B.B.A., L.L.B (Hons.

) / Third Trimester- March 2017

Final Draft

Constitutional Law- I

Research Project Topic:

“ARTICLE 32 & 226”

Submitted By:

Sangini Nagpal

Roll no. : A043

FYBBA

Submitted To:

Shruti Rajgriha

Asst. Professor (Constitutional Law- I)

School of Law, NMIMS (Deemed to be University)

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 INDEX

Sr.no. CHAPTERS Page no.

1 INTRODUCTION 4
2 HISTORY 5
3 LEGAL ANALYSIS OF WRITS 6
4 DIFFERENCE BETWEEN WRIT 13
JURISDICTION OF HC AND HC
5 DIFFERENCE BETWEEN CERTIORARI 14
AND PROHIBITION
6 WRIT JURISDICTION OF HIGH COURT 15
7 CONCLUSION 16

8 BIBLIOGRAPHY 17

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 RESEARCH QUESTIONS

 How is Article 32 different from other fundamental rights?

 What are the basic differences between the two articles that is Article 32 and Article
226?
 Analysing different cases and answering the question whether judiciary system of
India gives justice to its citizens?

HYPOTHESIS

The constitution of India has given wide powers under article 32 and 226 to the public in
general for the enforcement of rights. Under the Indian legal system, jurisdiction to issue
'prerogative writs' is given to the Supreme Court, and to the High Courts of Judicature of all
Indian states. Parts of the law relating to writs are set forth in the Constitution of India. The
Supreme Court, the highest in the country, may issue writs under Article 32 of the
Constitution for enforcement of Fundamental Rights and under Articles 139 for enforcement
of rights other than Fundamental Rights, while High Courts, the superior courts of the States,
may issue writs under Articles 226.

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 INTRODUCTION AND HISTORY OF WRIT JURISDICTION

The Indian Constitution guarantees to the people certain basic human rights and freedoms,
such as, equal protection of laws, freedom of speech and expression, freedom of worship and
religion, freedom of assembly and association, freedom to move freely and to reside and
settle anywhere in India, freedom to follow any occupation, trade or business, freedom of
person, freedom against double jeopardy and against ex-post facto laws. The Constitution
provides effective machinery in Articles 32 and 226 for the enforcement of these Rights.
Without due enforcement, these Rights will be of not much use. The judiciary ensures an
effective and speedy enforcement of these rights.1 The Supreme Court has the power to issue
writs in nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari
whichever may be appropriate for the enforcement of fundamental rights. Similar powers
have been given to the High Court by Article 226 which is wider than those given to the
Supreme Court2.

The High can issue writs not only for the enforcement of fundamental rights but for any other
purposes also. Here are some other purposes for HC to issue writs:-

 In Chhetriya Pradushan Mukti Sangharsh Samiti v. State of U.P. 3, the SC held

that Article 32 is a great and salutary safeguard for preservation of fundamental rights
of the citizen. It guarantees enforcement of fundamental rights but the violation of
fundamental rights is the sine qua non for seeking enforcement of those rights by SC.
In order to establish the violation of fundamental right, the court has to consider the
direct and inevitable consequence of the action which is sought to be remedied or the
guarantee of which is sought to be enforced4.
 In L. Chandra Kumar v. Union of India5the court held that jurisdiction conferred
upon the Supreme Court under article 32 of the constitution is a part of the inviolable
basic structure of the Constitution. 6

2 Supra note 3 at 306

3 Chhetriya Pradushan Mukti Sangharsh Samiti v. State of U.P.: AIR 1990 SC 2060.
4 Supra note 3 at 307
5 L. Chandra Kumar v. Union of India, AIR
1997 SC 1125.
6 Supra note 3 at 307

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 HISTORY

Historically writ originated and developed in British legal system As defined by Blackstone,
‘writ is a mandatory letter from the king-in- parliament, sealed with his great seal, and
directed to the Sheriff of the country wherein the injury is committed or supposed so to be
requiring him to command the wrongdoer or party caused either to do justice to the
complainant, or else to appear in court and answer the accusation against him.’

Initially writs were royal prerogatives. Since only the King or Queen as the fountain of justice
could issue writs, they were called prorogate writs. They were called prerogative writs
because there were conceived as being intimately prerogative writs because they were
conceived as being intimately connected with the rights of the crown. A Prerogative writ was
issued only on some probable cause being shown to the satisfaction of the court. The
prerogative writs were five in number—Habeas Corpus, Certiorari, prohibition, Mandamus,
and Quo-Warranto. The King issued them against his officers to compel them to exercise
their functions properly or to prevent them front abusing their powers.

In India, The first writ was issued by Supreme Court at Calcutta. Later, the SCs of Bombay
and Madras also started issuing the writs7.

7Anonymous, Writ Jurisdiction, Assignment Point, (Sep 15, 2016, 3:20 p.m.)
http://www.assignmentpoint.com/arts/law/writ-jurisdiction.html

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 LEGAL ANALYSIS OF THE WRITS

 HABEAS CORPUS

A writ of habeas corpus is in 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 imprisonment.
The words habeas corpus means literally to have the body. By this writ, therefore the court
secures the body of a person who has been imprisoned and to set him free if there is no lawful
justification for the imprisonment. The writ may be addressed to any person whatever, an
official or a private person. Who has another person in his custody and disobedience of writ
is met with punishment of contempt of court.

AGAINST WHOM HABEAS CORPUS CAN BE ISSUED:

Writ of Habeas Corpus is issued against any person or authority, who has illegally
detained any person, unlike other writ habeas corpus can be issued even against a private
individual.

Case laws:

1. In sunil Bhatra v/s delhi administration8 it has been held that the writ of habeas
corpus can be issued not only for releasing a person from illegal detention but also for
protecting prisoners from the inhuman and barbarous treatment. the dynamic role of
judicial remedies imports to the habeas corpus writ a versatile vitality and operational
utility as bastion of liberty even within jails.

2. In veena sethi v/s state of bihar9 In this case it was held that the court was informed
through a letter that some prisoners, who were insane at the time of trial but
subsequently declared sane, were not released due to inaction of state authorities and
had to remain in jails from 20 to 30 years. the court directed they be released
forthwith.

8 AIR 1980 SC 1795

9 AIR 1983 SC 339 43

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3. In D.S Nakara v/s Union of India10 in this case it was held that a registered societies,
non-political, non-profit making and voluntary organizations are entitled to file a writ
petition ie, habeas corpus under article 32 of the constitution for espousing the cause
for the large number of old infirm pensioners who are unable to approach the court
individually. We command you, that the body of A.B. in Our prison under your
custody detained, as it is said, together with the day and cause of his taking and
detention, by whatever name the said A.B. may be known therein, you have at our
Court ... to undergo and to receive that which our Court shall then and there consider
and order in that behalf. Hereof in no way fail, at your peril. And have you then there
this writ. The habeas writ was used in the Rajan case, a student victim of torture in
local police custody during the nationwide Emergency in India in 1976.On 12th March
2014, Subrata Roy's counsel approached the Chief Justice moving a habeas corpus
petition. It was also filed by Panthers Party to protest the imprisonment of Anna
Hazare, a social activist.

CONDITIONS NECESSARY TO ISSUE HABEAS CORPUS:

Where the detention is prima facie illegal i.e., there is no law supporting it.

Where the detention is under some provision of law:-

(a) if the provision is unconstitutional, or

(b) If the detention is not in conformity with the procedure established by that law11

 MANDAMUS

Mandamus literally means a command. It demands some activity on the part of the body or
person to whom it is addressed. In short, it commands the person to whom it is addressed to
perform some public or quasi-public legal duty which he has refused to perform and the
performance of which cannot be enforced by any other adequate legal remedy. It is, therefore,
clear that mandamus will not issue 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 to bound to

10 8 1983 1 SCC 304

11 Himanshi Mittal, Constitutional Law of India, at 177 (1 st Ed.)

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perform that duty. It is a discretionary remedy and the HC may refuse to grant mandamus
where there is an alternative remedy for redress of the injury complained of.

AGAINST WHOM MANDAMUS CAN BE ISSUED?

The writ of mandamus will lie against a person holding public office permanently or
temporarily or public body or corporation or an inferior court or tribunal. It does not lie
against a private individual. Mandamus will lie against a government or its officers where
the government or the officer exceeds the limits of his powers or fails to comply with the
conditions imposed by a statute for exercise of such powers.

The applicant must have a legal right to the performance of a legal duty. It will not issue
where to do or not to do an act is left to the discretion of the authority. It was refused where
the legal duty arose from an agreement which was in dispute. The duty to be enforced by a
writ mandamus could arise by a provision of the Constitution or of a statute or of the
common law.

When it will not lie?

The writ of mandamus cannot be granted in case of following circumstances:

1. when the duty is merely discretionary

2. against a private individual or any private organization because they are not entrusted with
public duty.

3. A writ of mandamus cannot be granted to enforce an obligation arising out of contract.

(Practical example is the case of the Kanchi Shankaracharya who got entangled in a criminal
case. Looks like the police froze the accounts of the trust he runs and subsequently, the writ
mandamus was filed and upheld by the Chennai High Court.)

Case laws:

1. In The Praga Tools Corporation v. C.V. Imanual12 : The Supreme Court stated that
mandamus might under certain circumstances lie against a private individual if it is
established that he has colluded with a public authority. The legal duty must be of a
public nature.
12 Praga Tools Corporation v. C.V. Imanual, A.l.R. 1969 S.C. 1306

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 2. Raman & Raman v. State of Madras13: It will not issue against a private individual
to enforce a private right such as a contract .Even though mandamus does not lie to
enforce a contract inter partes, it will lie where the petitioner's contractual right with a
third party is interfered with by the State. Mandamus will not issue to enforce
departmental manuals or instructions not having any statutory force which do not give
rise to any legal right in favor of the petitioner as in the cases.

CONDITIONS NECESSARY TO ISSUE MANDAMUS.-

1. The Writ can granted against a public authority if

2. Acted against the law
3. Exceeded his limits of power
4. Acted with mala fides
5. Did not apply his mind
6. Abused his discretionary powers
7. Did not take into account relevant consideration

8. Has taken into account irrelevant consideration

 CERTIORARI

The literal meaning of the word ‘certiorari’ is “to be more fully informed of”. Though
prohibition and certiorari are both issued against Courts or tribunals exercising judicial or
quasi-judicial powers, certiorari is issued to quash the order or decision of the tribunal while
prohibition is issued to prohibit the tribunal from an ultra vires order or decision. While
prohibition is available at an earlier stage, certiorari is available at a later stage, on similar
grounds. The object of both is to secure that the jurisdiction of an inferior court or tribunal is
properly exercised and to see that it does not usurp the jurisdiction for which it does not
possess an authority.

1. Radheshyam Khare v. State of Madhya Pradesh14: The Supreme Court

observed that it consists of four components viz, (a) a body of persons; (b) having

13 Raman & Raman v. State of Madras, A.l.R. 1959 S.C. 694

14 Radheshyam Khare v. State of Madhya Pradesh, AIR 1959 SC 107

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 legal authority; (c) to determine questions affecting the rights of subjects; and (d)
having the duty to act judicially.

2. Province of Bombay v. Khushaldas S. Advani15 : In this case it was held that

whenever any body of person having legal authority to determine questions
affecting the rights of subjects and having the duty to act judicially acts in excess
of their legal authority, a writ of certiorari will lies. it does not lie to remove
merely ministerial act or to remove or cancel executive administrative acts.

CONDITIONS NECESSARY TO ISSUE CERTIORARI:

The writ of certiorari is issued to a judicial or quasi-judicial body on the following

grounds-

(a) where there is want or excess of jurisdiction,

(b) where there is a violation of procedure or disregards of principles of natural justice,

(c) where there is error of law apparent on the face of the record but not error of a fact. 16

 QUO WARRANTO

Quo warranto is a proceeding whereby the court enquires into the legality of the claim which
a party asserts to a public office, and to oust him/her from its enjoyment if the claim is found
to be fake or invalid.

CONDITIONS TO ISSUE QUO WARRANTO:

A writ of quo warranto can be issued if the following conditions are satisfied:

1. Jamalpur Arya Samaj v. Dr. D. Ram17: The writ of quo warranto against the
members of the working committee of the Bihar Raj Arya Pratinidhi Sabha a
private religious organization was refused because the office was not a public
office. The office in question must be a public office. It must be established that
the office held by the usurper is a public office. A public office means an office in

15 Province of Bombay v. Khushaldas S. Advani, AIR 1950 SC 222

16 Supra note 12 at 172
17 Jamalpur Arya Samaj v. Dr. D. Ram, AIR 1954 Pat 297

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 which public have an interest. The writ of quo-warranto will not issue in respect of
an office of private nature.

2. G.D. Karkare v. T.L. Shevde:18 A substantive office means an office independent

in title as distinguished from a deputy or servant. It was held that quo warranto
would issue if the office is permanent even if it is held by the holder at the pleasure
of the State. The office may be high or low. The office must be of substantive
character. Quo warranto will lie only where office in dispute is of substantive
character i.e., an office independent in title.19

 PROHIBITION

Writ of prohibition is issued by a superior court to an inferior court, tribunal or other

public body having judicial or quasi-judicial function to prevent it from assuming
jurisdiction which it does not possess or exceeding jurisdiction or acting in contravention
of the law of the land or principles of natural justice. It commands such court, body or
tribunal to refrain from doing something which it is about to do.

AGAINST WHOM PROHIBITION CAN BE ISSUED

The writ of prohibition was issued only against a public authority or an authority set up by
a statute exercising judicial or quasi-judicial functions. It did not lie against a private
authority. Where a statutory authority having no judicial or quasi-judicial function act
illegally, mandamus may be issued and if it is about to act, injunction may be proper
remedy, not prohibition. The writ of prohibition will not issue against a legislature to
retrain from exercising legislatives functions but it can issue against a body or authority
used with or authorized to make or enforce subordinate legislation.

CONDITIONS NECESSARY TO ISSUE PROHIBITION:-

(1) Like writ of certiorari, prohibition can be issued only against authorities exercising
judicial or quasi-judicial functions.

18 G.D. Karkare v. T.L. Shevde, AIR 1952 Nag 330

19 Supra note 12 at 176

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(2) The writ can be issued only where such judicial or quasi-judicial authority assumes
jurisdiction which does not have or exceeds the jurisdiction which it has or where
proceedings are in contravention of law or principles of natural justice.

(3) At the time of the issue of the writ, proceedings must be pending.

(4) Where proceedings are partly within the jurisdiction of such authority and partly in
excess of its jurisdiction, the writ will lie only against that part of the proceedings which is
in excess of its jurisdiction.

(5) The authority should also continue to function. If before the issue of the writ the
authority becomes functus, officio, prohibition will not be appropriate remedy.

(6) There should not be deliberate concealment or misstatement of material facts which
may mislead the court.20

Case laws:

S. Govind Menon vs. union of India21 Prohibition is not a continuation of the

proceedings to be prohibited. Its object is on the contrary to arrest the inferior tribunal's
proceedings. It is a collateral matter progress essentially between the two tribunals, an
inferior one and other superior one by which the latter, by virtue its power of
superintendence over the former, restrains it within its rightful competence. Its nature is
held to depend upon the nature of proceeding to be prohibited. The writ can be issued only
when the proceedings are pending in a court if the proceeding has matured into decision,
writ will not lie. When the court, before whom the matter is pending, has ceased to exist,
in that condition too, the writ of prohibition will not lie because there can be no
proceedings upon which it can operate but on the other hand, if the court is functioning,
the writ can be issued at any stage of the proceeding before the inferior court or tribunal. It
can be issued only against a judicial or legislative function.

20 Supra note 12 at 174

21 1 AIR 1967 SC 1274

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 DIFFERENCE BETWEEN ARTICLE 32 & ARTICLE 226

Article 32

1. Article 32 empowers the Supreme Court to issue writs.

2. Article 32 is a fundamental right, and it is included in Part –III of the Constitution. Article
32 is a basic feature of the Constitution. Article 226 is not a fundamental right.

3. During the period of emergency, the fundamental rights (Excepts the articles 21 and 22)
can be suspended. Therefore, Article 32 can also be suspended during emergency Period.

4. The applicant can approach the Supreme Court as a right, being it is fundamental right.

5. Article 32 empowers the Supreme Court to issue the writs only when the Fundamental
Rights are violated or threatened

Article 226

1. Article 226 empowers every High Court to issue the writs.

2. Article 32 is itself a fundamental right. Article 226 is not a fundamental right.

3. The President of India cannot suspend Article 226 during the period of Emergency

4. Article 226 is not a right as that of Article 32. The High Court may issue writs according to
its discretionary power.

5. Article 226 enables the High Court to issue orders to writs in the nature of habeas corpus,
mandamus, prohibition, certiorari, quowarranto, to protect aggrieved and any other purpose.

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 DIFFRERENCE BETWEEN WRIT JURISDICTION OF SUPREME COURT
AND HIGH COURT

In a sense, the power of the High Courts to issue these writs is wider than that of the
Supreme Court in as much as under Art.32 of the Constitution the Supreme Court has the
power to issue these writs only for the purpose of enforcement of the Fundamental Rights
whereas under Art. 226 a High Court can issue these writs not only for purpose of
enforcement of Fundamental Rights but also for the redress of any other injury or illegality,
owing to contravention of the ordinary law, provided certain conditions as satisfied.

 An application to a High Court under Art. 226 will lie not only where a Fundamental
Right has been infringed but also where some other limitations imposed by the
Constitution e.g. where a State Legislature has imposed a sales tax in contravention
of the limitations imposed by Art. 286.
But an application under Art. 32 shall not lie in any case unless the right infringed is a
fundamental right enumerated in Part III of the Constitution.
 Another point of distinction between the two jurisdictions is that while SC can issue
writ against any person or Government within the territory of India, a HC can, under
Art. 226, issue a writ against any person, Government or other authority only if such
person, Government or authority is physically resident or located within the territorial
jurisdiction of the particular HC extends.
 The SC has been assigned by the Constitution a special role as “the protector and the
guarantor of fundamental rights.” By Art. 32(1). In an appropriate case where the
court feels that the investigation by the police authorities is not in proper direction and
in order to do complete justice in the case and where the high police officials are
involved in the crime, it is always open to the Court to hand over the investigation to
the independent agency like CBI.22

22Durga Das Basu, Introduction to the constitution of India, at 144 (22 nd Ed. 2015)

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 DIFFERENCE BETWEEN CERTIORARI AND PROHIBITION

Prohibition and certiorari are much in common. Both the writs are issued with the object of
restraining the inferior courts from exceeding their jurisdiction.

Hari Vishnu Kamath vs. Ahmad Ishaque23: In this case the Supreme Court has expressed
the difference of the two writs. When an inferior Court takes up for hearing a matter over
which it has no jurisdiction, the person against whom the proceedings are taken, can move
the Supreme Court for a writ of prohibition and that an order will be issued forbidding the
inferior court from continuing the proceeding.

On the other hand, if the court hears the case or the matter and gives a decision, the party
aggrieved would have to move the Supreme Court for a writ of certiorari. On that an order
will be made quashing the decision on the ground of jurisdiction.

When the case is pending before the court but it has not been finally disposed of, the Supreme
Court has to apply both prohibition and certiorari; prohibition to prevent the court to proceed
further with the case and certiorari for what has been already decided.

Prohibition like certiorari lies only against judicial or quasi-judicial bodies. It does not lie
against a public authority which acts purely on an executive or administrative capacity, nor to
a legislative body.

Thus, the object of the writ of prohibition is prevention rather than cure, while certiorari is
used as a cure.24

23Hari Vishnu Kamath vs. Ahmad Ishaque, AIR 1955 S.C. 233
24Urmilesh kumar, Difference between Prohibition and Certiorari, Share your Essays, (Sep 15, 2016, 2:31 p.m.)
http://www.shareyouressays.com/115310/difference-between-prohibition-and-certiorari-india

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 CONCLUSION

From the above research of writ jurisdiction of Supreme Court and High Court, we can
conclude that aspect of writ jurisdiction of High Court is greater than that of Supreme Court
and with the above research project. Through the legal analysis of all the writs, we can say
that writs are mostly invoked against states. Powerful orders in writ jurisdiction have
immediate effect and are issued when Public Interest Litigation are filed and major work of
High courts lie in writ jurisdiction. 25

By enlarging the scope of Article 32 and 226, judiciary has brought justice and revolutionized
constitutional jurisprudence. It makes the Constitution a living, dynamic document.

The Indian judiciary has dispensed with the traditional doctrine of locus standi, so that if a
detained person is not in a position to file a petition, it can be moved on his behalf by any
other person. The scope of habeas relief has expanded in recent times by actions of the Indian
judiciary.

"The language of Article 226 does not admit of any limitation on the powers of the High
Court for exercise of jurisdiction, hereunder, though by various decisions of the Apex Court
with varying and divergent views it has been held that jurisdiction under Article 226 can be
exercised only when body or authority, decision of which is complained was exercising its
powers in discharge or public duty and that writ is a public law remedy.

25
Professor G.B. Reddy, Rights to Constitutional Remedies Writs, (Sep 15, 2016, 3:31 p.m.)
www.mcrhrdi.gov.in/splfc/week3/PCCI-Constitutional Remedies - Dr.G.B.Reddy.pdf

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 BIBLIOGRAPHY

1. Ruma Pal & Samarditya Pal, Professor MP Jain-Indian Constitutional Law, ( 6th Ed.
2013)
2. Mamta Rao, Constitutional law, (1st Ed. 2013)
3. Durga Das Basu, Introduction to the constitution of India, (22nd Ed. 2015)

4. Himanshi Mittal, Constitutional Law of India, (1st Ed.)

a. SITES REFFERED :-

5. Anonymous, Writ Jurisdiction, Assignment Point, (Sep 15, 2016, 3:20 p.m.)
http://www.assignmentpoint.com/arts/law/writ-jurisdiction.html
6. Professor G.B. Reddy, Rights to Constitutional Remedies Writs, (Sep 15, 2016, 3:31
p.m.) www.mcrhrdi.gov.in/splfc/week3/PCCI-Constitutional Remedies -
Dr.G.B.Reddy.pdf
7. Urmilesh kumar, Difference between Prohibition and Certiorari, Share your Essays,
(Sep 15, 2016, 2:31 p.m.) http://www.shareyouressays.com/115310/difference-
between-prohibition-and-certiorari-india
8. supremecourtofindia.nic.in/outtoday/W.P.
9. http://indiankanoon.org/doc/1712542/

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