Page |1

RESEARCH PROJECT ON

ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

SUBMITTED TO

CENTRAL UNIVERSITY OF SOUTH BIHAR

In Fulfillment of the Requirements for Internal Component in

CONSTITUTIONAL LAW
By
RAJEEV ANANTA
(CUSB-)

Under the guidance & Supervision of

Dr. POONAM
 Page |2

DECLARATION

I,RAJEEV ANANTA hereby declare that the project entitled

ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES
submitted to the CENTRAL UNIVERSITY OF SOUTH BIHAR, is a
record of bonafide and independent work done by me under
the supervision and guidance of Professor of Constitutional
Law, Dr.POONAM, Faculty of Department of Constitution,
CENTRAL UNIVERSITY OF SOUTH BIHAR, GAYA.
All information furnished in the project for scrutiny is the true to
the best of my knowledge. This project consists of secondary
data.

RAJEEV ANANTA
SESSION 2016-17
10.04.17
 Page |3

ACKNOWLEDGEMENTS

At the outset, I take this opportunity to thank my Professor Dr. Poonam

from the bottom of my heart who have been of immense help during
moments of anxiety and torpidity while the project was taking its crucial
shape.
Secondly, I convey my deepest regards to the administrative staff of CUSB
who held the project in high esteem by providing reliable information in the
form of library infrastructure and database connections in times of need.
Thirdly, the contribution made by my parents and friends by foregoing their
precious time is unforgettable and highly solicited. Their valuable advice
and timely supervision paved the way for the successful completion of this
project.
Words arent sufficient to acknowledge the tremendous contributions of
various people involved in this project- as I know Words are Poor
Comforters. I once again wholeheartedly and earnestly thank all the people
who were involved directly or indirectly during this project making which
helped me to come out with flying colours.
 Page |4

CONTENTS

LIST OF CASES REFFERED6

INTRODUCTION7

ARTICLE 32 AND ITS SCOPE8

MANDAMUS...10

CERTIORARI.14

PROHIBITION16

WRITS OF PROHIBITION AND CERTIORARI..17

QUO WARRANTO.18

HABEAS CORPUS.19

CONCLUSION21

BIBLIOGRAPHY22
 Page |5

LIST OF CASES REFFERED

State of Bombay v. Hospital Mazdoor Subba

Juggilal Kamalapat v. The Collector of Bombay
Shantabai v. Bombay
Calcutta Gas Co. v. State of W.B.
Rampal v. State of Raj.
Jiwat Bai & Sons v. G.C. Batra.
Prakaslt v. Principal, A.l.R.
Kalyan Singh v. State of U.P.
Guruswami v. State of Mysore
Bengal Immunity Co. Ltd. vd. State of Bihar
Choteylal v. State of U.P.
Shankar v. Returning Officer
State of Bombay v. United Motors.
The Praga Toots Corporation v. C.V. immanuel
State of Bombay v. United Motors
Veerappa Pillaiv. Raman Rtimin Ltd..
S.I. Syndicate v. Union of India
Amrit Lal v. Colllector, C.E.C. Revenue
The Stateman v. Fact finding Committee
Ryots of Garabandho v. Zamindar of Parlakimed
Hari Vishnu Kamath Vs. Ahmad Ishaque
Sonu Sampat v. Jalgaon Borough Municipality
Kanu Sanyal v. District Magistrate
Barse v. State of Maharashtra
Nilabati Behera v. State of Orissa
Malkiat Singh v. State of U.P
STO V. Shiv Ratan AIR
UP Sales tax service assn. v. taxation bar assn
Syed Yakoob v. K.S.Radhakrishnan
 Page |6

INTRODUCTION
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.

There are 5 kinds of writs

- Mandamus

- Certiorari

- Prohibition

- Quo warranto

- Habeas corpus
 Page |7

Article 32 in The Constitution Of India

32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed.
(2) 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
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 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 ).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.

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 protector3 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

Any person complaining of infraction of any fundamental right guaranteed by the constitution is guaranteed
to move to the Supreme Court but the rights that could be involved under article 32 must ordinarily be rights
of person who complains infraction of such rights and approaches the court for relief , as to the nature of
rights that is stated to have been infringed.5

PUBLIC INTEREST LITIGATION

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

1
Kochunni v. State of Madras AIR 1959 SC 725
2
P.N.Kumar v. municipal corp. of Delhi 1987 4 SCC 609
3
Rashid Ahmed v. The Municipal Board, Kairana, AIR 1950 SC 124
4
Ramesh Thapar v. State Of Madras AIR 1950 SC 124
5
Narinderjit Singh Sahni v. UOI 2002 2 SCC 708
 Page |8

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

6
Kasturi Lal Ralia Ram JAIN V. State of UP AIR 1965 SC 1039
7
Sachdev v. UOI 1991 1 SCC 605
8
Rameshwar Prasad v. UOI AIR 2006 SC 980
 Page |9

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

Mandamus according to Black's law dictionary, Ninth Edition

"A writ issued by a court to compel performance of a particular act by lower court or a governmental
officer or body, to correct a prior action or failure to act."

The order of mandamus is of a most extensive remedial nature, and is in form, a command issuing from the
High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do
some particular thing therein specified which appertains to his or their office and is in nature of a public
duty. Mandamus is not a writ of right, it is not consequently granted of course, but only at the discretion of
the court to whom the application for it is made; and this discretion is not exercised in favour of the
applicant, unless some just and useful purpose may be answered by 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 in Indian Law prior to the Constitution

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.

Interpretation of Public right and mandamus

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

9
R. v. Baker (1762) 3 Burr. 1265, 1267.
10
Syndicate v. Union of India. A.I.R. 1975 S.C. 460
11
Binny Limited vs. V. Sadasivan 2005 AIR (SC) 3202
12
Dr. Rai Shivendra Bahadur v, Governing Body of the Nalunda College, A.I.R. 1962 S.C. 1210.
13
Controller of Monghyr v. Keshav Prasad, A.I.R. 1962 S.C. 1694
 P a g e | 10

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 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 power20. 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

14
Carlsbad Mineral Water Mfg. Co. v. H.M. Jagtiani, A.I.R. 1952 Cal. 315.
15
Chintaman Rao v. State of M.P., A.l.R. 1951 S.C. 118
16
State of Bombay v. Hospital Mazdoor Subba, A.l.R. I960 S.C. 610
17
Juggilal Kamalapat v. The Collector of Bombay, A.l.R. 1946 Bom. 280.
18
Shantabai v. Bombay, A.l.R. 1958 S.C. 532
19
Calcutta Gas Co. v. State of W.B., A.l.R. 1962 S.C. 1044
20
Rampal v. State of Raj. AIR 1981 SC 121
21
Jiwat Bai & Sons v. G.C. Batra. A.l.R. 1976 Delhi 310
22
Prakaslt v. Principal, A.l.R. 1965 M.P. 217
23
Kalyan Singh v. State of U.P., A.I.R. 1962 S.C. 1153
24
Guruswami v. State of Mysore, A.I.R. 1954 S.C. 592
25
Bengal Immunity Co. Ltd. vd. State of Bihar, A.I.R. 1955 S.C. 661
 P a g e | 11

Against whom Mandamus will not be issued

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

Alternative Remedy: A Bar to Mandamus

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.

Demand and refusal

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 India 35, the Supreme
Court has adopted the following statement of law in this regard. :

26
Article 361
27
Articles 300 and 361
28
Article 122 (2) and 212 (2)
29
Choteylal v. State of U.P., A.l.R. 1951 All 228
30
Shankar v. Returning Officer, A.I.R. 1952 Bom 277
31
State of Bombay v. United Motors. A.I.R 1953 S.C. 252
32
The Praga Toots Corporation v. C.V. immanuel, A.I.R. 1969 S.C 1306
33
State of Bombay v. United Motors, A.I.R. 1951 S.C. 252
34
Veerappa Pillaiv. Raman Rtimin Ltd.. A.I.R. 1952 S.C. 192
35
AIR 1975 SC 460
 P a g e | 12

"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.

36
Amrit Lal v. Colllector, C.E.C. Revenue, A.I.R. 1975 S.C. 538
37
The Stateman v. Fact finding Committee, A.I.R. 1975 Cal. 14
 P a g e | 13

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 :-

"(1) Certiorari will be issued for correcting errors of jurisdiction;

(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."

Certiorari jurisdiction though available is not to be exercised as a matter of course. The High Court would be
justified in refusing the writ of certiorari if no failure of justice has been occasioned. In exercising the

38
AIR 1943 PC 164
 P a g e | 14

certiorari jurisdiction the procedure ordinarily followed by the High Court is to command the inferior court
or tribunal to certify its record or proceedings to the High Court for its inspection so as to enable the High
Court to determine whether on the face of the record the inferior court has committed any of the preceding
errors occasioning failure of justice.
 P a g e | 15

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 term inferior courts comprehends special tribunals, commissions, magistrates and officers who
exercise judicial powers, affecting the property or rights of the citizen and act in a summary way or in a new
course different from the common law. It is well established that the writ lies only against a body exercising
public functions of a judicial or quasi- judicial character and cannot in the nature of things be utilised to
restrain legislative powers.

These Writs are issued as alternative or peremptory. An alternative Writ directs the recipient to
immediately act, or desist, and Show Cause why the directive should not be made permanent. A
peremptory Writ directs the recipient to immediately act, or desist, and return the Writ, with certification
of its compliance, within a certain time.

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.

In Syed Yakoob v. K.S.Radhakrishnan39 The writ of prohibition or certiorari can be issued on the following
grounds:

-When the body concerned proceeds to act without, or in excess of jurisdiction, or

-fails to exercise its jurisdiction40 or

-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 against principles of natural justice or

-it proceeds to act under a law which is itself invalid, ultra vires or unconstitutional or

-it proceeds to act in contravention of fundamental rights41

39
AIR 1964 SC 477
40
STO V. Shiv Ratan AIR 1966 SC 142
41
UP Sales tax service assn. v. taxation bar assn. 1995 5 SCC 716
 P a g e | 16

Writs of Prohibition and Certiorari

The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, prohibiting
the latter to continue proceedings in a particular case, where it has no legal jurisdiction of trial. While the
writ of mandamus commands doing of particular thing, the writ of prohibition is essentially addressed to a
subordinate court commanding inactivity. Writ of prohibition is, thus, not available against a public officer
not vested with judicial or quasi-judicial powers. The Supreme Court can issue this writ only where a
fundamental right is affected.

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:

(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.
 P a g e | 17

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

In Sonu Sampat v. Jalgaon Borough Municipality42 , If the appointment of an officer is illegal, everyday
that he acts in that office, a fresh cause of action arises and there can be therefore no question of delay in
presenting a petition for quo warranto in which his very, right to act in such a responsible post has been
questioned.

A writ of quo warranto is not a petition, but a notice of demand, issued by a demandant, to a respondent
claiming some delegated power, and filed with a court of competent jurisdiction, to hold a hearing within 3
to 20 days, depending on the distance of the respondent to the court, to present proof of his authority to
execute his claimed powers. If the court finds the proof insufficient, or if the court fails to hold 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.

42
(1957) 59 BOMLR 1088
 P a g e | 18

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.

However Habeas Corpus under Article 32 cant be issued if

a) detention is lawful

b) proceeding is for contempt of a legislation or court order and

c) detention is outside jurisdiction of court.43

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
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.

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 | 19

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 Sheela Barse v. State of Maharashtra46, while relaxing the traditional doctrine of locus standi, the apex court held
that if the detained person is unable to pray for the writ of habeas corpus, someone else may pray for such writ on
his behalf.

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.

45
AIR 1973 SC 2684
46
AIR 1983 SC 378
47
AIR 1993 SC 1960
48
AIR 1999 SC 1522
 P a g e | 20

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.
 P a g e | 21

BIBLIOGRAPHY
WEBSITES REFFERED:
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-41da-aa0b-
b4201b77a8bd&txtsearch=Subject:%20Jurisprudence
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=deaf8251-5a4a-4c50-b8e1-
7be4929c7b29&txtsearch=Subject:%20Constitution
http://www.jstor.org/discover/10.2307/4408327?uid=2134&uid=2478015017&uid=2&uid=70&uid=3&uid=2
478015007&uid=60&sid=21104966304703
http://supremecourtofindia.nic.in/scr/2012_v10_piv.pdf
http://indiankanoon.org/search/?formInput=writ%20of%20quo%20warranto+doctypes:supremecourt

BOOKS REFFERED:

M.P.Jain- Indian Constitutional Law, 7th edition

Constitutional Law of India- Dr J N Pandey, 51st edition