Arts32 to 35: - RIGHT TO

CONSTITUTIONAL REMEDIES
Introduction: - It is true that a
declaration of fundamental rights is
meaningless unless there is effective
machinery for the enforcement of the
rights. If there is no remedy there is
no right at all. It was, therefore, in the
fitness of the things that our
Constitution-makers having
incorporated a long list of
fundamental rights have also provided
for an effective remedy for the
enforcement of these rights under
Art32 of the Constitution. Art32 is
itself a fundamental right. Art226 also
empowers all the High Courts to issue
the writs for the enforcement of
fundamental rights.
Art32 (1) guarantees the right to
move the Supreme Court by
appropriate proceedings for the
enforcement of the fundamental rights
conferred by Part III of the
Constitution.
Clause (2) of Art32 confers power on
the Supreme Court to issue
appropriate directions or orders or
writs, including writs in the nature of
habeas corpus, mandamus,
prohibition, quo-warranto and
certiorari for the enforcement of any
of the rights conferred by Part III of
the Constitution.
Under clause (3) of Art32 Parliament
may by law empower any other court
to exercise within the local limits of its
jurisdiction all or of the powers
exercisable by the Supreme Court
under clause (2).
Clause (4) says that the right
guaranteed by Article 32 shall not be
suspended except as otherwise
provided for the Constitution.
Art32 thus provides for an expeditious
and inexpensive remedy for the
protection of fundamental rights from
legislative and executive interference.
Who can apply: - Locus Standi: - The
traditional rule is that the right to
move the Supreme Court is only
available to those whose fundamental
rights are infringed. The power vested
in the Supreme Court can only be
exercised for the enforcement of
fundamental rights. The writ under
which the remedy is asked under
Art32 must be correlated to one of the
fundamental rights sought to be
enforced. The remedy must be sought
through appropriate proceedings.
Public Interest Litigation: - The above
traditional rule of Locus standi that a
petition under Art32 can only be filed
by a person whose fundamental right
is infringed has now been
considerably relaxed by the Supreme
Court in its recent rulings. The Court
now permits public interest litigations
or social interest litigations at the
instance of public spirited citizens
for the enforcement of constitutional
and other legal rights of any person or
group of persons who because of their
poverty or socially or economically
disadvantaged position are unable to
approach the Court for relief.
However, the Court said that it would
have to be decided from case to case
as to whether the person approaching
the court for relief has sufficient
interest and has not acted with mala
fide or political motives.
Abuse of PIL: - Guidelines: While
expanding the scope of the Locus
standi rules his Lordship Bhagwati, J.
(as he then was) expressed a note of
caution also. He observed: But we
must be careful to see that the
member of the public, who
approaches the court in case of this
kind, is acting bona fide and not for
personal gain or private profit or
political motivation or other oblique
consideration. The court must not
allow its process to be abused by
politicians and others.
The Supreme Court as protector and
guarantor of Fundamental Rights:-
Under clause (2) of Art32 the Supreme
Court is empowered to issue
appropriate directions, orders or writs,
including writs in the nature of habeas
corpus, mandamus, prohibition, quo-
warranto and certiorari for the
enforcement of any fundamental
rights guaranteed by Part III of the
constitution. By this Article the
Supreme Court has been constituted
as a protector and guarantor of
fundamental rights conferred by Part
III. Once a citizen has shown that
there is infringement of his
fundamental right the court cannot
refuse to entertain petitions seeking
enforcement of fundamental rights.
In discharging the duties assigned to
protect fundamental rights the
Supreme Court in the words of
Patanjali Sastri, J., has to play a role of
a sentinel on the qui vive. Again, in
Daryao Vs State of U.P the Supreme
Court took it as its solemn duty to
protect the fundamental right
zealously and vigilantly.
Scope of clause (2) of Art32: - The
language used in Art32 (2) is very
wide. The power of the Supreme Court
is not confined to issuing only writs in
the nature of habeas corpus,
mandamus, prohibition, quo-warranto
and certiorari.S but any direction or
order or writ whichever is appropriate
to enforce the fundamental rights, nor
it is bound to follow all the procedural
technicalities.
Alternative Remedy: - In K. K. Kochuni
Vs State of Madras, the Court held
that Art32 itself being a fundamental
right the Court will give relief
notwithstanding the existence of an
alternative remedy. The Courts power
under Art32 (2) is wide enough to
order the taking of evidence, if
necessary on disputed questions of
fact.
Delay or Laches: - It is fundamental
principle of administration of justice
that the Courts will help those who are
vigilant about their rights and who do
not sleep on their right. The Courts
will refuse to exercise their jurisdiction
in favour of a party who comes to the
Court after a considerable delay and is
otherwise guilty of laches. Thus the
remedy under Art32 must usually be
sought within a reasonable time.
There is no prescribed period of
limitation of 90 days (as provided
under the Limitation Act) for filing of
petitions under Art32.
Res-Judicata: - Res Judicata is a rule of
public policy that there should be
finality to binding decisions of courts
of competent jurisdiction and those
parties to the litigation should not be
vexed with the same litigation again.
The principle is embodied in Section
11 of the Code of Civil Procedure. If a
question has been once decided by
the Supreme Court under Art32 the
same question cannot be re-opened,
again under Art226.
In Daryao Vs State of U.P it was held
that where the matter had been
heard and decided by the High
Court under Art226 the writ under
Art32 is barred by the rule of res
judicata and could not be entertained.
But there is an important exception to
this rule of res judicata. In Gulam
Sarvar v. Union of India, the Court
held that the rule of res judicata is not
applicable in the writ of habeas corpus
and where the petitioner has been
refused a writ from the High Court he
may file a petition for the same writ
under Art32.
Clause (3): - Under clause (3)
Parliament is authorized by law to
empower any other Court to exercise,
within the local limits of its
jurisdiction, any of the powers
exercisable by the Supreme Court
under clause (2). The words any
other court can only mean any other
court other than the High Court
because High Courts have already
been vested with such power under
Art226.
Clause (4): - According to this clause
the right to move the Supreme Court
for the enforcement of the
fundamental right cannot be
suspended except as otherwise
provided by this Constitution. There is
only one situation when this right can
be suspended.
When a proclamation of emergency
under Art352 is declared, the
President is empowered under Art359
to declare that the right to move any
court for the enforcement of such
right conferred by Part III may remain
suspended for the period during which
the proclamation of emergency is in
operation.
WRITS
1. Habeas Corpus
Habeas Corpus is a Latin term
which literally means you may have
the body. The writ is issued in form of
an order calling upon a person by
whom another person is detained to
bring that person before the Court and
to let the Court know by what
authority he has detained that person.
If the cause shown discloses that
detained person has been detained
illegally the Court will order that he be
released Thus the main object of the
writ is to give quick and immediate
remedy to a person who is unlawfully
detained by the person whether in
prison or private custody.
When it will lie: - The writ of habeas
corpus will lie if the power of
detention vested in an authority was
exercised mala fide and is made in
collateral or ulterior purposes. But if
the detention is justified the High
Court will not grant the writ of habeas
corpus. If the following conditions are
satisfied the detention is illegal: (a) if
the detention is made in accordance
with the procedure established by law.
The law must be valid law and the
procedure must be strictly followed.
(Art21).
(b) The detention is lawful if the
conditions laid down in Art22 are
complied with.
The detention becomes unlawful if a
person who is arrested is not
produced before the Magistrate within
24 hours of his arrest and he will be
entitled to be released on the writ of
habeas corpus.
The legislature which deprives a
person of his personal liberty by law
must be competent to make that law.
If the law is unlawful the detention will
be unlawful.
An appeal lies against an order of the
High Court granting or rejecting the
application for issue of the habeas
corpus under Arts 132, 133, 134 or
136.
2. Mandamus
The word mandamus means the
order. The writ of mandamus is thus
an order by the superior court
commanding a person or a public
authority (including the Government
and public corporation) to do or
forbear to do something in the nature
of public duty or in certain cases of a
statutory duty. For instance, a
licensing officer is under a duty to
issue a licence to an applicant who
fulfils all the conditions laid down for
the issue of such licence. But despite
the fulfilment of such conditions if the
officer or the authority concerned
refuses or fails to issue the licence,
the aggrieved person has a right to
seek the remedy through a writ of
mandamus.
When it will lie: - Thus the writ or
order in the nature of mandamus
would he issued when there is a
failure to perform mandatory duty. But
even in cases of alleged breaches of
mandatory duty the party must show
that he has made a distinct demand
to enforce that duty and the demand
was met with refusal.
(1) Thus a writ of mandamus can only
be granted when there is in the
applicant a right to compel the
performance of some duty cast upon
the authority. The duty sought to be
enforced must be a public duty, that
is, duty cast by law. A private right
cannot be enforced by the writ of
mandamus.
(2) Thus writ of mandamus can be
issued to public authority to restrain it
from acting under a law which has
been declared unconstitutional.
Thus writ of mandamus can be
granted only in cases where there is a
statutory duty imposed upon the
officer concerned, and there is a
failure on the part of that officer to
discharge the statutory obligation. The
chief function of a writ is to compel
performance of public duties
prescribed by statute and to keep
subordinate tribunal and officers
exercising public functions within the
limits of their jurisdiction. It follows,
therefore, that an order of mandamus
may be issued to compel the
authorities to do something which
imposes a legal duty and aggrieved
party has a legal right under the
statute to enforce its performance.
The High Courts have the power to
issue a writ of mandamus where the
government or a public authority has
failed to exercise or has wrongly
exercised the discretion conferred
upon it by a statute or a rule or a
policy decision of the Government or
has exercised such discretion mala
fide or on irrelevant considerations or
by ignoring the relevant
considerations and materials or in
such a manner as to frustrate the
object of conferring such discretion of
the policy for implementing such
discretion.
When it will not lie: - A writ of
mandamus will not be granted in the
following circumstances:
(1) When the duty is merely
discretionary in nature the writ of
mandamus will not lie.
(2) A writ of mandamus does not lie
against a private individual or any
private organization because they are
not entrusted with a public dUly.
(3) A writ of mandamus cannot be
granted to enforce an obligation
arising out of contract.
3. Prohibition
A writ of prohibition is issued primarily
to prevent an inferior court from
exceeding its jurisdiction, or acting
contrary to the rules of natural justice.
It is issued by a Superior Court to
inferior courts for the purpose of
preventing inferior court from
usurping a jurisdiction with which it
was not legally vested, or in other
words to compel inferior courts to
keep within the limits of their
jurisdiction. Thus the writ is issued in
both cases where there is excess of
jurisdiction and where there is
absence of jurisdiction.
The difference between the two writs
was, explained by the Supreme Court
in the following words:
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 on that, an order will
be issued forbidding the inferior court
from continuing the proceedings.
On the other hand, if the court hears
the cause or matter and gives a
decision, the party aggrieved would
have to move to 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 finally been
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 quashing what had
already been decided.
Thus the object of the writ of
prohibition is in short prevention
rather than cure, while certiorari is
used as a cure.
Where the defect in the jurisdiction is
not apparent, where the appellant is
guilty of suppression of material fact,
or where the writ would be futile, the
court may refuse to grant the writ. But
it can be granted almost as a matter
of right where it is shown that inferior
tribunal is acting in excess of its
jurisdiction.
Prohibition, like certiorari, lies only
against judicial and quasi-judicial
bodies. It does not lie against a public
authority which acts purely in an
executive or administrative capacity,
nor to a legislative body.
4. Certiorari
A writ of certiorari is issued by a
Superior Court (Supreme Court and
High Courts) to an inferior court or
body exercising judicial or quasi-
judicial functions to remove a suit
from such inferior court or body and
adjudicate upon the validity of the
proceedings or body exercising judicial
or quasi-judicial functions. It may be
used before the trial to prevent an
excess or abuse of jurisdiction and
remove the case for trial to higher
Court. It is invokcd also after trial to
quash an order which has been made
without jurisdiction or in violation of
the rules of natural justice.
Grounds on which writ can be issued: -
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 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.
5. Quo warranto
The words quo warranto means
what is your authority. By this writ a
holder of an office is called upon to
show to the court under what
authority he holds the office. The
object of the writ of quo warranto is to
prevent a person to hold an office
which he is not legally entitled to hold.
If the inquiry leads to the finding that
the holder of the office has no valid
title to it, the Court may pass an order
preventing the holder to continue in
office and may also declare the office
vacant.
If the holder of a public office was
initially disqualified to hold that office,
the writ of quo warranto would not be
issued if at a subsequent stage that
disqualification was removed and after
the removal of the disqualification the
incumbent concerned could have
been appointed on the same post.
Who can apply: - A writ of quo
warranto can be claimed by a person
if he satisfies the Court that: -
(1) The office in question is a public
office; and
(2) It is held by a person without legal
authority.