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Introduction................................................................................ 3
Nature of Writ Jurisdiction ......................................................... 5
1. Habeas Corpus..................................................................... 5
2. Quo Warranto ...................................................................... 6
3. Mandamus ........................................................................... 7
4. Certiorari ............................................................................. 8
5. Prohibition ........................................................................... 9
Writ Jurisdiction under article 32 and 226: A comparative
analysis .................................................................................... 10
Public Interest litigation: Abuse of the process ........................ 11
Conclusion ............................................................................... 15



THE Constitution of India has engrafted several fundamental rights in Chapter III.
But, the writers of the Constitution knew well that a mere declaration of such rights
hardly ensures their practical existence in political life. In reality, rights must be
enforceable by the judiciary, otherwise they are sure to remain as mere 'paper- rights'.
This is why, they provided for a guaranteed remedy in case of infringement of such
rights. Constitutionally, they relied upon the superior courts - particularly the
Supreme Court - for undertaking this stupendous responsibility. A mere enumeration
of rights, even in the most elaborate and meticulously worded form, is not enough.
What is needed, in addition to all this, is the provision for their enforcement 1. So, if
and when a person feels that he is unduly deprived of any of the fundamental rights,
he can, under Article 32 of our Constitution, move the Supreme Court for a legal
remedy. In this sense, this article is, really, novel one and as B P Gajendragadkar2, a
former chief justice of India, has observed, it is "a very distinguishing feature of the
Constitution". According to him, it is the "cornerstone of the democratic edifice raised
by the Constitution". This observation is true as far as it goes. Article 32 has four

(i) First, under Article 32, an aggrieved person can move the Supreme Court for a
legal remedy in case of an alleged infringing of his Fundamental Right. In such case,
it is the constitutional duty of the apex court to look into the matter and to provide
necessary redress to the affected person.

(ii) Secondly, in such case, the Supreme Court protects the fundamental rights with
the help of the constitutional weapon of 'writs'. So, when an aggrieved person eagerly
moves the Supreme Court under Article 32, it has to protect the rights by issuing an
appropriate writ for the restoration and maintenance of the rights unduly curtailed by
any other person or authority.

(iii) Thirdly, the parliament may, by law, empower any other court with such
authority so that it too can act as the protector and guarantor of such rights.

J C Johari, Indian Government and Politics, p 109
DD Basu, Constitution of India, pp 60-62


As it is often observed, a right without remedy is a meaningless formality. So, very

wisely, the founding fathers have engrafted Article 32 by which the individual may
secure a guaranteed remedy in case of the infringement of fundamental rights. Article
32, with its first three clauses, has necessarily done the job. As M V Pylee rightly
claims, "the first three sections of the article, taken together, make fundamental rights
under the Constitution real and, as such, they form the crowing part of the entire

(iv) Fourthly, clause (4) of the Constitution, however, mentions an exception. When
the president proclaims an emergency under Article 352, the provision for guaranteed
remedy of fundamental rights remains suspended. In such times, the president may,
under Article 358, make a separate proclamation by which Article 32 remains
suspended3. In other words, an individual cannot, during such emergency, move the
Supreme Court, even if he feels that he has been unduly deprived of the Fundamental
Right guaranteed by the Constitution.

Article 32 guarantees the right to move the Supreme Court by “appropriate

proceedings” for the enforcement of fundamental rights conferred by Part-III. This
Article, simple in the language used, is perhaps the most important of all the Articles
in Part-III. It has been held to be part of the basic structure of the Constitution4. No
legislative enactment can take away this right. Any law which seeks to nullify or
curtail the powers of the court under Article 32 will be void5.

The right to move the Supreme Court for enforcement of fundamental rights is itself a
fundamental right 6 . Gajendragadkar J. referred to earlier cases and observed that
Article 32 could be described as the cornerstone of the democratic edifice raised by
the Constitution 7 . Article 32 is not directly concerned with determining the
constitutional validity of a legislative enactment. It only aims at enforcing
fundamental rights guaranteed by the Constitution. The Supreme Court can also issue
directions to the legislature and the executive to perform their obligatory duties.

H H Das, Principles of Indian Constitution, p 136
Chandrakumar L. v. Union of India., AIR 1997 SC 1125 : (1997) 3 SCC 261.
Gopalan A.K. v. State of Madras, AIR 1950 SC 27 : 1950 SCC 88; Tilok Chand Moti Chand v. H.B.
Munshi, AIR 1970 SC 898 : (1969) 1 SCC 110.
Kochunni K.K. v. State of Madras, AIR 1959 SC 725 : 1959 Supp(2) SCR 316
Prem Chand Garg v. Excise Commissioner, Uttar Pradesh, AIR 1963 SC 996, 999 : 1963


Where a dispute cannot be resolved due to certain statutory limitations that affect two
or more States, the Supreme Court can always device an appropriate method to meet
the ends of justice. Appropriate directions can always be given to the concerned States
to submit to the jurisdiction of a particular designated court or tribunal which will
then decide the question regarding the true nature of the transaction after hearing all
the affected parties. The fact that the orders of certain authorities in (sales tax)
proceedings have become final may not stand in the way of the Supreme Court giving
appropriate directions under Articles 32, 136 or 142 8. But the Supreme Court cannot,
under Article 32, devise a pension plan or substitute service conditions in place of the
existing ones. The court will not issue directions to constitutional functionaries to
form an opinion about the suitability of a person for appointment as Judge of the
superior court9.

Nature of Writ Jurisdiction

There are five types of Writs as provided under Article 32 of the Constitution:

1. Habeas Corpus

 Meaning

It is one of the important writs for personal liberty which says “You have the Body”.
The main purpose of this writ is to seek relief from the unlawful detention of an
individual. It is for the protection of the individual from being harmed by the
administrative system and it is for safeguarding the freedom of the individual against
arbitrary state action which violates fundamental rights under articles 19, 21 & 22 of
the Constitution. This writ provides immediate relief in case of unlawful detention.

 When Issued?

Writ of Habeas Corpus is issued if an individual is kept in jail or under a private care
without any authority of law. A criminal who is convicted has the right to seek the
assistance of the court by filing an application for “writ of Habeas Corpus” if he
Ashok Leyland Ltd. v. Union of India, (1997) 9 SCC 10, 30 : (1997) 2 JT 666.
Mahajan R.K. v. Chief Justice, Himachal Pradesh High Court, 1995 Supp (3) SCC 65 : (1994) 73
ELT 521.


believes that he has been wrongfully imprisoned and the conditions in which he has
been held falls below minimum legal standards for human treatment. The court issues
an order against prison warden who is holding an individual in custody in order to
deliver that prisoner to the court so that a judge can decide whether or not the prisoner
is lawfully imprisoned and if not then whether he should be released from custody.

 Important judgments on Habeas Corpus

The first Habeas Corpus case of India was that in Kerala where it was filed by the
victims’ father as the victim P. Rajan who was a college student was arrested by the
Kerala police and being unable to bear the torture he died in police custody. So, his
father Mr T.V. Eachara Warrier filed a writ of Habeas Corpus and it was proved that
he died in police custody.

Then, in the case of ADM Jabalpur v. Shivakant Shukla10 which is also known as
the Habeas Corpus case, it was held that the writ of Habeas Corpus cannot be
suspended even during the emergency (Article 359).

While deciding whether Habeas Corpus writs are civil or criminal in nature, it was
held in Narayan v. Ishwarlal 11 that the court would rely on the way of the procedures
in which the locale has been executed.

2. Quo Warranto

 What does the writ of Quo Warranto mean?

Writ of Quo Warranto implies thereby “By what means”. This writ is invoked in cases
of public offices and it is issued to restrain persons from acting in public office to
which he is not entitled to. Although the term ‘office’ here is different from ‘seat’ in
legislature but still a writ of Quo Warranto can lie with respect to the post of Chief
Minister holding a office whereas a writ of quo warranto cannot be issued against a
Chief Minister, if the petitioner fails to show that the minister is not properly
appointed or that he is not qualified by law to hold the office. It cannot be issued

ADM Jabalpur v. Shivakant Shukla (1976)2 SCC 521
Narayan v. Ishwarlal AIR 1965 SC 1818


against an Administrator who is appointed by the government to manage Municipal

Corporation, after its dissolution. Appointment to public office can be challenged by
any person irrespective of the fact whether his fundamental or any legal right has been
infringed or not.

 The court issues the Writ of Quo Warranto in the following cases:

1. When the public office is in question and it is of a substantive nature. A

petition against a private corporation cannot be filed.
2. The office is created by the State or the Constitution.
3. The claim should be asserted on the office by the public servant i.e.

 Important Case Laws

In the case of Ashok Pandey v. Mayawati12, the writ of Quo Warranto was refused
against Ms Mayawati (CM) and other ministers of her cabinet even though they were
Rajya Sabha members.

3. Mandamus

 Writ of Mandamus

Writ of Mandamus means “We Command” in Latin. This writ is issued for the correct
performance of mandatory and purely ministerial duties and is issued by a superior
court to a lower court or government officer. However, this writ cannot be issued
against the President and the Governor. Its main purpose is to ensure that the powers
or duties are not misused by the administration or the executive and are fulfilled duly.
Also, it safeguards the public from the misuse of authority by the administrative
bodies. The mandamus is “neither a writ of course nor a writ of right but that it will be
granted if the duty is in nature of public duty and it especially affects the right of an
individual, provided there is no more appropriate remedy” 13. The person applying for

Ashok Pandey v. Mayawati AIR 2007 SC 2259
R.V. Dusheath (1950)2 All ER 741 at p. 743 per Lord Goodard C.J.


mandamus must be sure that he has the legal right to compel the opponent to do or
refrain from doing something.

 Conditions for issue of Mandamus

1. There must rest a legal right of the applicant for the performance of the
legal duty.
2. The nature of the duty must be public.
3. On the date of the petition, the right which is sought to be enforced must be
4. The writ of Mandamus is not issued for anticipatory injury.

 Important Judgements –

In Rashid Ahmad v. Municipal Board14, it was held that in relation to Fundamental

Rights the availability of alternative remedy cannot be an absolute bar for the issue of
writ though the fact may be taken into consideration.

4. Certiorari

 What does Writ of Certiorari mean?

Writ of Certiorari means to be certified. It is issued when there is a wrongful exercise

of the jurisdiction and the decision of the case is based on it. The writ can be moved
to higher courts like the High Court or the Supreme Court by the affected parties.

There are several grounds for the issue of Writ of Certiorari. Certiorari is not issued
against purely administrative or ministerial orders and that it can only be issued
against judicial or quasi-judicial orders.

 When is a writ of Certiorari issued?

It is issued to quasi-judicial or subordinate courts if they act in the following ways:

1. Either without any jurisdiction or in excess.

Rashid Ahmad v. Municipal Board AIR 1952 Orissa 344


2. In violation of the principles of Natural Justice.

3. In opposition to the procedure established by law.
4. If there is an error in judgement on the face of it.

Writ of certiorari is issued after the passing of the order.

 Important Judgements on writ of Certiorari

In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court has explained the
meaning, ambit and scope of the writ of Certiorari. Also, in this it was explained that
Certiorari is always available against inferior courts and not against equal or higher
court, i.e., it cannot be issued by a High Court against any High Court or benches
much less to the Supreme Court and any of its benches.

5. Prohibition

 What does Writ of Prohibition mean?

It is a writ directing a lower court to stop doing something which the law prohibits it
from doing. Its main purpose is to prevent an inferior court from exceeding its
jurisdiction or from acting contrary to the rules of Natural Justice.

 When is the writ of Prohibition issued?

It is issued to a lower or a subordinate court by the superior courts in order to refrain it

from doing something which it is not supposed to do as per law. It is usually issued
when the lower courts act in excess of their jurisdiction. Also, it can be issued if the
court acts outside its jurisdiction. And after the writ is issued, the lower court is bound
to stop its proceedings and should be issued before the lower court passes an order.
Prohibition is a writ of preventive nature. The principle of this is ‘Prevention is better
than cure’.

 Important Case Laws


In case of East India Commercial Co. Ltd v. Collector of Customs 15 , a writ of

prohibition was passed directing an inferior Tribunal prohibiting it from continuing
with the proceeding on the ground that the proceeding is without or in excess of
jurisdiction or in contradiction with the laws of the land, statutes or otherwise. Then in
the case of Bengal Immunity Co. Ltd16, the Supreme Court pointed out that where an
inferior tribunal is shown to have seized jurisdiction which does not belong to it than
that consideration is irrelevant and the writ of Prohibition has to be issued as a right .

Writ Jurisdiction under article 32 and 226: A comparative


The main difference between these two Articles is that the former can be invoked only
when there is a violation of a fundamental right whereas the power of the High Court
under Article 226 can be invoked not only for violation of fundamental rights but for
other purposes as well. Thus, the failure of a public servant to perform a statutory
duty would entitle an aggrieved person to file a writ petition under Article 226. But he
cannot invoke Article 32 unless such failure results in violation of any fundamental
right. As stated above, at least in theory, the Supreme Court has the duty to enforce
fundamental rights whereas the grant of relief under Article 226 is discretionary.

Article 226 confers power on the High Courts to issue certain writs for the
enforcement of the rights conferred by Part-III or for any other purpose. But Article
32 does not confer power on the Supreme Court as part of its general jurisdiction. If
that were so, it would have been more appropriately placed among Articles 131-
139 which define that jurisdiction. Article 32 provides a “guaranteed remedy” for the
enforcement of fundamental rights. There is no concurrence of jurisdiction
under Article 32 with that under Article 22617. While Article 32 is a more effective
remedy than Article 226 in some respects, its scope is narrower because it is restricted
to enforcement of fundamental rights only18. In a sense, the powers of the High Court
under Article 226 are wider than the Supreme Court under Article 32 since the latter

India Commercial Co. Ltd v. Collector of Customs 1962 AIR 1893
Bengal Immunity Co. Ltd AIR 1955 SC 661
Romesh Thapar v. State of Madras, AIR 1950 SC 124 : 1950 SCR 594.
Nain Sukh Das v. State of Uttar Pradesh, AIR 1953 SC 384 : 1953 SCR 1184.


Article will apply only for violation of fundamental rights19. The Supreme Court did
not approve the filing of a writ petition under Article 32, bypassing the statutory
remedy as well as the right to approach the High Court under Article 226. The
Supreme Court has transferred public interest petitions filed under Article 32 to the
concerned High Courts to be disposed off as a petition under Article 226.

The Supreme Court did not approve the practice of directly filing a writ petition
under Article 32when the same issue has been dealt with by the High Court
under Article 226, but no appeal was filed against such orders 20 . When the writ
petition was dismissed under Article 226 without going into the merits, there is no bar
on a subsequent petition under Article 32 for the same relief21. The rules to determine
seniority of District Judges from the pool of direct recruits as against promotee
District Judges was directly challenged in the Supreme Court. It rejected the plea that
the High Court should have been approached first. Since the petition had been
entertained in 2000 and the dispute involved interpretation of relevant rules without
any disputed question of fact, the court proceeded to hear the matter on merits even
though a petition under Article 226 could have been filed. 22

Public Interest litigation: Abuse of the process

Public interest litigation is a highly effective weapon in the armory of law for
reaching social justice to the common man . It is a unique phenomenon in the Indian
Constitutional Jurisprudence that has no parallel in the world and has acquired a big
significance in the modern legal concerns 23 . This technique is concerned with the
protection of the interest of a class or group of persons who are either the victims of
governmental lawlessness, or social oppression or denied their constitutional or legal
rights and who are not in a position to approach the court for the redressal of their
grievances due to lack of resources or ignorance or their disadvantaged social and
economic position.

Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, 15 : 1966 (3) SCR 744.
Gopalan M.K. v. State of Madhya Pradesh, AIR 1954 SC 362, 364 : (1955) 1 SCR 168.
Joseph Pothen v. State of Kerala, AIR 1965 SC 1514 : 1965 (2) SCR 868.
Maharashtra State Judicial Service Assn. v. High Court of Judicature at Bombay, (2002) 3 SCC
244, 248 : AIR 2002 SC 1181.
Abraham Chayes, ―The Role of Judges in Public Law Litigation‖, 89 Harvard Law Review,7 (1976).


However with the passage of time, petitions have been filed which attempted to
appropriate PIL for corporate gain, political advantage or personal interest. It is an
undemocratic, unrealistic and dangerous tendency which is to be impeded by our
judicial attitude. Former Chief Justice A.S. Anand cautioned the over use of PIL and
emphasized “Care has to be taken to see that PIL essentially remains public interest
litigation and is not allowed to degenerate into becoming political interest litigation or
private inquisitiveness litigation”. It has been held in a number of cases that the court
must not allow its process to be abused by politicians and others to delay legitimate
political objectives . Words of Krishna Iyer J reveals the change of public interest
litigation after following its history for over two decades :

Abuse of PIL, misuse of this strategy, hijacking of this versatile process by enemies of
the poor and even trivialization of public interest litigation bringing it into contempt
are now on the cards, gambling with the court’s mood and using this factotum facility
as intimidatory tool. These trends justify a critical study of PIL as a panacea or
placebo, as a magic drug or a free formal curial ploy .

In public interest litigations , misuse comes in various forms. Publicity, private

interest, political rivalry, or other oblique motives can be a motive for its misuse. The
tragedy is that it retards the flow of justice delivery system. A spirit of moderation is
needed but a consistent jurisprudence is not at all easily possible to evolve for
retarding abuse. 26 In PIL cases, the most crucial question for the court is to measure
the seriousness of the petitioner, and to see whether he is actually the champion of the
cause of the persons or groups he is representing. The effect of public interest
litigation should go beyond the sphere of the parties present in the proceedings, and it
is to be noted that public interest litigation must be accompanied by adequate judicial
control so as to prevent this technique from being used as an instrument of coercion,
blackmail or for other oblique motive.

V.R Krishna Iyer, ―Towards a Burgeoning Indian Jurisprudence of Social Action and Public Interest
Litigation‖, Indian Bar Review, Vol. I, 1989, p.141
Gulab Gupta, ―Public Interest Litigation as an Instrument of Social Justice‖, Central India Law
Quarterly, Vol. 5, 1992, pp.83-84
Prof S.P. Sathe, Administrative Law, p.384


A vexatious litigation under the colour of public interest litigation brought before the
court for vindicating any personal grievances, deserves rejection at the threshold . It is
necessary to take note of the fact that a writ petitioner who comes to the Court for
relief in public interest must come not only with clean hands like any other write
petitioner but also with clean heart, clean mind and clean objective . While tracing its
growing abuse, Law commission of India recommended a ‘Code of conduct’ for the
regulation of PIL cases in India. Twice, once in 1993 and later in 1996 PIL bills were
introduced for regulating Court’s Jurisdiction Bill had particularly strong provisions
in the question of locus standi. Our Supreme court also issued guidelines for
regulating PILs.

In a series of judgments justice Arjith Pasayat has reiterated the principles that PIL
were not meant to advance political gain and political scores under the guise of PIL In
Ashok kumar v State of W.B. Court laid down certain conditions on which the court
has to satisfy itself while entertaining PILs.

The Court has to be satisfied about

a)The credentials of the applicant
b)The prima facie correctness or nature of the information given by him.
the information being not vague and in definite; The information should show gravity
and seriousness involved. Court has to strike a balance between two conflicting
i)No body should be allowed to indulge in wild and reckless allegations besmirching
the character of the others;
ii) avoidance of public mishcief and to avoid mischievous petition seeking to assail,
for oblique motives, justifiable executive actions. In such case, however, the court
cannot afford to be liberal.Although supreme court issued guidelines on entertaining
letter petitions as PILs, and not reluctant in imposing penalty on vexatious litigants,
abuses on PIL Jurisdiction is on a rise. . Now a time has come to make a sound rule
on regulating abuses on PIL.

MISUSE happens in all sorts of matters; rival business groups are settling scores by
resort to PILs. Persons who describe themselves as “public spirited persons” and


others as “social organisations” spring up overnight to canvass these causes. A case in

point is the judgment of Chief Justice Sabharwal in TN Godavarman Thirumaulpad v.
Union of India 28 . Following the decision in Janata Dal’s case, the learned judges
observed that howsoever genuine a cause brought before a court by a public interest
litigant may be, the court has to decline its examination at the behest of a person
whose bona fides and credentials are in doubt. It was held that the applicant, who was
a man of scarce means, had spent huge amounts in litigation and was obviously
nothing but a name lender; costs of rupees one lac were imposed on him. Such
petitions are increasingly being filed in relation to matter of projects of public
importance by unsuccessful tenderers, but the use of public interest litigation in such
cases needs to be deprecated.

In Ashok Kumar Pandey’s case 29, Justice Pasayat observed:

“The other interesting aspect is that in the PILs, official documents are being annexed
without even indicating as to how the petitioner came to possess them. In one case, it
was noticed that an interesting answer was given as to its possession. It was stated that
a packet was lying on the road and when out of curiosity the petitioner opened it, he
found copies of the official documents. Whenever such frivolous pleas are taken to
explain possession, the courts should do well not only to dismiss the petitions but also
to impose exemplary costs.”

A judge need not be a rocket scientist to see through bogus matters. For instance,
when public interest litigation is being pursued by lawyers, whose huge fees are well
known, there is likely to be more than meets the eye. This is particularly so when
lawyers “fly down” to various cities and different fora to settle corporate scores or
stop public projects, developments or tenders. Given the fact that money has various
colours, one should not accept at face value, the protestation that the advocates are not
charging fees. This may seem so officially, but there are other ways of being
compensated. There are cases which are fought not only in the High Court but
pursued in the Supreme Court with great vigour. The cost of travel and stay at five
star hotels is staggering, but no one seems to be willing to ask the questions as to who

TN Godavarman Thirumaulpad v. Union of India, no. 202 of 1995.
Ashok Kumar Pandey vs The State Of West Bengal on 18 November, 2003, no. 199 of 2003.


is footing such costs. In a judgment on public interest litigation rendered by Justice

Pasayat, he has laid down the following tests:

“The court has to be satisfied about: (a) the credentials of the applicant; (b) the prima
facie correctness or nature of information given by him; and (c) the information being
not vague and indefinite. The information should show gravity and seriousness
involved. Court has to strike balance between two conflicting interests: (i) nobody
should be allowed to indulge in wild and reckless allegations besmirching the
character of others; and (ii) avoidance of public mischief and to avoid mischievous
petitions seeking to assail, for oblique motives, justifiable executive actions. In such
case, however, the court cannot afford to be liberal.”

The misuse of public interest litigation will stop only if the courts are vigilant. In
every matter, the first question that the courts must ask themselves is whether the
petitioners are bona fide, whether the concern of the petitioner is real or whether there
is something more than meets the eye. I am not suggesting that all public interest
litigations should be viewed with suspicion; far from it. Justice P B Savant (who
retired as a judge of the Supreme Court) once told me that a judge should develop a
strong sense of smell. If something stinks, then he must be extra careful. It is the right
judicial instinct and the skill of the judiciary which will stop the misuse of public
interest litigations and restore it to its pristine and useful character.


PIL is thus a mechanism which helps the poor get justice. The innovation of this
legitimate instrument proved beneficial for the developing country like India. PIL has
been used as a strategy to combat the atrocities prevailing in society. It would be
appropriate to conclude by quoting Cunningham, “Indian PIL might rather be a
Phoenix: a whole new creative arising out of the ashes of the old order.” the great
strength of the judiciary must be utilized for public good and always in public interest
in the service of the people. In order to curb frivolous litigation by proper check at
entry and quick disposal is the main remedy. Judicial system can suffer no greater
lack of credibility than a perception that its order can be flouted with impunity. This
court must refrain from passing orders that cannot be enforced, whatever the


fundamental right may be and however good the cause. It serves no purpose to issue
some high profile mandamus or declaration that can remain only on paper. Although
usually the Supreme Court immediately passes interim orders for relief, rarely is a
final verdict given, and in most of the cases, the follow-up is poor. The courts
therefore, need to keep a check on the cases being filed and ensure the bona fide
interest of the petitioner and the nature of the cause of action, in order to avoid
unnecessary litigations. Vexatious and mischievous litigation must be identified and
struck down so that the objectives of PIL aren’t violated. The founding fathers of our
country envisaged the judiciary as “a bastion of rights and justice.” The tools of
judicial review, activism and action in public interest through PILs are the tools to
achieve complete independence of justice machinery and due discharge of duties .