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INTRODUCTION7
MANDAMUS...10
CERTIORARI.14
PROHIBITION16
QUO WARRANTO.18
HABEAS CORPUS.19
CONCLUSION21
BIBLIOGRAPHY22
INTRODUCTION
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Rights without remedies are meaningless so founding fathers have inserted article 32
by which an individual can get a remedy by infringement of fundamental right. Article
32 of the Constitution gives power to the Supreme Court to issue writs in case of
breach of Fundamental rights of any citizen by the state. By such writs the Judiciary
can control the administrative actions and prevent any kind of arbitrary use of power
and discretion.
- Mandamus
- Certiorari
- Prohibition
- Quo warranto
- Habeas corpus
Page | 4
SCOPE OF ARTICLE 32
Only fundamental rights can be enforced under article 32. Some decisions have
pointed out that since the remedy under article 32(1) is itself the enforcement of
fundamental right, Supreme Court is under duty to grant relief for violation of a
substantive fundamental right.1 Supreme court has stated that where relief through
High Court is available under article 226, the party should first approach High Court. 2
The Supreme Court is constituted as guarantor and protector 3 of fundamental rights,
and it cannot refuse to entertain applications seeking protection against infringement
of such rights.4 Article 32 has been described as the very soul and heart of Indian
Constitution . Jurisdiction conferred on article 32 is an important and integral part of
the basic structure of Constitution of India and no act of Parliament can abrogate it or
take it away except by way of impermissible erosion of fundamental principles of
constitutional scheme. It provides an inexpensive and expeditious remedy. In
Ambedkar's memorable words: 'If I was asked to name any particular Article in the
Constitution as the most important - an Article without which this Constitution would
be a nullity- I could not refer to any other Article except this one. It is the very soul of
the Constitution and the very heart of it'.
LOCUS STANDI
In Indian law, 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. Public interest litigation is the power given to
the public by courts through judicial activism. 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. The development of PIL
has largely modified the rule of locus standi. PIL may be transferred to appropriate
High Court.6 A letter in PIL should be addressed to the court not to an individual
judge.7 PIL cannot be entertained where stand taken was contrary to stand taken by
those who are affected by action.8
MANDAMUS
A writ of mandamus or mandamus (which means "we command" in Latin), or
sometimes mandate, is the name of one of the prerogative writs in the common law,
and is "issued by a superior court to compel a lower court or a government officer to
perform mandatory or purely ministerial duties correctly". Mandamus lies to enforce a
public duty in the performance of which the petitioner has a sufficient legal interest,
but he must show that he has demanded performance which has been refused. 9 It is
discretionary and will not be granted if there is an alternative remedy equally
beneficial, convenient and effective.10
Definition of Mandamus
the writ. A writ of mandamus or remedy is pre -eminently a public law remedy and is
not generally available against private wrongs. It is used for enforcement of various
rights of the public or to compel the public statutory authorities to discharge their
duties and to act within the bounds. It may be used to do justice when there is
wrongful exercise of power or a refusal to perform duties.11
Mandamus was introduced in India by the Letters Patent creating the Supreme Court
in Calcutta in 1773. The Supreme Courts in the Presidency towns were empowered to
issue the writ. The Supreme Court can also issue mandamus for the enforcement of
fundamental rights.
Mandamus lies against authorities whose duty is to perform certain acts and they
have failed to do so. Under following circumstances mandamus can be issued :
(i) The applicant must have a legal right to the performance of a legal duty. 12 It
will not be issued where to do or not to do an act is left to the discretion of the
authority.13 It was refused where the legal duty arose from an agreement which
was in dispute.14 The duty to be enforced by a writ mandamus could arise by a
provision of the Constitution15 or of a statute16 or of the common law.17
(ii) The legal duty must be of a public nature. In The Praga Tools Corporation v.
C.V. Imanual, A.l.R. 1969 S.C. 1306 : 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.
It will not issue against a private individual to enforce a private right such as a
contract.18Even though mandamus does not lie to enforce a contract inter
12 Dr. Rai Shivendra Bahadur v, Governing Body of the Nalunda College, A.I.R. 1962 S.C. 1210.
14 Carlsbad Mineral Water Mfg. Co. v. H.M. Jagtiani, A.I.R. 1952 Cal. 315.
partes, it will lie where the petitioner's contractual right with a third party is
interfered with by the State.19
If the authority were under law obliged to exercise discretion, mandamus would
lie to exercise it in one way or the other. Mandamus can be issued to compel an
income-tax officer to carry out the instructions issued by income-tax appellate
tribunal exercising its appellate power 20. Again it can be issued to a municipality
to discharge its statutory duty.
Where there is no statutory provision, executive instructions fill in the gap and
are capable of conferring rights on the citizen imposing obligations on the
authorities. In appropriate cases the courts may even compel the performance
of such a duty.21 Mandamus is not available where the order upon which the
alleged right of the petitioner is founded is itself ultra vires. 22 Where provisions
are merely directory, non-compliance with them does not render an act invalid
and hence no mandamus issues.
(iii) The right sought to be enforced must be subsisting on the date of the
petition. If the interest of the petitioner has been lawfully terminated before that
date, he is not entitled to the writ.23
(iv) As a general rule, mandamus is not issued in anticipation of injury. There are
exceptions to this rule. Anybody who is likely to be affected by the order of a
public officer is entitled to bring an application for mandamus if the officer acts
in contravention of his statutory duty.24 A person against whom an illegal or
unconstitutional order is made is entitled to apply to the court for redress even
before such order is actually enforced against him or even before something to
his detriment is done in pursuance of the order. For, the issue of such order
constitutes an immediate encroachment on his rights.25
21 Jiwat Bai & Sons v. G.C. Batra. A.l.R. 1976 Delhi 310
25 Bengal Immunity Co. Ltd. vd. State of Bihar, A.I.R. 1955 S.C. 661
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In India, it will not lie upon the President and the Governor of a State in their personal
capacities.26 However, the Constitution expressly provides that appropriate
proceedings may be brought against the Government of India and the Government of
a State.27 No mandamus will lie against an officer or member of parliament or an
officer or member of the legislature of a State In whom powers are vested by or under
the Constitution for regulating procedure or the conduct of business or for maintaining
order in Parliament or the State legislature. 28 Mandamus will not be issued to a
legislature to forbid it from passing legislation repugnant to the fundamental rights. 29
Article 329 of the Constitution restrains any law courts from entertaining electoral
matters such as the validity any law relating to the delimitation of constituencies or
the allotment of seats to such constituencies, made or purporting to beside under
article 327 or article 328 and provides that no election to either House of Parliament
or to the House or either House of the legislature of a State shall be questioned except
by an election petition presented as provided by Parliament. Election includes
everything from the issue of the notification to the announcement of the result. It is
not therefore possible to obtain mandamus against officials conducting the various
stages of an election, ft was refused against a returning officer who rejected a
nomination paper.30 This ban however applies only in respect of elections to
Parliament and State legislatures.
Mandamus lies to secure the performance of a public duty. If the petitioner has
sufficient legal interest in the performance it will issue even if the body against which
it is claimed is not a statutory body. Thus it was issued against the Sanskrit Council;
which was constituted by a resolution of the state government to compel it to hold the
examination and publish the results. 31 However, it will not lie to secure performance
by a company of a duty towards its employees which is not of a public nature. 32
32 The Praga Toots Corporation v. C.V. immanuel, A.I.R. 1969 S.C 1306
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Mandamus is not refused on the ground that there is an adequate alternate remedy
where the petitioner complains that his fundamental right is infringed.33 The courts are
duty bound to protect the fundamental rights and therefore mandamus is issued. It is
only when mandamus is issued "for any other purpose" that the existence of an
alternate remedy bars its issuance.34Mandamus will not, however, be refused when
ordinary civil proceedings or administrative appeals or revision do not provide an
equally effective and convenient remedy.
For the issue of mandamus against an administrative authority the affected individual
must demand justice and only on refusal he has right to approach the Court. In S.I.
Syndicate v. Union of India35, the Supreme Court has adopted the following statement
of law in this regard. :
"As a general rule the orders would not be granted unless the party complained
of has known what it was he was required to do, so that he had the means of
considering whether or not he should comply, and it must be shown by evidence
that there was a distinct demand of that which the party seeking the mandamus
desires to enforce, and that the demand was met by a refusal."
Thus, a party seeking mandamus must show that the demand justice from the
authority concerned by performing his duty and that the demand was refused. In
S.I.Syndicate the court refused to grant mandamus as there was no such demand or
refusal. Where a civil servant approached the court for mandamus against wrongful
denial of promotion, he was denied the relief because of his failure to make
representation to the government against injustice. 36 The demand for justice is not a
matter of form but a matter of substance and it is necessary that a "proper and
sufficient matter has to be made". 37 The demand must be made to the proper
authority and not to an authority which is not in a position to perform its duty in
manner demanded. It is suggested that the court should not fossilize this rule into
something rigid and inflexible but keep it as flexible. Demand may also not be
necessary "where it is obvious that the respondent would not comply with it and
therefore it would be but an ideal formality."
Conclusion
Hence the writ of mandamus is to protect the interest of the public from the powers
given to them to affect the rights and liabilities of the people. This writ makes sure
that the power or the duties are not misused by the executive or administration and
are duly fulfilled. It safeguards the public from the misuse of authority by the
administrative bodies.
Hence it forms one of basic tool in the hands of the common people against the
administrative bodies if they do not fulfil the duties which by statutes they are bound
to perform.
CERTIORARI
Certiorari is a Latin word meaning "to be informed of, or to be made certain in regard
to". Literally, Certiorari means to be certified. The writ of certiorari is issued by the
Supreme Court to some inferior court or tribunal to transfer the matter to it or to some
other superior authority for proper consideration. It is a writ (order) of a higher court
to a lower court to send all the documents in a case to it so the higher court can
review the lower courts decision. Appellate review of a case that is granted by the
issuance of certiorari is sometimes called an appeal, although such review is at the
discretion of the appellate court. A party, the petitioner, files a petition for certiorari
with the appellate court after a judgment has been rendered against him in the
inferior court.
Certiorari may apply when the administrative or executive authority fails to observe
their duty to act fairly with respect to the administrative functions. The writ of
Certiorari may also be issued against a subordinate tribunal even if the decision
impugned is pronounced. A leading case of Ryots of Garabandho v. Zamindar of
Parlakimedi38 , was the first decision on the writ of Certiorari- "The ancient writ of
certiorari in England is an original writ which may issue out of a superior Court
requiring that the record of the proceedings in some cause or matter pending before
an inferior Court should be transmitted into the superior Court to be there dealt with.
The writ is so named because, in its original Latin form, it required that the King
should "be certified" of the proceedings to be investigated, and the object is to secure
by the exercise of the authority of a superior Court, that the jurisdiction of the inferior
tribunal should be properly exercised. This writ does not issue to correct purely
executive acts, but, on the other hand, its application is not narrowly limited to inferior
"Courts" in the strictest sense. Broadly speaking, it may be said that if the act done by
the inferior body is a judicial act, as distinguished from being a ministerial act,
certiorari will lie. The remedy, in point of principle, is derived from the superintending
authority which the Sovereign's Superior Courts, and in particular the Court of King's
Bench, possess and exercise over inferior jurisdictions. This principle has been
transplanted to other parts of the King's dominions, and operates, within certain
limits, in British India."
in Hari Vishnu Kamath Vs. Ahmad Ishaque 1955-I S 1104 : ((s) AIR 1955 SC 233) and
the following four propositions were laid down :-
(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the
exercise of its undoubted jurisdiction, as when it decides without giving an opportunity
to the parties to be heard, or violates the principles of natural justice;
(3) The court issuing a writ of certiorari acts in exercise of a supervisory and
not appellate jurisdiction. One consequence of this is that the court will not review
findings of fact reached by the inferior court or tribunal, even if they be erroneous.
(4) An error in the decision or determination itself may also be amenable to a writ of
certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it
is based on clear ignorance or disregard of the provisions of law. In other words, it is a
patent error which can be corrected by certiorari but not a mere wrong decision."
PROHIBITION
Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'.
This writ is issued when a lower court or a body tries to transgress the limits or powers
vested in it. It is a writ issued by a superior court to lower court or a tribunal
forbidding it to perform an act outside its jurisdiction. After the issue of this writ,
proceedings in the lower court come to a stop.
A writ of prohibition is issued primarily to prevent an inferior court from exceeding its
jurisdiction, or acting contrary to the rule of natural justice, for example, to restrain a
Judge from hearing a case in which he is personally interested.
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.
-There is an error of law apparent on the face of the record in the impugned decision
of the body or
-the findings of fact reached by the inferior court are based on no evidence or
-it proceeds to act under a law which is itself invalid, ultra vires or unconstitutional or
The writ of certiorari can be issued by the Supreme Court or any High Court for
quashing the order already passed by an inferior court. In other words, while the
prohibition is available at the earlier stage, certiorari is available on similar grounds at
a later stage. It can also be said that the writ of prohibition is available during the
tendency of proceedings before a sub-ordinate court, certiorari can be resorted to only
after the order or decision has been announced. There are several conditions
necessary for the issue of writ of certiorari, which are as under:
41 UP Sales tax service assn. v. taxation bar assn. 1995 5 SCC 716
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(a) There should be court, tribunal or an officer having legal authority to determine
the question of deciding fundamental rights with a duty to act judicially.
(b) Such a court, tribunal or officer must have passed an order acting without
jurisdiction or in excess of the judicial authority vested by law in such court, tribunal
or law. The order could also be against the principle of natural justice or it could
contain an error of judgment in appreciating the facts of the case.
QUO WARRANTO
The word Quo-Warranto literally means "by what warrant?" It is a writ issued with a
view to restraining a person from acting in a public office to which he is not entitled.
The writ of Quo- warranto is used to prevent illegal assumption of any public office or
usurpation of any public office by anybody.
The meaning of the term Quo Warranto is by what authority. The writ of quo
warranto may be issued against a person holding a public office or governmental
privilege. The issue of summon is followed by legal proceedings, during which an
individuals right to hold an office or governmental privilege is challenged.
The writ requires the concerned person to explain to the Court by what authority he
holds the office. If a person has usurped a public office, the Court may direct him not
to carry out any activities in the office or may announce the office to be vacant. The
writ is issued by the Court after reviewing the circumstances of the case. There are a
few conditions which must be fulfilled for the grant of the writ of quo warranto India:
The concerned office must be a government unit or public office which performs public
duties. Examples of such office members are advocate general, university officials,
members of a municipal board. The public office must have a real existence. It should
be permanent and cannot be terminated. A person against whom the writ of quo
warranto is issued must have the real possession of the public office. The writ shall be
issued only when the public office is held by a particular person in an illegal manner
the hearing, the respondent must cease to exercise the power. If the power is to hold
an office, he must vacate the office.
The writ is unlike a petition or motion to show cause, because the burden of proof is
on the respondent, not on the demandant.
HABEAS CORPUS
It is a Latin term which literally means to have the body of. It is basically an order of
court to person who has detained another to produce latter before the court, to check
cause and legality of detention. So this writ under article 32 is a powerful measure
against arbitrary detention either by private individuals or executive.
a) detention is lawful
The history of this powerful writ appears to be traced to Anglo-Saxon common law
roots; its precise mention occurring in the Magna Carta or The Great Charter of the
Liberties of England in 1215. The oblique reference states no free man shall be
taken or imprisoned or disseised or exiled or in any way destroyed except by the
lawful judgment of their peers or by the law of the land. The right to invoke this writ
lies with the person detained or another person on his behalf to move to the court to
object to the detainment. The person himself, or his representative, must prove that
the authority/court ordering the detainment has made a factual or legal error. Clearly,
the writ of Habeas Corpus remains the most powerful process by which any citizen
may question the correctness of restraint on individual liberty. Article 21 of the Indian
constitution guarantees the right to life and liberty to each and every citizen of the
nation. Right to move to the court to enforce this article was suspended under Article
359 of the constitution when internal emergency was imposed (1975-77). The
logical question that followed whether the writ of Habeas Corpus was enforceable in
such a situation? The landmark Supreme Court case or the Habeas Corpus case
attempted to answer this question, and was the reason for the 44th Constitutional
Amendment in 1978. This amendment, passed unanimously, ensure that Article 21
cannot be suspended even during an Emergency.44
The writ of habeas corpus is issued to a detaining authority, ordering the detainer to
produce the detained person in the issuing court, along with the cause of his or her
detention. If the detention is found to be illegal, the court issues an order to set the
person free. A remedy available to any person detained or imprisoned, not to hear and
43 http://indiaopines.com/a-d-m-jabalpur-shukla-emergency-1975-77/
44 http://indiaopines.com/a-d-m-jabalpur-shukla-emergency-1975-77/
P a g e | 16
determine the case upon the evidence, but to immediately and in a summary way test
the validity of the person's detention or imprisonment.
The Indian judiciary in a number of cases has effectively resorted to the writ of habeas
corpus mainly in order to secure release of a person from illegal detention. Personal
liberty has always been considered a cherished value in India & the writ of habeas
corpus protects that personal liberty in case of illegal arrest or detention. As personal
liberty is so important, the judiciary has dispensed with the traditional doctrine of
locus standi. Hence 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 judiciary while going one step further,
has also dispensed with strict rules of pleadings. The increasing scope of writ of
habeas corpus may be explained with the help of following cases decided by the
Indian judiciary.
In Kanu Sanyal v. District Magistrate45, while enunciating the real scope of writ of
habeas corpus, the Supreme Court opined that while dealing with a petition for writ of
habeas corpus, the court may examine the legality of the detention without requiring
the person detained to be produced before it.
In Nilabati Behera v. State of Orissa47, the Orissa police took away the son of the
petitioner for the purposes of interrogation & he could not be traced. During the
pendency of the petition, his dead body was found on railway track The petitioner was
awarded compensation of Rs. 1, 50, 000.
In Malkiat Singh v. State of U.P 48, the son of a person was allegedly kept in illegal
custody by the police officers. It was established that the son was killed in an
encounter with the police. The court awarded Rs. 5,00,000 as compensation to the
petitioner.
Conclusion: In this manner, writ of habeas corpus has been used effectively by the
judiciary for protecting personal liberty by securing the release of a person from illegal
custody.
CONCLUSION
Access to courts has been made much easier through the introduction of Public
Interest Litigation. Locus standi has been made flexible thereby making access to
courts much easier. Government would now be under close scrutiny as various
remedies are provided under Article 32 to ensure that fundamental rights are not
infringed. It is a part of the basic structure of our Constitution. The sole object of the
Article 32 of the Constitution of India is the enforcement of the fundamental rights
guaranteed under Part III of the Constitution of India and the purpose has been
fulfilled by courts and their decisions. Though mistakes have been committed by court
in interpreting this article (habeas corpus case) it has been corrected accordingly by
constitutional amendment. Hence, it can be said that the intention of Constitution in
framing this articlemakers has been achieved by courts through its decisions.
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BIBLIOGRAPHY
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