for scrutiny and decide the
legality and validity of the orders passed by them. If the decision is bad in law, it is quashed.

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

(i) Any body of persons;

(ii) Having legal authority;

(iii) To determine questions affecting the rights of subjects;

(iv) Having the duty to act judicially;

(v) Act in excess of legal authority

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

(a) Error of Jurisdiction

(i) Lack of jurisdiction

(ii) Excess of jurisdiction

(b) Abuse of jurisdiction

(d) Error of law apparent on the face of the record

(e) Violation of principles of natural justice

The purpose of the writ of certiorari is not only negative in the sense that it is used to quash an
action but it contains affirmative action as well. It is preventive as well as curative in nature. The
power of judicial review is not restricted where glaring injustice demands affirmative action.

Case study:- In A.K. KripakVs Union of India33, the Supreme Court issued the writ of certiorari
to quash the selection list of the Indian Forest Service on the ground that one of the selected
candidates was the ex-officio member of the selection committee.

33, AIR 1970 SC 150


E) Writ of Quo Warranto:-

The Writ of Quo Warranto questions the title as to the holder of an office. The term Quo
Warranto means what is your authority It is a judicial order asking a person, who occupies
public office, to show by what authority s/he holds the office. If it is found that the holder of the
office has no valid title, then this writ is issued to him to oust from the office.

Thus writ of Quo Warranto is a mode of judicial control in the sense that the proceedings review
the actions of the administrative authority which appointed the person. 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:

(i) The office must be public and it must be created by a statute or by the constitution itself.

(ii) 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.

(iii) There has been a contravention of the Constitution or a statute or statutory instrument, in
appointing such person to that office.

The fundamental basis of the proceeding of Quo Warranto is that the public has an interest to see
that an unlawful claimant does not usurp a public office. It is, however, a discretionary remedy
which the Court may grant or refuse according to the facts and circumstances of each case. Thus,
it may be refused when it is vexatious or where it would be futile in its result or where the
petitioner is guilty of laches or where there is an alternative remedy for ousting the usurper. In
P.L. Lakhan Pal VsA.N.Ray34, the Delhi High Court refused to issue writ against Chief Justice of
India, Justice Ray because it would be futile in its result as the three Judges senior to him already

34AIR 1975 Del.66


resigned. Justice Ray becomes the seniormost and as such can be re-appointed even it were
assumed that the appointment of Chief Justice of India should be on the basis of seniority rule.

K bheemarajuvs state of andhrapradesh35

Appointment of a government pleader is the issue here. appointment was made even though he
doesnt have the experience, but he contented that he had rendered one year service as
government pleader

Supreme court issued writ of quo warranto saying he is not a qualified person

Satish Chandra vsrajasthanuniversiry36

Rajasthan high court held that is not necessary to file the case by the person who s a contender
for the post since it is a public post any person interested in such appointment can file the case

Ngakusasenavsreshingkeishing37

Petitioner contented that since counsil of minister do not have command in house the court was
asked to dismiss them

Article 144 says the appointment of the CM is in the hands of the governer and he has to prove
such appointment before the house hence quo warranto cannot be issued

G D karkharevsshende

This is case is in respect of attorney general, as per the rules invoked he was not a qualified
person for the post and quo warranto issued to terminate from the services

CHAPTER V

CONCLUSION:
35AIR 1981 AP 24

36AIR 1970 Raj 184

37 AIR 1972 SC 145


Thus it is clear that vast powers are vested with the Judiciary to control an administrative action
when it infringes fundamental rights of the citizens or when it goes beyond the spirit of
Grundnorm of our country i.e Constitution of India. It ensures the Rule of Law and proper check
and balances between the three organs of our democratic system.The philosophy of writs is well
synchronized in our Constitutional provisions to ensure that rights of citizens are not suppressed
by an arbitrary administrative or Judicial action.
BIBLIOGRAPHY

Books:
Dr. J. N. Pandey, Constitutional Law of India, (52nd ed., Central law agency, 2015)
Subhash C Kashyap, Constitution Making Since 1950, 2010, Universal Law Publishing
Co., 10.11.13
Durga Das Basu, Commentary on the Constitution of India, (9th ed., Lexis Nexis, 2015)
Mahendra P. Singh, Constitution of India, (11th ed., V. N. Shuklas, 2008)
V. Dicey, An Introduction to the study of the Law of the Constitution, (10th ed., Universal
law publishing Co., 2008)
Ian Loveland, Constitutional law, Administrative laws and Human rights (6th ed., Oxford
University press, 2010

Internet Sources:
www.criticaltwenties.in
www.manupatrafast.com
www.supremecourtofindia.nic.in
www.thehindu.com
www.pucl.org