CHAPTER-1

Introduction and Historical Development

1.1 Introduction
According to Blackstone writs as a mandatory letter from the king in parliament,
sealed with his great seal and directed to the sheriff to the country wherein the injury
is committed or supposed so to be committed, requiring him to command the
wrongdoer or party accused, either to do justice to the complainant or else to appear in
court and answer the accusation against him.

Writ is actually means a "courts written order in the name of a state or other
competent legal authority commanding the addressee to do or refrain from doing
some specified act “1. In Common law, a writ is a formal written order issued by a
body with administrative or judicial or judicial jurisdiction, in modern usage, the body
is generally a court. Warrants, prerogative writs, and subpeons are common types of
writs, but many forms exist and existed. Under Indian Legal System, jurisdiction to
issues 'prerogative writs' is given to the Supreme court, and to the High Court of
judicature of all Indian states. The Supreme Court, the highest court in the country,
may issue writs under Article 32 of the constitution foe the enforcement of
fundamental rights, while the High court can issue writs under article 226.

Our country got independence and the Constitution of free India came into force. The
law of writs as inherited from the English colonial regime was having a limited scope
but its effectiveness was time-tested. Therefore, the constitutional forefathers decided
to retain the concept as such in its 'nature' as a broad parameter, but its scope was
enlarged by adding some new words to it and it was left open ended also. This was
essential also, keeping in view the hopes and aspirations of the people. The people
had suffered the peril of the foreign yoke for centuries and their faith and confidence
in the new set-up was bubbling with spontaneous feelings of freedom wherein they
dreamt of endless liberties. However, it was not to be allowed to go as a dream only
and to fulfil these hopes a vast scope of liberty, justice and equality was

_________________________
1
Whartons law dictionary
1
provided in the Constitution. The fundamental rights were incorporated in the
Constitution, fully ensured the basic human liberties. To fructify these rights
into actual liberties, a detailed legal provision was incorporated in the Constitution
itself to safeguard these rights. Under Article 32, the enforceability of these rights was
included as a fundamental right and an almost parallel provision was provided under
Article 226 as a constitutional right.

Writs soul of Indian Constitution

Dr. B. R. Ambedkar called writs of the Indian constitution i.e. Right to constitutional
remedies as the 'the Heart and Soul of the Indian Constitution'. It was made so
because mere declaration of the fundamental right without an effective machinery for
the enforcement of the fundamental right would have been meaningless. And also the
right which does not have remedy is worthless. Thus the framers of our constitution
adopted the special provision in the article 32 which provide remedies to the violated
fundamental rights of the citizen. The constitution of India is the longest written
constitution of the world. It is the result of many debate and drafted with the utmost
care. The part Ill of our constitution talks about fundamental rights that are there for
us to enjoy. Article 32 and 226 are there to safeguard them and in case of violation an
appropriate writ can be issued by either Supreme Court (32) or by any High Court
(Art 226). But these articles do not give liberty to issues writs against anybody,
company, society or corporation. Article 12 of the Constitution limit the writ
jurisdiction by stating the word the 'State' which will include Government and the
Parliament of India, Government and Legislature of States, all local authorities within
the territories of India or under the control of Government of India. State Bank and all
other nationalized banks are 'state 'for the purpose of Art. 12 because the job of
workmen there is governed by various laws which are government made, so the bank
cannot use the policy of 'hire and fire 'at their will and are amenable to writ
jurisdiction.2But BCCI was not held to be state' because it is neither functionally, nor
administratively dominated by government?
________________________________________
2
State Bank v. Swarkar (2003) SC 858.
3
Zee Telefilms v. I-JOI AIR 2005 SC 2677.

2
 There are several tests laid down by the Supreme court in various cases for determine
whether a body is 'state 'or not. There is no fixed formula. It is prima facie appear due
to some features of a body that it is state.

In the case of Ajay Hasia v. Khalid Mujahid4 following test were laid to check whether a
body is instrumentality of state or not:

1) If the entire share capital of the body is in control of the government, it is 'state
2) If the financial assistance given by government, meet nearly the whole of the body's
expenditure, is shows the impregnation of the governmental character in the body
3) If the corporation has been bestowed upon by government a monopoly, it is a 'state.
4) If Deep and pervasive control of the government is present over the body, it is 'state'
5) If the corporation performs public function , then it is also 'state'
If any of the above character lies in the body and it violate any of the fundamental
right then, a writ can be used against it. A writ lies against any state action which
violates fundamental rights. The state action may be administrative, judicial or quasi-
judicial. State action means any aid, contr015, function or regulation, which gives the
colors of government action of private body.

1.2 Origin of Writs

The origin of writs took place in the English judicial system, with the development of
English law. The law of writs originated from orders passed by the King's Bench in
England. The Writ was precisely a royal order, which was issued under the Royal
Seal. It was used to be issued on a petition presented to the King in council for
exercise of the extraordinary judicial powers in a particular matter. At the initial stage,
the King's court consisted of barons and high ecclesiastical and with legislative,
judicial and administrative functions. However, with various phases of history it took
different names and forms but the spirit of this extraordinary power remained almost
the same.

___________________________________________________________

4
1981 (1) SCC 722
5
M.C Mehta v. I-JOI 1987 AIR SC 1086.

3
 Background of Origin
Though the development of the common law courts in various forms had also been
constant, but the origin of writ court had a specific reason. The jurisdiction of
common law was more or less static. It did not recognize rights except those already
prevalent and admitted by it. Similarly, common law Courts worked under a
prescribed procedure with many limitations on it. Its forms, under which rights were
to be enforced, were fixed and limited. Thus, there had been number of cases, which
did not fall under any of the fixed remedies and so these cases remained beyond the
jurisdiction of the common law courts. In such cases, these courts were powerless to
grant relief. Thus, the deficiency of remedy or failure of the common law court to rant
relief in time became the cause of petition to the King in council to exercise their
extraordinary judicial powers. These petitions were heard and disposed of by or on
behalf of the King's Bench. A written order was issued in the name of the King called
— a writ, which was to act as a foundation to the subsequent proceedings. Originally,
writs were intended to be issued only by the crown and in the interest of the crown.
However, in due course of time, the writs became available to the ordinary citizens
also. A prescribed fee was charged for these writs and that is why the filing of writ
used to be called 'Purchase' OF A WRIT. These writs were used to establish royal
supremacy also. This form of adjudication was called prerogative writs also.

The Historical Sequence

The origin of writs in India goes back to the Regulating Act, 1773 under which a
Supreme Court was established at Calcutta by a charter in 1774. A similar charter also
established the Supreme Courts of Madras and Bombay with analogous provisions in
1801 and 1823, respectively. Letters Patent were given to all the three courts were
replaced by the High Courts in 1862 under High Courts Act, 1861. The High Court’s
so established enjoyed all the powers, which were there with the Supreme Courts
replaced by these courts. Thus the three presidency High Courts inherited the power
to issue writs as successors to the Supreme Court. Other High Courts subsequently
established did not have these powers because they were newly created and they
could not inherit these powers as the presidency High Courts did. The special
authority, which was conferred by the charter on the three presidency High Courts,
was not mentioned in the letters patent of the subsequent courts. However, the writ

10
jurisdiction of these counts was limited to their original civil jurisdiction, which they
enjoyed under section 45 of the Specific Relief Act, 1877.

Under the above status of the law of writs, our country got independence and the
Constitution of free India came into force. The law of writs as inherited from the
English colonial regime was having a limited scope but its effectiveness was time-
tested. Therefore, the constitutional forefathers decided to retain the concept as such
in its 'nature' as a broad parameter, but its scope was enlarged by adding some new
words to it and it was left open ended also. This was essential also, keeping in view
the hopes and aspirations of the people. The people had suffered so much because for
centuries and their faith and confidence in the new set-up was bubbling with
spontaneous feelings of freedom wherein they dreamt of endless liberties. However, it
was not to be allowed to go as a dream only and to fulfil these hopes a vast scope of
liberty, justice and equality was provided in the Constitution. The fundamental rights
were incorporated in the Constitution, which fully ensured the basic human liberties.
To fructify these rights; not actual liberties, a detailed legal provision was
incorporated in the Constitution itself to safeguard these rights. Under Article 32, the
enforceability of these rights was included as a fundamental right and an almost
parallel provision was provided under Article 226 as a constitutional right. From the
earliest stages in the constituent Assembly, the founding fathers seemed to be agreed
on the need for constitutional remedies for the enforcement of fundamental rights. In
K.M. Munshi's draft on fundamental rights, the right to constitutional remedies was
included as a fundamental right and court could be moved for the issue of writs of
habeas corpus, mandamus, certiorari and prohibition. Ambedkar's draft added to the
writ of quo warranto and would have the jurisdiction to issue prerogative writs left
with the Supreme Court only.

At the Fundamental Rights Sub-Committee Alladi Krishnaswami Ayyar suggested

that the writ of habeas corpus should be issued only by the Supreme Court while
power to issue other writs may vest in the High Court with the Supreme Court having
only appellate jurisdiction. Clause 30 in the Report of the Sub-Committee on
Fundamental Rights (16 April, 1947) said

11
l) The right to move the Supreme Court for the enforcement of any of the rights
guaranteed by this part is hereby guaranteed
2) For the purpose of enforcing any such rights, the Supreme Court shall have power
to issue directions in the nature of the writs of habeas corpus, mandamus,
prohibition, quo warranto and certiorari.
3)The privilege of these writs shall not be suspended unless when, in cases of
rebellion or invasion, or other grave emergency, the public safety may require it.
Alladi Krishnaswami Ayyar expressed strong reservations in regard to the efficacy
of writ procedure. He suggested a less complicated system of a simple application.
He said that even in England the writ procedure was abolished in 1938. Apart from
the choice between writ and application procedure, Ayyar felt that entrusting writ
jurisdiction to Supreme Court only may lead to flooding it with writs. In a country
of India's size and with the variety of fundamental rights guaranteed it may be most
desirable to give to the Supreme Court original jurisdiction only in certain matters.
Mr. Ayyar reiterated his view that the Supreme Court be concerned in its original
jurisdiction only with habeas corpus writs. Dr. Ambedkar was for the Supreme
Court having the constitutional authority to issue all types of writs. Mr. Sardar
Patel as the Chairman of the Advisory Committee asked Munshi, Ayyar and
Ambedkar to present a suitably revised draft of the clause. The redrafted clause
appeared as clause 22 in the Advisory Committee Report of 23 April, 1947. It read
as follows

1) The right to move the Supreme Court by appropriate proceedings for the
enforcement e.! any of the rights guaranteed by this part is hereby guaranteed
2) Without prejudice to the powers that may be vested in this behalf in other courts,
the Supreme Court shall have power to issue directions in the nature of the writs
of habeas corpus, mandamus, prohibition, quo warranto and certiorari appropriate
to the right guaranteed in this part of the Constitution.
3) The right to enforce these remedies shall not be suspended unless when, in cases
of rebellion or Invasion or other grave emergency, the public safety may require
it.

12
 When the clause came up for the consideration of the Constituent Assembly, K
Santhanam moved an amendment to clarify that in sub-clause (3) the emergency when
writs could be suspended must be defined as one "declared to be such by the
Government of the Union or of the unit concerned". As Chairman of the Advisory
Committee Patel accepted Santhanam's amendment and the clause as amended
thereby was adopted by the Constituent Assembly. The Draft Constitution prepared
by the Constitutional Adviser (October 1947) in its clause 28, however, presented a
different proposal. The clause read

Remedies for enforcement of rights guaranteed in this chapter.

1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights provided for this chapter is guaranteed.

2) Such right shall not be suspended except when a Proclamation of Emergency

issued under sub-section (l) of section 182 is in force, or a grave emergency,
declared by the Government of any unit whereby the security of the unit is
threatened, exists.

The Drafting Committee did not agree to this substantial dilution of the power of the
Supreme Court to issue writs. It restored the original sub-clause (2). Draft article 25 in
the Drafting Committee's Draft Constitution of February, 1948 read as follows:
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 in the nature of the
writ 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) 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
of this article.
4) The rights guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.

13
When the Draft Constitution was circulated for eliciting opinion and comments,
several suggestions were received. Among others, Pattabhi Sitaramayya suggested
that at the beginning of clause (3) may be added the words "without prejudice to the
powers of the Supreme Court under clause (2) of this article" so as to make it clear
that the Supreme Court's power to issue Mist would not be affected by any law
conferring similar powers on other courts.

When draft article 25 came to be discussed in the Constituent Assembly, on 9

December, 1948, it was widely acclaimed as the crowning section of fundamental
rights. Ambedkar said
"If I was asked to name any particular article in this 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".
Dr. Ambedkar himself moved the amendment suggested by Santhanam. Of the other
amendments, Ambedkar accepted the one moved by Naziruddin Ahmed for replacing
the words "in the nature of the writs of" in clause (2) by the words "writs including
writs in the nature of'
Both these amendments and draft article 25 as amended thereby were adopted by the
Constituent Assembly to stand part of the Constitution. At the revision stage, draft
article 25 was renumbered as article 32 of the Constitution

14
 CHAPTER - 2
NATURE SCOPE & RELATIONSHIP OF ARTICLE 32 & 226

2.1 Nature of Writs

Writ is actually means a "courts written order in the name of a state or other
competent legal authority commanding the addressee to do or refrain from doing
some specified act 1 .1n Common law, a writs is a formal written order issued by a
body with administrative or judicial or judicial jurisdiction, in modern usage, the body
is generally a court. Warrants, prerogative writs, and subpeons are common types of
writs, but many forms exist and existed. Under Indian Legal System, jurisdiction to
issues

‘prerogative writs' is given to the Supreme court, and to the High Court of judicature
of all Indian states. The Supreme Court, the highest court in the country, may issue
writs under Article 32 of the constitution foe the enforcement of fundamental rights,
while the High court can issue writs under article 226.

Supervisory Nature:
The writs jurisdiction is supervisory in nature and it is different from appellate or
revision jurisdiction The basic purpose of writs is to correct the defects of justice and
while exercising the writs jurisdiction the court has to examine the application of law
rather than facts. The writs jurisdiction supervises the proceedings of the subordinate
courts or authorities in the application of law, the jurisdiction of such bodies or
authorities exercising the judicial and quasi-judicial function.

1
Whartons law dictionary
2
Durga Das Basu, Constitution of India,Lexix Neixs,2012, 14th edition, p603.
15
 Original jurisdiction:

The Supreme court and the High Court has the original jurisdiction. Even if the
decision of a tribunal is challenged in writ petition, it would be the original and initial
jurisdiction of the court and is not the continuation of the proceeding of the earlier
court or tribuna18. The facts and evidence are not relevant for the courts in the writs.
The only relevant thing which is to be seen is the appreciation of application of law
and the jurisdiction and competency of such application.

Summary proceeding:
The proceedings of writs are summary in nature since there is no detailed application
of facts and evidence is required. The pleadings in the court are entertained in the
form of affidavit and on the basis of pleadings and after hearing the arguments of both
the advocates the writs petition is decided.9

Suo moto jurisdiction:

Now the courts in certain cases don't wait for the writ petition to be filed. The court
may take suo moto action against the violation of the fundamental rights of the
person.

___________________________________________
8
http://supremedourtofindia.nic.in/jurisdiction
9
http://www.jurisedge.com/
16
2.2 RELATIONSHIP BETWEEN ARTICLES 32 AND 226

"No action lies in the Supreme Court under Art. 32 unless there is an infringement of
a Fundamental Rights." 0.Art. 32 differs from Art. 226 in the sense that Art. 32 can be
evoked only for the enforcement of Fundamental Rights whereas Art. 226 can be
evoked not only for the enforcement of Fundamental Rights but for 'any other
purpose' as well. This means that the Supreme Court's power under Art.32 is restricted
as compared with the power of a High Court under Art.226, for, if an administrative
action does not affect a Fundamental Right, then it can be challenged only in the High
Court under Art.226, and not in the Supreme Court under Art.32.The words "for any
other purpose" found in Art 226 (but not in Art.32), enable a High Court to take
cognizance of any matter even if no Fundamental Right' is involved.

It may, however, be pointed out that there have been a few exceptional cases where
the Supreme Court has entertained writ petitions under Art. 32 although no question
of Fundamental Right was involved. This approach of the Court is justifiable on the
ground that in these cases questions of great constitutional significance were raised;
there was no forum except tlr Supreme Court where these questions could be decided,
and there was no other mechanism, except Art. 32 to bring such matters under the
preview of the Supreme Court. These matters are
(i) Misuse of ordinance making power by the State of Bihar. Il
(ii) Appointment of the judges of High Courts and the Supreme Court. 12
(iii) Issues related with the procedure to remove a Supreme Court Judge. 13
Reference may be made to Tamil Nadu Cauvery NVV NU P Sangam v. Union of
India14 The society moved a writ petition under Art. 32 in the Supreme Court for a
direction to the Government of India to refer to Cauvery water dispute to a tribunal.
The petition remained pending in the Court for more than seven years.

10
Andhra Industrial Works V. Chief Controller of Imports, AIR 1974 SC 1539.
11
D.C. Wadhwa V. state of Bihar AIR 1987 SC 597.
12
Supreme Court Advocates on Record Ass V. Union of India
13
Sarojini Ramaswamy V. Union of India AIR 1992 SC 2219
14
AIR 1990 sc 1316
An objection was raised against the maintainability of the petition. Rejecting the
objection, the Court ruled that to throw out the petition after seven years by accepting
the objection against its maintainability would be ignoring the actual state of affairs
and in our view would be wholly unfair and unjust.

In the matter of enforcement of Fundamental Rights, the High Court under Art. 226,
and the Supreme Court under Art.32, enjoy concurrent jurisdiction. A question has
been raised whether a petitioner seeking to enforce his Fundamental Rights can go
straight to the Supreme Court under Art.32, or should he first go to a High Court
under Art. 226. In 1950, in Romesh Thappar15, the Supreme Court ruled that such a
petitioner can come straight to the Supreme Court without going to the High Court
first. The Court stated that unlike Art. 226 Art. 32 confers a Fundamental Right on the
individual and imposes an obligation on the Supreme Court which it must discharge
when a person complains of infringement of a Fundamental Right. Art.32 provides a
guaranteed remedy for the enforcement of the Fundamental Rights and constitutes the
Supreme Court as the "guarantor and the protector of Fundamental Rights." The same
thing has been reiterated by the Supreme Court in a number of cases. 16This
continued to be the position till 1987 when a two Judge Bench of the Supreme Court
ruled that a petitioner complaining of infraction of his Fundamental Right should
approach the High Court first rather than the Supreme Court in the first instance. The
reason given for this view was that there was a huge backlog of cases pending before
the Supreme Court.

In P.N. Kumar v. Municipal Corp. of Delhi" that the citizens should not come to the
court directly for the enforcement of their Fundamental Rights, but they should first
seek remedy in the High Courts and then if the parties are dissatisfied with the
judgment of the High Court, they can approach the Supreme Court by way of appeal
in this case,
____________________________
15
Romesh Thappar v. State of Madras AIR 1950 SC 124
16
State of Madras v. v.G. Row, AIR 1952 SC, 196; K.K. Koachunni v. State of
Madras, AIR 1959 SC 725; Kharak Singh v. State of Uttar Pradesh AIR 1963 SC
1295.
17
(1987) 4 scc 609.
 the petitioners challenged the imposition of various taxes on their Hotel and prayed
for quashing the same. Disposing the petition the judges laid down following
guidelines for the exercise of the right under Article 32

1) The scope of Art. 226 is wider than Art. 32. The parties first seek relief in the High
Court and should come to the Supreme Court in appeal only
2) Hearing of the case at the level of High Court is more convenient to the parties. It
saves lot of time.
3) The High Court has its own tradition. They have eminent Judges, whose capacity
should be utilized.
4) Every High Court has a good Bar. There eminent lawyers with wide experience,
handle different kind of cases. They know history of every legislation in their State.
5) The Supreme Court has no time to decide cases pending before it kfor the last 10 to
15 years, with the present strength of judges and will take more than 15 years to
dispose of all pending cases.
6) If the cases are filed in the High Court the task of Supreme Court acting as an original
court which is time consuming can be avoided.
7) If cases which may be filed in the High Court are filed in this Court it would affect the
initiative of the High Courts. We should preserve the dignity, majesty and efficiency
of the High Courts. The taking over by this Court of the work of High Court may
undermine the capacity and efficiency of the High Court and should be avoided.
8) The time saved by this Court by not entertaining the cases which may be filed before
the High Courts can be utilized to dispose of old matters in which parties are crying
for relief.
9) These directions of the Supreme Court are contrary to the spirit of Art. 32, which
guarantees to every citizen of India the right to move the highest Court of the nation
for the enforcement of his Fundamental Rights. The argument that since a large
number of cases are pending in the Court therefore the citizens should not come
directly to the court is not justified. The object of Art. 32 is to provide quick remedy
to the citizens whose Fundamental Right is violated. If a citizen is asked to go first to
the High Court and then to go to the Supreme Court in appeal the very purpose of Art.
32 will be frustrated. Art. 32 does not make distinction between the rich and the poor.
Such an attempt by the Judges of the Supreme Court to curtail the Fundamental
Rights of citizens cannot be justified.
Since it is the view expressed by a two Judge-Bench, it cannot be regarded as an
authoritative pronouncement on an important constitutional issue, viz. inter
relationship between Arts. 32 and 226. Such a vital pronouncement could be made
only by the constitution Bench consisting at least of five judges, especially, when the
long established position is sought to be overturned. The two judge bench ruling seeks
to negate what the Supreme Court has itself said in a number of cases during the last
four decades emphasizing upon the significance of Art. 32, and the role assigned to
it.18Even otherwise, on merits, this view will make Art. 32 redundant for after having
gone to the High Court first under Art. 226, the petitioner would then come to the
Supreme Court by way of appeal and not under Art.32, because of the principle of
res-judicata applies. When a litigant approaches the Supreme Court, the matter is
decided by the court finally. But if he approaches the High Court, the petition is just
decided by a single judge, an appeal then lies to the division bench, and, therefore, an
appeal may be taken to the Supreme Court. This may cause more delay and prove
costlier to the petitioner than a writ petition directly under Art.32. In effect, this ruling
devalues the significance not only of the Fundamental Rights but of the Supreme
Court itself. This could have never been the intention of the framers of the
Constitution.

In practice, it seems that two judge bench pronouncements have had no effect on the
existing practice and the writ petitions continue to be filed in the Supreme Court
under Art.32 without first going to the High Court under Art.226.

18
state of Madras v. v.G. Rao, AIR 1952 SC 196. K.K. Kochunnj V. state of Madras,
AIR 1959 SC 125. Charanjit Lal v. Union of India, AIR 1951 SC 42. Prem Chand v.
Excise Commissioner, UP AIR 1963 SC 996
 2.3 RESTRICTIONS UNDER ARTICLE 32

Article 32 and Resjudicata

The Supreme Court has imposed a significant restriction on the invocation of its
jurisdiction under Article 32 by applying the doctrine of res judicata. The rule of res
judicata is based considerations of public policy. It is in the larger interest of the
society that a finality should attach to binding decisions of courts of competent
jurisdiction and that individuals should not be made to face the same kind of litigation
twice. If the doctrine of resjudicata is not applied to writ proceedings, then a party
could take one proceeding after another and urge new grounds every time in respect
of one and the same cause of action. This would be inconsistent with considerations
of public policy. Accordingly, a person cannot move successive petitions under Art 32
for the same cause of action. An order assessing the tax having been challenged once
through a writ petition, it can't be challenged again through another writ petition even
if the petitioner seeks to urge new grounds against the order. 19 When once the
Supreme Court has decided a question between two parties under Art 32, the same
question can't be reopened between the same parties under Art. 32.20

The petitioner challenged the detention in a writ petition, but it was dismissed.
Subsequently, after renewal of the detention order. he sought to file another petition
repeating some of the contentions which he has advanced earlier. The Court rejected
the petition as no new grounds had arisen to challenge detention again. 21 But res
judicata would not apply if orders sought to be challenged through successive writ
petitions as for example, when a petition challenging the validity of the tax
assessment for one year is dismissed by the Supreme Court, a similar order passed for
the subsequent year can be challenged through a new writ petition on some grounds22
not raised earlier in the first writ petition.

19 Devilal Modi v. STO AIR 1965 SC 1 150

20 Raja Jagannath Baksh Singh v. State of U.P. AIR 1962. SC 1563. MSM Sharma v.
Shree Krishna Sinha AIR. 1960 sc 1186
21 P.L. Lakhanpal v. Union of India AIR 1967 SC 908
22 Amalgameted Coalfields V Janapada Sabha, Chinolvara Air 1961 SC 964.

15
 The Supreme Court has ruled in Lallubhai v. Union of India23 that the doctrine of
constructive res judicata is applied only to civil actions and civil proceedings. This
principle of public policy is entirely inapplicable to illegal detention and does not bar
a subsequent petition for a writ c.c habeas corpus under Art. 32 on fresh grounds not
taken in the earlier petition for the same relief, Thus, when a writ petition challenging
an order of detention is dismissed by the Court, a second petition can be filed on
fresh, additional grounds to challenge the legality of the continued detention of the
detent, and the subsequent petition is not barred by res judicata.

When a writ petition under Art. 226 has been dismissed by the High Court, another
writ petition under Art, 32 cannot be moved in the Supreme Court, to seek redress in
the same matter. The principle of res judicata envisages that if a judgement has been
pronounced by a court of competent jurisdiction, it is binding between the parties
unless it is reversed or modified in appeal, revision or other procedure prescribed by
law. According to the Supreme Court, the jurisdiction of a High Court in dealing with
a writ petition under Art. 226 is substantially the same as that of the Supreme Court
under Art. 32. The Scope of the writs under both the Articles being concurrent, res
judicata applies. The High Court's decision can be attacked in an appeal to the
Supreme Court but not through a writ petition.24

In Daryao25 the Supreme Court dismissed a writ petition moved under Art. 32 because
earlier the petitioner had moved in the High Court a writ petition under Art, 226 on
the same facts and the High Court had rejected the same. In Har Swarup, 26 the
petitioner filed a writ petition under Art. 226. The High Court dismissed the petition
and also refused leave to appeal to the Supreme Court. Therefore, he filed a writ
petition in the Supreme Court under Art. 32 Claiming exactly the same reliefs as he
had claimed in the High Court and on identical ground.

23 Air 1981 SC 728

24 Daryao v. state of Uttar Pradesh, AIR 1961 SC 1457: (1962) I SCR 574
Gulab Chand Parikh v. state of Gujarat, AIR 1965 SC 1 153 • (1965) 2 SCR 547
25 AIR 1961 SC 1457
26 Har Swarup v. General Manager, Central Railways, AIR 1875 SC 202: (1975) 3 SCC
621
16
 In the circumstances, the Supreme Court dismissed the writ petition on the basis of
the principle of res judicata. The res judicata principle would, however, apply only
when the High Court has disposed of the writ petition on merits. If the petition has
been dismissed by the High Court not on merits, but on
a technical ground e.g. petitioner's laches, or that he has an efficacious alternative
remedy available to hilly, or the petition has been disguised in liming without passing
a speaking order, then res judicata would not apply and the Supreme Court can
entertain a petition under Art, 32, because Art, 32 is a Fundamental Right and the
Supreme Court ordinarily tissues a writ if there is a breach of any Fundamental
Right.27The principle of res judicata has also been applied when a person first goes to
the Supreme Court under Art 32, and on his application having been rejected there,
comes to the High Court under Art, 226.28 Res judicata is not applied to a petition for
a writ of habeas corpus. If such a petition is dismissed by the High Court on merits, a
similar petition may be entertained by the Supreme Court under Art, 32.29

Art. 32 is not available to attack the correctness of a decision rendered by the

Supreme Court on merits or not to claim its reconsideration by the Court.30The
Supreme Court rendered a decision. The Court also dismissed a review petition
seeking a review of the decision. Thereafter, a writ petition was filed under Art. 32
challenging the validity of the Court decision. The Court referred the question for
decision to the Constitution Bench whether a Court decision can be challenged
through a writ petition. The Court has now decided that this cannot be done.2

Doctrine of Laches -
Laches or inordinate delay on the part of the petitioner may disentitle him to move a
writ petition Art, 32 to enforce his Fundamental Right. The Court refuses relief to the
petitioner on the ground of laches because of several considerations, e.g. it is not
desirable to allow stale claims to be canvassed before the Court: that there should be
finality to litigation: that rights which have accrued to others by reason of the delay in
filing the petition should not be disturbed unless there is reasonable explanation for

31
Roopa Ashok Hurra (1992) 2 SCC 103. AIR 1999 SC 2870

17
 the delay. The aggrieved party should therefore, file the petition at the earliest
possible time.
In Trilokchand Mo/ichand v. 11.13. Munshi,3 the sales tax officer sought to collect tax
from petitioner Trilok chand. The petitioner filed a writ petition in the High Court
which failed. Thereupon, in 1959, he agreed to pay the tax in instalments. In 1967, on
some proceedings initiated by some other party, the Supreme Court struck down the
relevant provision in the Jaw as infringing Art. 19(l)(f) of the Constitution. Thereafter,
in 1968, Trilokchand moved the Supreme Court under a 32 praying that the order
seeking to recover tax from him be quashed as it ha. been issued under an
unconstitutional statute. The Supreme Court rejected the petition by a majority on the
ground of laches, Some of the Judges suggested that the Indian Limitation Act may be
applied by analogy to petitions under Art. 32. This meant that a claim based on
infraction of a Fundamental Right ought to be entertained if made beyond the period
fixed by the Limitation Act for the enforcement of the right by way of suit. A middle
view was expressed by Hidayatullah, C.J. He denied that the Limitation Act would
apply to writ petitions under Art. 32, but still he maintained that the petitioner should
move the Court at the earliest and should explain satisfactorily if there is delay on his
part. There is no fixed period for the purpose and the Court decides each case on its
merits. He gave the reason for rejecting delayed writ petitions as follows. "The action
of courts cannot harm innocent parties if their rights emerge by reason of delay on the
part of the person moving the court." The Chief Justice therefore opined "Therefore
the question [of delay] is one of discretion for this Court from case to case. There is
no lower limit and there is no upper limit. It will all depend on what the breach of the
Fundamental Right and the remedy claimed are and how the delay arose"
However, Justice Hedge, dissenting, took an absolutist view on the question of laches.
He asserted that "Laches on the part of an aggrieved party cannot deprive him of the
right to get relief from the Court under Art. 32" He asserted that the Limitation Act
has no relevance either directly or indirectly under Art. 32. The right under Art. 32
itself being a Fundamental Right, it could not be curtailed or circumscribed except as
provided by the Constitution. If the Court regards its power under Art, 32 as
discretionary then Art. 32 would cease, to be a Fundamental Right. Act for a suit on

32
AIR 1970 SC 898: (1969) 1 SCC 110.
18
 similar fact-situation, would have been too rigid and unsupportable. Art, 32 is a
Fundamental Right itself and its efficacy should not be unduly curtailed.
The situation was, however, retrieved by the Supreme Court's decision in R.S.
Deodhar v, Stale of Maharashtra. 33 There was a delay of more than 10 years in filing
the writ petition since the accrual of the cause of complaint. The Court rejected the
contention that the petition was delayed. On the rule of laches, the Court observed that
this "is not a rule of law, but a rule c, practice based on sound and proper exercise of
discretion, and there is no inviolable rule that whenever there is delay, the Court must
necessarily refuse to entertain the petition. Each case must depend on its own facts".
The period of limitation prescribed in the Limitation Act should be used as a guide
and not as an absolute rule. Further, the Court asserted that "this Court which has been
assigned the role of a sentinel on qui vive for the protection of the Fundamental
Rights cannot easily allow itself to be persuaded to refuse relief on the genuine
ground of laches, delay or the like".

The above discussion means that the Court will consider each case on its facts and
decide whether or not the petition should be rejected on the ground of laches. There is
no fixed period of limitation applicable to Art petitions. This in a way is acceptance of
the view expressed by Hidayatullah, J., in Trilokchand. The Supreme Court thus
applies the rule of laches in a flexible and not a rigid manner.
The Supreme Court may consider a delayed petition if the petitioner is able to give a
reasonable explanation for the delay. In Rabindra Nath v. Union of India, 34 the Court
rejected a writ petitions filed to challenge the seniority rule made fifteen years earlier
under Arts. 14 and 16. The Court said in R.S. Makashi v. J.M. Menon.35 that no relief
could be given to the petitioner who without any reasonable explanation, approaches
this court under Art, 32 after inordinate delay. "It would be unjust to deprive the
respondents of the rights which have accrued to them." in this case, vested rights were
sought to be disrupted after eight years.

33 AIR 1974 SC 259. (1974) I SCC 317

34 AIR 1970 SC 470 : (1970) I SCC 84 35 AIR 1982 SC 101 : (1982) I SCC 379.
35 Roshanlal v. Intemational Airport Authority of India, AIR 1981 SC 597
22
 In Roshanlal,36 the Supreme Court rejected a writ petition presented in 1978
challenging certain appointments made in 1975. The Court thought that it would not
be justified in reopening the question of the legality of the appointment after several
years.

In Doval, 37 a provisional seniority list prepared in March, 1971, was challenged in

1983 through a writ petition filed under Art, 32. Many promotions had been made
during the intervening period. The Supreme Court refused to dismiss on the ground of
laches arguing that the impugned list was merely provisional and that the Government
neither considered nor replied to the many representations made by the petitioners.
Also, the petitioners belonging to the lower echelons of service might have found it
difficult to move the court earlier.

In S.S. Moghe v. Union of India, 38 promotions in government service were

challenged on the ground of infringement of Fundamental Right. No explanation was
given for delay of several years in the filing the writ petition. Rejecting the petition,
the Court said that a party should be diligent in enforcing his Fundamental Right and
he should approach the Court within a reasonable time after the cause of action had
arisen. If there has been undue delay or laches on his part, the Court has discretion to
deny him relief. A writ petition filed in 1973 sought to set aside a number of
promotions and confirmations which had taken place long before the filling of the
petition. The Court dismissed the petition on the ground that "the equitable rights of a
number of other government servants had come into existence by the laches and
acquiescence of the petitioners 39

37 G.P. Doval v. Chief Secretary, Govt. ofU.P. AIR 1984 SC 1841 • (1984) 4 SCC 329.
38 AIR 1981 SC 1495 : (1981) 3 SCC 271
39 Amrit Lai v. Collector C.E.C. Revenue AIR 1975 SC 536 : (1975) 4 SCC 714.

22
 Existence of Alternative Relief'

The existence of an alternative relief is no bar to the grant of' remedy under Art. 3240
In cases involving the breach of fundamental rights, even under Art 226, the existence
of an alternate tuned)' is no ground for refusal of proper relief.41 The Supreme Court
ordinarily insists that the alternative remedy should be availed of unless the
alternative remedy is useless to the petitioner as for example, where the High Court
has already laid down a legal preposition which goe against the petitioner.42
In Romesh Thapar v. State of Madras 3 the petitioner challenged order of State of
Madras banning circulation of his publication in state. Advocate General of Madras
raised preliminary objection that the petitioner ought to have approached the HC
under Article 226 which has concurrent jurisdiction. The Supreme Court held that
remedial right under Article 32 is itself made a fundamental right by being included in
Part 3 •of constitution. It is wholly erroneous to assume that before jurisdiction under
Art.32 evoked, applicant must either establish that he has no other adequate remedy or
that he has exhausted such remedies as the law affords or has yet not obtained proper
redressal. In Kharak Singh v. State of U.P. 44 and also in K.K. Kochuni v. State of
Madras45, it was held that in cases involving the breach of fundamental rights, even
under Article 226, the existence of an alternative remedy is no ground for the refusal
of proper relief. The existence of an alternative relief is no bar to the grant of remedy
u/a 32.

40 K.K. Kochunni Moopil Nayar v. State of Madras, AIR 1959 SC 725.

41 U.P. state V Mohd. Nooh AIR 1959 SC Sb, Kharak Singh V state of U.P. AIR 1963.
SC. 1295.
42 Y. The Clamma V Union of India (1987) 2 SCC 516 ; AIR 1987 SC 1210; Satish
Chandra V Registrar of Coop.
Societies, (1999) I SCC 332, 335.
43 AIR 1950 SC 124
44 AIR 1963 SC 1295
45 AIR 1960 SC 1080
46 AIR 1961 SC 1570

23
Following are the cases in which the Court has disallowed the maintainability of
petition for relief -In the case of Bhisham Das v. State of Punjab46 it was held that writ
petition as regards regularization of service would require detailed investigation into the
facts. The court directed petitioner to approach the State Govt. with a claim of
regularization first.

In the case of Virender Singh Negi v. State of U.P 47 it was held that as the writ
petition was filed for protection in hilly areas in Dehradun, the Court directed to file
case before Allahabad High Court. SC directed the cases for violation of human rights
to be filed before National Human Rights Commission — Upendra Baxi v. State of
U.P .48 The SC directed NHRC in cases where it feels that directions of apex Court
were essential, it can approach it as held in NHRC v. State of Arunachala Pradesh.49

No Direct Place u/a 32

Following are the cases in which the Court has disallowed the maintainability of
petition for relief -
In the case of Bhisham Das v. State of Punjab50 it was held that writ petition as
regards regularization of service would require detailed investigation into the facts.
The court directed petitioner to approach the State Govt. with a claim of
regularization first.
In the case of Virender Singh Negi v. State of UPS I it was held that as the writ petition
was filed for protection in hilly areas in Dehradun, the Court directed to file case
before Allahabad High Court.

47 AIR 1954 SC 447

48 AIR 1987 SC 191
49 (1996) I SCC 742
50 AIR 1961 SC 1590
51 AIR 1954 SC 447

24
 SC directed the cases for violation of human rights to be filed before National Human
Rights Commission — Upendra Baxi v. State of U.P 52 The SC directed NHRC in
cases where it feels that directions of apex Court were essential, it can approach it as
held in NHRC v. State of Arunachala Pradesh.53
Disputed question of facts is no bar to entertain writ petition
of certiorari against HC order — In Naresh Shridhar v. State of Maharashtra, 54
petitioner directed by HC not to report proceeding of the case. The petitioner filed
petition u/a 32 challenging violation of his Fundamental Rights. SC said petition
under Art. 32 is not maintainable but the petitioner could go in appeal if desired.

______________________________

52 AIR 1987 SC 191

53 (1996) I SCC 742
54 AIR 1967 SCI

24
 CHAPTER - 3

LIMITS OF JUDICIAL APPROACH

There are following limits of judicial approach which concludes such as:

3.1AGAINST WHOM A WRIT CAN BE ISSUED

Individual needs constitutional protection against the State. The rights which are
given to the citizens by way of Fundamental Rights as included in Part Ill of the
Constitution are a guarantee against State action as distinguished from violation of
such rights from private parties. Private action is sufficiently protected by the ordinary
law of land. In P.D. Shamdasani v. Central Bank of India, 55 the petitioner, in an
application under Article 32 of the Constitution, sought the protection of the Court on
the ground that his property right under Articles 19 (l) (t) and 31 were infringed by the
action of another private person the Central Bank of India. The Supreme Court
dismissed the petition.
Fundamental Rights are enforceable against the State. The term state' has been
defined in Art.12. According to Art. 12, the term 'State' includes-
i. The Government and Parliament of India,
ii. The Government and the Legislature of a State.
iii. All local authorities; and
iv. Other authorities within the territory of India, or under the control of the
Central Government.

55
AIR 1952 SC 59

25
 The actions of any bodies comprised within the term 'State' as defined in Art. 12 can
be challenged before the courts under Art. 13(2) on the ground of violating
Fundamental Rights.

The most significant expression used in Art. 12 is "other authorities." This expression
is not defined in the Constitution. It is for the Supreme Court, as the 'Apex Court' to
define this term. The wider the meaning attributed to the term "other authorities" in
Art. 12, wider will be the coverage of the Fundamental Rights i.e. more and more
bodies can be brought within the discipline of the Fundamental Rights.

Today's government performs a large number of functions because of the prevailing

philosophy of a social welfare state. The government acts through natural persons as
well as juridical persons. Some functions are discharged through the traditional
governmental departments and officials while some functions are discharged through
autonomous bodies existing outside the departmental structure, such as, companies,
corporations etc. While the government acting departmentally, or through officials
falls within the definition of 'state' under Art. 1256 doubts have been cast as regards the
character of autonomous bodies whether they could be regarded as authorities' under
Art. 12 and, thus, be subject to Fundamental Rights.

An autonomous body may be a statutory body, i.e., a body set up directly by a statute,
or it may be a non-statutory body, i.e., a body registered under a.general law, such as,
the Companies Act, the Societies Registration Act, or a State Co-operative Societies
Act, etc. Questions have been raised whether such bodies may be included within the
coverage of Art. 12. For this purpose, the Supreme Court has developed the concept
of an "instrumentality" of the state. Anybody which can be regarded as an
instrumentality" of the state falls under Art. 12. In Rajasthan State Electricity Board v.
Mohanlal,57 the Supreme Court ruled that a State electricity board, set up by a statute,
having some commercial functions to discharge, would be an 'authority' under Art. 12.

__________________________
55 K.A. Karim & sons v. ITO. 1983 Tax L.R 1168
56 AIR 1967 SC 1857 : (1967) 3 SCR 377.
26
 The Court emphasized that it is not material that some of the powers conferred on the
concerned authority are of commercial nature.
This is because under Art. 298, the government is empowered to carry on any trade or
commerce. Thus, the Court observed: "The circumstance that the Board under the
Electricity Supply Act is required to carry on some activities of the nature of trade or
commerce does not, therefore give• any indication that the Board' must be excluded
front the scope word 'state' is used in Art. 12."In Sukhdev v. Bhagalram, 8 three
statutory bodies, viz. Life Insurance Corporation, Oil and natural Gas Commission
and the Finance Corporation, were held to be "authorities.

The question was considered more thoroughly in Ramanna D. Shelly v. International

Airport Authority" The International Airport Authority, a statutory body, was held to
be an 'authority' The Supreme Court also developed the general proposition that an
'instrumentality' or 'agency of the government would be regarded as an 'authority' or
'state' within Art. 12 and laid down some tests to determine whether a body could be
regarded as an instrumentality or not.ln several cases hitherto, a government company
incorporated under the Indian Companies Act had been held to be not an authority'
under Art. 12. In Sabhaji Tewary v. India, 60 the Supreme Court ruled that the Indian
Council of Scientific Research, a body registered under the Societies Registration Act
(thus a non-statutory body), but under a good deal of governmental control and
funding, was not a 'state

In Som Prakash v. Union of India,61 the company was held to fall under Art. 12. The
Court emphasized that the true test for the purpose whether a body was an 'authority'
or not was not whether it was formed by a statute, or under a statute, but it was
"functional". In the instant case, the key factor was "the brooding presence of the state
behind the operations of the body, statutory or other" In this case, the body was semi-
statutory and semi-non-statutory.

58 AIR 1975 SC 1331 • (1975) I SCC 421

59 AIR 1979 SC 1628 : (1979) 3 SCC 489 60 AIR 1975 SC 1329 (1975) I SCC 485.
60 AIR 1981 SC 212 : (1981) I SCC 449.
61 Ajay Hasia v. Khalid Mujib, AIR 1981 SC 487; (1981) I SCC 722.
27
It was non-statutory in origin (as it was registered); it also was recognized by the Act
in question and, thus, had some "statutory flavor" in its operations and functions.
In this case, there was a formal transfer of the undertaking from the Government to a
government company.

The question regarding the status of a non-statutory body was finally clinched in Ajay
Hasia, 62 where a society registered under the Societies Registration Act running the
regional engineering college, sponsored, supervised and financially supported by the
Government was held to be an authority' Money to run the college was provided by
the State and Central Governments. State Government could review the functioning of
the college and issue suitable instructions if considered necessary. Nominees State
and Central Governments were members of the society including its Chairman. The
Supreme Court ruled in the instant case that where a corporation is an instrumentality
or agency of the government, it must be held to be an authority under Art. 12. "The
concept of instrumentality or agency of the government is not limited to a corporation
created by a statute but is equally applicable to a company or society Thus, a
registered society was held to be an 'authority' for the purposes of Art. 12. Ajay Hasia
has initiated a new judicial trend, viz., that of expanding the significance of the term
"authority".

The Supreme Court laid down the following tests to adjudge whether a body is an
instrumentality of the government or not
1. If the entire share capital of the body is held by the government, it goes a long
way towards indicating that the body is an instrumentality of the government.
2. Where the financial assistance given by the government is so large as to meet
almost entire expenditure of the body, it may indicate that the body is impregnated
with governmental character.
3. It is a relevant factor if the body enjoys monopoly status which is conferred or
protected by the state.
4. Existence of deep and pervasive state control may afford an indication that the
body is a state instrumentality.
5. If the functions performed by the body are of public importance and closely
related to governmental functions, it is a relevant factor to treat the body as an
instrumentality to the government.
28
The Court, however, cautioned that these tests are not conclusive or clinching but that
they are merely 'indicative indicia' which have to be used with care and caution Thus,
it is now established that not only a department of the government, but even an
instrumentality of the government falls under Art. 12.

A general proposition may now be stated thus: a body whether statutory or non-
statutory (statutory corporations. registered societies, government companies or any
other like entity), whether exercising functions of a commercial or non-commercial
nature, will be regarded as an authority' and hence 'state' under Art. 12 if it can be
regarded as an 'instrumentality' of the government.

Besides Art. 12, the word 'Authority' also occurs in Art. 226. There has been a
question for the consideration of the courts whether the term authority in Art 226
ought to be interpreted in the same narrow sense as in Art. 12, or more broadly than
that. After much confusion of thought and several conflicting judicial dicta, the
position as it has emerged now seems to be that Art. 12 is relevant only for purposes
of Art. 32 under which Supreme Court can issue a writ only for purposes of
enforcement of Fundamental Right.

Whether judiciary is a State — The judiciary though not expressly mentioned in

Article 12 should be included within the expression 'other authorities' since Copurts
are set up by statute and exercise power conferred by law. Discrimination may be
brought about even by judiciary. The question whether the judiciary was included
within the definition of 'the State' in Article 12 arose for consideration of the Supreme
Court in Naresh v. State of Maharashtra. 63 It was held that even if a Court is the State
a writ under Article 32 cannot be issued to a High Court of competent jurisdiction
against its judicial orders, because such orders cannot be said to violate the
Fundamental Rights. Mr. H M. Seervai is of opinion that the judiciary should be
included in the definition of the State' and a judge acting as a judge is subject to the
writ-jurisdiction of the Supreme Court. In view of the judgment of 7 Judges Bench of
the Supreme Court in A.R. Antulay v. R.S. Nayak,64 where it has been held that the
Court cannot pass an order or issue a direction which would be violation of
Fundamental Rights of citizens, it can be said that the expression "State" as defined in
Article 12 of the Constitution includes judiciary also. There are a few Fundamental
Rights, such as, under Arts 17, 21, 23 or 24 which are also available against private

29
 persons. In case of violation of any such right, the court can be make appropriate
orders against violation of such rights by private persons.

In Indian Council for Enviro-Legal Action v. Union ofIndia,65 the Supreme Court has
held that if by the action of private corporate bodies, a person's Fundamental Right is
violated the Court would not accept the argument that it is not 'State' within the
meaning of Art. 12 and therefore, action cannot be taken against it.

62 AIR 1967 SC l.
63 AIR 1988 SC 1531
64 (1996) 3 SCC 212

31
 3.2WHO CAN APPLY FOR A WRIT

Art. 32 does not prescribe the persons or classes of persons who can invoke the
Supreme Court's jurisdiction for the redressal of their grievances. The matter of
'standing' thus lies within the realm of the Supreme Court. The general principle is
that a person whose Fundamental Right has been infringed has locus stand to move
the Supreme Court under Art. 32 for the enforcement of his fundamental right. A
person whose Fundamental Right is affected has standing to file a petition under Art.
32.

The legal right which has to e enforced under Art. 32 must ordinarily be the right of
the petitioner himself. As rights are different in different legal entities, it is not
competent to a person to seek to enforce the rights of another except when the law
permits him to do so66. This principle emanates from the theory that the remedies and
rights are correlative and, therefore, only a person whose own right is in jeopardy is
entitled to seek a remedy. Since a corporation has a distinct legal personality of its
own, with rights and duties separate from those of its individual members, a
shareholder cannot complain against a law which affects the Fundamental Right of the
corporation except to the extent that it infringes his own Fundamental Right as well.
67
A well-known exception to this principle, however, is a petition for a writ of habeas
corpus which can be made not only by the person who is imprisoned or detained but
by any person, provided he is not a complete stranger, for liberating a person from an
illegal imprisonment. 68

The principle applicable to civil suits that all parties interested in the subject-matter of
the suit should be made parties, is not applicable to the petitions under Art. 32. If a
petitioner has a right to maintain the petition, his petition would not be thrown out and
relief refused to him merely because he has not made another person, having equal
right with him to maintain the petition, party thereto69.

66 G.C. College, Silchar v. Gauhati University, AIR 1973 SC 761

67 Chiranjit Lal v. Union of India, AIR 1951 SC 41
68 Sunil Batra v. Delhi Administration (Il), Alk 1980 SC 1579
69 Mahendralal Jaini v. State of Uttar Pradesh, AIR 1963 SC 1019

32
 Over a period of time, the Supreme Court has been taking a liberal view of locus
standi. Art. 32 confers a good deal of freedom on the Supreme Court to evolve its own
rules of locus standi. The Court realizes that if a narrow view of locus standi is taken,
and if the categories of persons who can challenge governmental action are confined
with narrow limits, then the danger is that many governmental actions may go
unchallenged as there may be none entitled to challenge such action.

The movement towards broader standing to invoke judicial review is justified by the
argument that the great expansion in the power of the bureaucracy has increased the
need for judicial supervision which involves lowering the barriers in the way of
invoking judicial review. Thus, in A.B.S.K. Sangh (Rly.) v. Union of India,70 the
Supreme Court overruled the objection that an unrecognized association cannot file a
petition under Art. 32. Whether the petitioners belong to a recognized union or not,
the fact remains that a large body of persons with a common grievance exist and they
have approached the Supreme Court under Art.32. The Fertilizer Corporation, a
government company, proposed to sell some old machinery. The labour union filed a
petition under Art. 32 in the Supreme Court challenging the sale. The Court conceded
legal standing to the union to file the petition. A worker clearly has interest in the
industry and so he will have standing to challenge any wrong doing by the
management. CHANDRACHUD C.J., emphasized that in appropriate cases, it might
become necessary to take a broader view of the question of locus standi to initiate
proceeding. "If public property is dissipated, it would require a strong argument to
convince the Court that a section of the public which is directly interested and
affected would have no right to complain of the infraction of public duties and
obligations"

KRISHNA IYER, J., in a separate opinion explicitly advocated liberalization of the

locus standi to meet the challenge of times. If a plaintiff with a good case is turned
away merely because he is not sufficiently affected personally, that means that some
government agency is left free to violate the law, and this is contrary to public
interest.

_____________________________________

70 AIR 1981 SC 298

33
While the union had locus standi to file the petition in the ultimate analysis the petition
was dismissed on merits.71
The Supreme Court takes a liberal view of locus standi to file a writ petition under
Art.32. The concept of locus standi has been very much expanded and the Supreme
Court has come to adopt a flexible view on the question of a person's entitlement to tile
a writ petition to challenge an executive order as ultra vires. This is supported by
Jayaraj where the Supreme Court proceeded to consider the question on its merits
whether an order made by the Excise commissioner was legal or not without going into
the question whether the petitioner challenging the order had locus standi to do so or
not with the remark that if the impugned order: was a violation of law " we do not wish
to nip the motion out solely on the ground of locus standi". If the executive had no
authority to pass the order impugned, "it would be improper to allow such an order to
remain alive and operative on the sole ground that the person who filed the writ petition
has strictly no locus standi"

It is not necessary that the victim of the violation of the Fundamental Rights should
personally approach the Court for redress as the Court can itself take cognizance of the
matter and proceed suo motu, or on a petition filed by any public spirited individual.

71 Fertilizer Corp. Kamgar v. Union of India, AIR 1981 SC 344.

72 M.S. Jayaraj v. Commr. of Excise, Kerala (2000) 7 SCC 552

34
 3.3 PROCEDURE UNDER ARTICLE 32

The Supreme Court Rules, 1966

Applications for enforcement of Fundamental Rights
l. (l) Every petition under article 32 of the Constitution shall be in writing and
shall be heard by a Division Court of not less than five Judges provided that a petition
which does not raise a substantial question of law as to the interpretation of the
Constitution may be heard and decided by a Division Court of less than five Judges,
and, during vacation, by the Vacation Judge sitting singly.
(2) All interlocutory and miscellaneous applications connected with a petition
under article 32 of the Constitution, may be heard and decided by a Division Court of
less than five Judges, and, during vacation, by the Vacation Judge sitting singly,
notwithstanding that in the petition a substantial question of law as to the
interpretation of the Constitution is raised.
2. No Court-fees shall be payable on petitions for habeas corpus or other
petitions under article 32 of the Constitution arising out of criminal proceedings, or in
proceedings connected with such petitions.
3. A petition for a writ of habeas corpus shall be accompanied by an affidavit by
the person restrained stating that the petition is made at his instance and setting out the
nature and circumstances of the restraint.
Provided that where the person restrained is unable owing to the restraint to make the
affidavit, the petition shall be accompanied by an affidavit to the like effect made b)
some other person acquainted with the facts, which shall state the reason why the
person restrained is unable to make the affidavit.
The petition shall state whether the petitioner has moved the High Court concerned
for similar relief and if so, with what result.
4. The petition shall be posted before the Court for preliminary hearing, and if
the Court is of the opinion that a prima facie case for granting the petition is made out,
rule nisi shall issue calling upon the person or persons against whom the order is
sought, to appear on a day to be named therein to show cause why such order should
not be made and at the same time to produce in Court the body of the person or persons
alleged to be illegally or improperly detained then and there to be dealt with according
to law.

35
5. On the return day of such rule or any day to which the hearing thereof may be
adjourned, if no cause is shown or if cause is shown and disallowed, the Court shall
pass an order that the person or persons improperly detained shall be set at liberty. If
cause is shown and allowed, the rule shall be discharged. The order for release made by
the Court, shall be a sufficient warrant to any gaoler, public official, or other person for
the release of the person under restraint.
6. In disposing of any rule, the Court may in its discretion make such order for
costs as if may consider just.
7. A petition for a direction, or order, or writ including writs in the nature of
mandamus, prohibition, quo-warranto or certiorari shall set out the name and
description of the petitioner, the nature of the fundamental right infringed the relief,
sought and the grounds on which it is sought and shall be accompanied by an affidavit
verifying the facts relied on and at least seven copies of the petition and affidavit shall
be lodged in the Registry. The petition shall also state whether the petitioner has
moved the High Court concerned for similar relief and, if so, with what result.
8. The petition shall be posted before the Court for preliminary hearing and
orders as to the issue of notice to the respondent. Upon the hearing, the Court, if
satisfied that no fundamental right guaranteed by the Constitution has been infringed or
that the petition is otherwise untenable, shall dismiss the petition and if not so satisfied,
shall direct a rule nisi to issue the respondent calling upon him to show cause why the
order sought should not be made, and shall adjourn the hearing for the respondent to
appear and be heard.
If the Court, on preliminary hearing, orders issue show cause notice to the
Respondent, he shall have entitled to file his objections within days from the date of
receipt of such notice or not later than 2 weeks before the date appointed for hearing,
whichever be earlier.
9. Upon making the order for a rule nisi, the Court may, if it thinks fit, grant such
ad interim relief to the petitioner as the justice of the case may require, upon such
terms if any as it may consider just and proper.
10. (l) Unless the Court otherwise orders, the rule nisi together with a copy of the
petition and of the affidavit in support thereof shall be served on the respondent not
less than twenty-one days before the returnable date. The rule shall be served on all
persons directly affected and on such other persons as the Court may direct.

39
(2) Affidavits in opposition shall be filed in the Registry not later than four days
before the returnable date and affidavits in reply shall be filed within two days of the
service of the affidavit in opposition.
(3) Within four weeks of the filing of the pleadings, the petitioner shall file
written brief prepared in the following manner, namely -
(a) At the outset, the brief shall contain a short summary of the pleading
essential for the decision of the points in issue. This shall ordinarily not exceed
two pages;
(b) Thereafter, the petitioner shall formulate propositions of facts and law
that are proposed to be advanced at the hearing citing under each of those
propositions, authorities including text books, statutory provisions, regulations,
ordinances or bye-laws or order that are desired to be relied upon. In the case of
decisions, reference shall be given to official reports, if available. In the case of
text books reference shall, if possible, be given to the latest edition. Where any
statute, regulation, rule or ordinance or bye-law is cited or relied upon, so much
thereof as may be necessary for the decision of the points in issue shall be set
011'.
(4) Within tour weeks of service of' the petitioner 's written brief on him, the
contesting respondent shall file his written brief setting out briefly the grounds on the
basis of which he is opposing each of the propositions formulated by the petitioner.
Under each of those grounds he shall cite such authorities as he may seek to rely in the
Sallie manner as the petitioner is required to do under sub-rule (3). In his written brief,
the respondent may raise objections as to the maintainability or sustainability of either
the petition as a whole or any relief claimed therein in the form of propositions,
supported by authorities in the manner mentioned earlier.
(5) Within one week of the receipt of the brief filed by the respondent, the
petitioner may submit his reply brief which shall be concise and to the point in respect
of the points raised in the respondent's brief.
(6) Copies of affidavits and briefs required to be filed under this rule shall be
served on the opposite party or parties and the affidavits or brief shall not be accepted
in the Registry, unless they contain an endorsement of service signed by such party or
parties. Every party to the proceeding shall supply to any other party on demand and
on payment of the proper charges, copies of any affidavit or brief filed by him. At
least seven copies of affidavits and briefs shall be lodged in the Registry.

40
(7) If the Court considers any of the propositions formulated or grounds taken by
any of the parties in the written briefs filed as being irrelevant of frivolous the Court
may award against such party or parties such costs as the Court may consider fit.
(8) At the hearing of rule nisi, except with the special permission of the Court, no
party shall be allowed to advance any proposition or urge any ground not taken in the
written briefs, nor shall be allowed to rely on any authorities (including provisions of
statute, rule, bye-law, regulation or order) other than those mentioned in the briefs,
unless. such authorities or provisions have been published or made after the written
briefs were filed into Court.
(9) At the hearing of rule nisi, if the Court is of the opinion that an opportunity be
given to the parties to establish their respective cases by leading further evidence, the
may take such evidence or cause such evidence to be taken In such manner as it
may deem fit and proper.
(10) No party to a petition under this rule shall be entitled to be heard by the Court
unless he has previously lodged his written brief in the petition.
(11) The provisions contained in rules [l to 101 respectively of Order XVIII
relating to petitions shall, so far as may be applicable, apply to petitions under this
Court.

41
 3.4 RELIEF UNDER ARTICLE 32
The phraseology of Art. 32(2) is very broad. There under the Supreme Court is
authorized to
issue orders, directions, or writs, Including' writs, In the nature of' mandamus,
certiorari, prohibition, quo warranto and habeas corpus. Under Art. 32, the Supreme
Court may issue not only the specified writs but also make any order, or give any
directions as it may consider appropriate in the circumstance of the case, to give
proper relief to the petitioner. The Court can grant declaration or injunction as well if
that be the proper relief The Court can mould relief to meet the exigencies of the
specific circumstances.73
What is the appropriate remedy to be given to the petitioner for the enforcement of his
Fundamental Right is a matter for the Court to decide? In the words of the Court74.
"The jurisdiction enjoyed by this Court under Art. 32 is very wide as this Court, while
conceding a petition for the enforcement of any of the Fundamental Right and declare
an Act to be ultra-virus or beyond the competence of the legislature. The petition
cannot be thrown out merely because he has not prayed for a proper writ or direction.
While issuing writs, the Court is not bound to follow all the technicalities which
surround these writs in Britain. The power of the Supreme Court is not restricted to
the five writs specifically mentioned in Art.32(2). This is because of two reasons, viz.:
(l) The power of the Court is 'inclusive
(2) The Court has power to issue writs "in the nature of" the specified five writs.
The means that the Court has flexibility in the matter of issuing writs.
The Court has explained the position in M.C Mehta v. Union of India75
This Court under Art.32(l) is free to devise any procedure appropriate for the
particular purpose of the proceeding namely, enforcement of a Fundamental Right and
under Art.32(l) the Court has the implicit power to issue whatever direction, order or
writ is necessary in a given case, including all incidental or ancillary power necessary
to secure enforcement of the Fundamental Rights"

73 Golaknath v. state of Punjab, AIR 1967 SC 1643.

74 Bodhisatwa v. Subhra Chakraborty, AIR 1996 SC 922, 926
75 AIR 1987 SC 1086, 109

42
 DAMAGES/COMPENSATION

In course of time, the Supreme Court has given a new dimension to Art. 32 and has
implied therefrom the power to award damages/compensation when a Fundamental
Right of a person has been infringed and there is no other suitable remedy available to
give relief and redress in the specific situation for the injury caused to the petitioner.
The Court has argued that under Art. 32, its power is not only injunctive in ambit, that
is, preventing the infringement of a Fundamental Right, but it is also remedial in
scope. Therefore, the Court cannot only in violation of a Fundamental Right but also
give relief when the right has already been violated. The Court has maintained that in
the absence of such a power, Art.32 would be robbed of all its efficacy and rendered
futile and become impotent. Therefore, a person can seek remedial assistance under
Art. 32 when his Fundamental Right has been violated. As the Court has pointed out
in the case noted below76

"It is in the matter of enforcement of Fundamental Right that the Court has the right to
award damages to compensate the loss caused to a person on account of violation of
his Fundamental Rights"

This, indeed, is a major contribution made by the Supreme Court towards the
protection of Fundamental Rights against undue interference by administrative
authorities, as situations may arise when only compensation could provide some relief
to the affected person and no writ or order could fill the bill. For example, in Rudul
Sah v. State of Bihar 77, in a writ petition for habeas corpus, the Court awarded
damages to the petitioner against the State for breach of his right of personal liberty
guaranteed by Art. 21 as he was kept in jail for 14 years even after his acquittal by a
criminal court. The fact situation revealed "a sordid and disturbing state of affairs" for
which the responsibility lay squarely on the Administration. The Court felt that not
awarding

76 Common Cause, A Registered Society v. Union of india AIR 1999 SC 2979

77 AIR 1983 SC 1086

43
 damages in the instant case would "be doing merely lip service to the Fundamental
Right to liberty which the State Government has so grossly violated".ln Bodhisatlwa
Gautam v. Subhra Chakraborty 78 the Supreme Court awarded an interim
compensation to the woman raped. The rapist was directed to pay Rs.1000/- pm to the
concerned woman pending the criminal case against him.
A review of the cases show that the Court has granted damages in the following
categories of cases
(l) where the petitioner has suffered personal injuries at the hands of governed
servants by their tortuous acts;4
(2) police atrocities,.80
(3) custodial deaths; 81
(4) medical negligence;5
(5) Environmental pollution.6
In cases of environmental pollution, the Supreme Court has advocated the principle of
polluter pays. On the question of award of damages for environmental pollution, the
Supreme Court has observed in M.C. Mehta v. Kamal Nath 7 that pollution being a
civil wrong against the community as a whole, the Supreme Court has power under
Art. 32 to award compensation to the victims of pollution in a writ petition under Art.
32 against a person causing pollution. The damages may fall under the following
heads: (i) damages for restoration of the environment and ecology; (ii) damages to
those who may have suffered loss on account of the act of pollution; (iii) exemplary
damages so that other people are deterred from causing environmental pollution.
But the Court cannot impose fine on the polluter under Art. 32. That can be done only
through a criminal prosecution of the polluter under the relevant law.
The principle of awarding damages for breach of' Fundamental Rights has been
recently reiterated by the Supreme Court in Rabindra Nath Ghosal v. University of
Calcutta85.

79
Rudal Shah v. state of Bihar, AIR 1983 SC 1086
80 D.K. Basu v. state of West Bengal, AIR 1997 SC 610
81
Nilabati Behera v. State of Orissa, AIR 1993 sc 1960
82
Paschim Banga Khet Mazdoor Samity v. State of West Bengal, AIR 1996 sc 2426
83
M.C. Mehta v. Union of India (2001) 9 SCC 520
84
AIR 200 SC 1997
"The Courts having the obligation to satisfy the social aspiration of the citizens have
to apply the tool and grant compensation as damages in a public law proceedings
consequently when the Court moulds the relief in proceedings under Articles 32 and
226 of the Constitution seeking enforcement or protection of Fundamental Rights and
grants compensation, it does so under the public law by way of penalizing the
wrongdoer and fixing the liability for the public wrong on the state which has failed in
its public duty to protect the Fundamental Rights of the citizens."
In DK Basu v. State of West Benga186, the Supreme Court accepted that
compensation can be awarded to the victims of torture in police custody. Kin the
instant case, the Supreme Court granted compensation for the custodial death of a
person as this was held to be an infringement of Art.21.
 GENERAL DIRECTIONS
while the basic purpose underlying Alt. 32 is to empower the Supreme Court to give
relief to an aggrieved person whose Fundamental Right has been infringed, the Court
has used Art. 32 for a much wider purpose than that, viz., to lay down general
guidelines having the effect of law to fill the vacuum till such time the legislature
steps in to fill in the gap by making the necessary law The Court derives such a power
by reading Art. 32 with Art. 142 and Art. 141. Art. 144 mandates all authorities to act
in aid of the Court orders.

The Court has stated in Visakha87 that it is the duty of the executive to fill the
vacuum by executive orders because its field is coterminous with that of the
legislature. And where even the executive does not act, the judiciary must step in, in
exercise of its constitutional obligation under the abovementioned constitutional
provisions to provide a solution till the legislature acts to perform kits role by enacting
a proper legislation to cover the field. In the instant case, to deal with the problem of
sexual harassment of women at work place, the court issued guidelines to be
observed' in all work places until suitable legislation is enacted to occupy the field.
In Union of India v. Association for Democratic Reforms 88, the Supreme Court
issued certain directions to the Election Commission. Justifying this, the Supreme
Court observed

It is not possible for this court to give any directions for amending the Act or the
statutory Rules. It is for Parliament to amend the Act and the Rules. It is also
established law that no direction can be given, which would be contrary to the Act and
the Rules. However, it is equally settled that in case when the Act or Rules are silent
on a particular subject and the authority implementing the same has constitutional or
statutory power to implement it, the court can necessarily issue directions or orders on
the said subject to fill the vacuum or void till the suitable law is enacted.

87 AIR 1997 SC 301 1

88 (2002) 5 scc 294, 309

44
The court has asserted that where there is inaction by the executive, for whatever
reason, court must step in, in exercise of its constitutional obligations to provide a
solution till such time, the legislature acts to perform its role by enacting proper
legislation to cover the field.
If necessary the court can issue directions, in an appropriate case, even to private
persons for the enforcement of the petitioner's IA fundamental Rights.89
The Court has issued guidelines and directions in quite a few cases. Some of these
cases are
(l) Lakshmi Kant Pandey v. Union of India90 where guidelines for adoption of minor
children by foreigners were laid down.
(2) Supreme Court Advocates-On-Record Association v. Union of India, where the
Supreme Court laid down guidelines and norms for the appointment and transfer of
High Court Judges.

The directions issued by the Supreme Court under Art. 32 have the force of law.
These directions remain in force till the legislature enacts a suitable law. The general
directions issued by the court are, thus, quasi-legislative kin nature for they bind not
only the parties to the specific dispute before the court but even others.

89 Consumer Education & Research Centre v. Union of India, AIR 1995 SC 922.
90
AIR 1984 SC 464
90 (1993) 4 scc 441

45
 Chapter -4
Writs Jurisdiction

Generally, there are five types writs Habeas Corpus, Mandamus, Certiorari,
Prohibition, Quo Warranto. Both the courts have power to issues any writs in case of
violation of fundament?' rights. But there is slight variation in their powers to issues
writs in case of violation of fundamental right.

5.1 Writ jurisdiction of Supreme Court:

The Supreme Court has original, appellate and advisory jurisdiction. However, Article
320f the Indian Constitution gives an extensive original jurisdiction to the Supreme
Court in regard to the enforcement of Fundamental Rights.
Article 32 -Remedies for enforcement of rights conferred by this Part
l. 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 (I)
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.
This article describes the last of the Fundamental Rights, it is remedial and not
substantive in nature. But it is in no way less important than the other rights. Just as
the remedy of habeas corpus is called the bulwark of liberties in England, this Article
has been called the heart and soul of the Constitution. In the words of Dr.
Ambedkar;92
.

46
 "If 1 was asked to name any particular article in this Constitution as the most
important — an article without which this Constitution would be a nullity — could
not refer to any other article except this one. It is the very soul of the Constitution and
the very heart of it." The right to take proceedings by original petition straight in the
Supreme Court for the enforcement of the Fundamental Rights is guaranteed. The
right to move the Supreme Court is itself a guaranteed right and the significance of
this has been assessed 93 by Gajendragadkar, J. as

"The Fundamental Right to move this Court can therefore be appropriately described
as the cornerstone of the democratic edifice raised by the Constitution." That is why it
is natural that this Court should, regard itself "as the protector and guarantor of
Fundamental Rights" and should declare that "it cannot, consistently with the
responsibility laid upon it, refuse to entertain applications seeking protection against
infringements of such rights"

In discharging the duties assigned to it, this Court has to play the role of a 'sentinel on
the qui vive' as held in State ofMadras v. V.G. Row. 94 and it must always regard it as
its solemn duty to protect the said Fundamental Rights 'zealously and vigilantly' as
held in Daryao v State of U.P

91 Constituent Assembly Debates, Vol. VII, page 953.

92 Prem Chand Garg v. Excise Commissioner, U.P. AIR 1963 SC 996, 999.
93 1952 SCR 597, 605 AIR 1952 SC 196, 199.
94 (1962) I SCR 674, 582; AIR 1961 SC 1457, 1461.

52
 CLAUSE (1)
The right to move the Supreme Court guaranteed under clause (l) is subject to the
condition c: appropriate proceedings'. Article 32 (l) says : "The right to move the
Supreme Court by 'appropriate proceedings' for the enforcement of the rights
conferred by this part is guaranteed.
There is no freedom to move the Supreme Court by all sorts of proceedings but only
by appropriate proceedings'. Only those proceedings are appropriate which invoke, by
original petition, the jurisdiction of the Supreme Court to issue, according to the
nature of the case, writs or orders or directions of the types described in clause (2). In
Daryao v. State of U.P.96, the Supreme Court has said: “The expression 'appropriate
proceedings' has reference to proceedings which may be appropriate having regard to
the nature of order, direction or writ which the petitioner seeks to obtain from this
Court. The appropriateness of the proceedings would depend upon the particular writ
or order which he claims and it is in that sense that the right has been conferred on the
citizen to move this Court by 'appropriate proceedings' "

The Court has further clarified that "there is no limitation in regard to the kind of
proceedings envisaged in clause (l) of Article 32 except that the proceedings must be
'appropriate' and this requirement of appropriateness must be judged in the light of the
purpose for which the proceedings is to be taken, namely, enforcement of a
Fundamental Right„ 97 The word appropriate' does not refer to any form but to the
purpose of the proceeding and therefore so long as the purpose of the proceeding is
enforcement of a Fundamental Right, it is appropriate and when it relates to the
enforcement of the Fundamental Rights of poor, disabled or ignorant by a public
spirited person "even a letter addressed by him to the Court can legitimately be
regarded as an 'appropriate proceeding' 98 The letter need not be in any particular
form nor need it be addressed to the Chief Justice or to the Court.

______________________________________
96
AIR 1961 SC 1457, 1461
97
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 AR 1984 SC 802,
813-14.
98
M.c. Mehta v. Union of India (1987)1 SCC 395

53
Accordingly letters in any form including postcards and telegrams addressed to any
judge have been entertained as appropriate proceedings. But once the proceedings
have been initiated parties cannot be allowed to address letters directly to judges. To
facilitate this epistolary proceeding a Public Interest Litigation cell has been opened in
the Supreme Court to which all letters addressed to the Court or individual judges are
forwarded which are placed before the Chief justice after scrutiny by the
staff attached to the cell. Moreover, appropriate proceedings need not be adversary
proceedings; they can be inquisitorial proceedings also." The Court has rather
emphasised that the Court and the State must act in collaboration and cooperation in
enforcing the Fundamental Rights. The Court may entertain a petition even if it is
vague.

Though the petitioner has Fundamental Right under Article 32 (l) to move the
Supreme Court by appropriate proceedings for enforcement of any of his
Fundamental Rights guaranteed under Part Ill and the Supreme Court is bound under
Article 32 (2) to issue appropriate direction, order or writ for enforcement of such
Fundamental Right, there is no obligation on the Supreme Court t. give any particular
kind of remedy to the petitioner. What should be the appropriate remedy to be given
to the petitioner for the enforcement of the Fundamental Right is a matter for the
Court to decide under Article 32 (2). Whenever the Fundamental Rights are flouted or
legislative protection ignored to any citizen's prejudice, the Court will give
appropriate relief. Thus if a prisoner's Fundamental Right is flouted or legislative
protection ignored, the Court's writ will run breaking through stone walls and iron
bars to right the wrong and restore the rule of law.

99
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161
100
Chiranjit Lal Chowdhury v. Union of India AIR 1951 SC 41
101
Prem Chand Garg. v. Excise Commissioner, U.P. AIR 1963 SC 996

54
Ordinarily under Article 32 the Court does not enter into questions of fact but it may
do so if it finds it necessary in appropriate cases. Article 32 of the Constitution gives
the Supreme Court very wide discretion in the matter of framing writs to suit the
exigencies of particular cases and the application of the petitioner cannot be thrown
out simply on the ground that the proper writ or direction has not been prayed for.100
The right conferred under Article 32 being a Fundamental Right cannot be abrogated,
abridged or taken away by an act of the legislature unless the Constitution itself is
amended. It has accordingly been held that a law which has the effect of retarding the
ascertain of the Fundamental Right of the petitioner would be unconstitutional. For
this reason, the Supreme Court struck down the rule of the Court which required the
petitioner to furnish security as a condition precedent to the hearing of the petition,
since it would impose a financial obligation on the petitioner and if he is not able to
comply with it, his petition would fail. 101 But rules which govern the practice and
procedure in respect of the petitions under Article 32 with the object of aiding and
facilitating the Orderly course of their presentation and further progress until their
decision cannot be said to contravene Article 32. It may be noted that the protection of
Article 32 may not be denied even by amendment of the Constitution because this
article constitutes basic structure of the Constitution which cannot be changed even by
an amendment under Article 368.

55
 CLAUSE (2)
Clause (2) empowers the Supreme Court to issue directions or orders or writs,
including the 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 Part Ill of the Constitution. The five writs specifically
mentioned in clause (2) are known as the prerogative writs in the English law. These
writs had their origin in the exercise of the King's prerogative power of
superintendence over the due observance of law by his officials and were issued by
the Court of King's Bench. They are specifically directed to persons or authorities
against whom redress was sought and in case of disobedience, were enforceable by
attachment for contempt. Being extraordinary remedies 1 they were issued whenever
urgent necessity demanded immediate and decisive interposition by the Court. 2 The
language of clause (2) is wide and does not confine the power of the Court to issuing
of prerogative writs only, nor does it compel the Court to observe all procedural
technicalities which had gathered round the prerogative writs in English law104
Although at one time the Court had held that in granting the extraordinary remedy
provided under clause (2). it will follow the broad and fundamental principles that
regulate the exercise of jurisdiction in the matter of granting writs in English law. 105
Later it clarified the, the power of granting writs is not confined to the five writs
specified in that clause nor need the power be exercised in the manner it is exercised
in England because firstly, the power is given in inclusive terms and secondly, it is
given to issue writs 'In the nature' of those specified but not exactly the same.
Therefore, even if the conditions for issue of any of the five prerogative writs are not
fulfilled, the Supreme Court may still issue a writ in an appropriate case.

Moreover the power of' the Supreme Court in clause (2) is not confined only to the
issuance of It extends to issuing of any directions or orders that may appropriate

102
Halsburys Laws of England, 4th Edn., vol. 11, para 1451
103
Election Commission of India v.S. Venkata Subba Rao, AIR
1953 SC 210
104 Rashid Ahmed v. Municipal Borad, Kairana, AIR 1950 SC
163.
105 T.c. Basappa v. T. Nagappa, AIR 1954 SC 440, 443.

56
for the enforcement of any of the Fundamental Rights. The power of' the Court is not
only injunctive in ambit, that is, preventing the infringement of a fundamental, but it
is also remedial in scope and provides relief against a breach of a Fundamental Right
already committed. In the exercise of that wide power, the Court has directed the State
to pay compensation and exemplary costs for the violation of Fundamental Rights; to
detain children below 16 only in Children's Home and not in Jail, to allow the
petitioner — a cancer patient — to visit her country against money security; to
faithfully enforce the labour laws in the interest of the deprived workmen; to pay
minimum wages to contract labourers ; to rehabilitate under-trial victims; to
rehabilitate under - trial victims; to follow principles and norms laid down by the
Court in the matter of adoption of Indian children by foreigners; to remove the
impediments in the enforcement of the judgement of the Court: to consider closely the
fixation of minimum age of superannuation; to observe the guidelines in the allotment
of cars; to provide better facilities to inmates of government protective home and
mental hospital; to preserve ecological balance; to resettle the tribal to be affected by
the construction of a dam; to release and rehabilitate bonded labourers; to submit
proposals for effective prevention and control of Ganga water and other kinds of
pollution; to hold eye camps according to standard medical guidelines; to remove a
garbage disposal centre from the vicinity of a place of worship; to set up all India
judicial service and for bringing uniform conditions of service for member of
subordinate judiciary throughout the country; to provide and facilitate environmental
awareness and education through public and private media and school curriculum to
rehabilitate and compensate the ousters of land acquired for setting up a thermal plant;
to provide Braille script or scribe to visually handicapped persons taking civil service
examination and also to provide preference or reservation for them in such services;

106
People's Union for Democratic Rights v. Union of India, (1982) 2 SCC 235
107
AIR 1982 SC 1473.
to direct the Reserve Bank of India to extend the reduced rate of interest on loans for
riot victims from any financial institution; to lay down broad guidelines for the
protection of domestic working women and for the protection of women against

57
sexual harassment at the work place; to take proper steps for providing suitable
chambers to the judges etc. Appropriate directions may also be given where a
Fundamental Right such as the one under Articles 17, 23 and 24 available against the
private persons is violated.
In respect of award of condensation, the Court has clarified that Article 32 is a public
law remedy and the limitation of sovereign immunity in Article 300 in respect of
private law remedies, is inapplicable to it. Such Compensation may, however, be
awarded only to the victim of violation of the Fundamental Rights, i.e. the person
whose Fundamental Rights have been violated. It cannot be ordered by the Court as
an exemplary punishment to an official or authority without a claim of loss arising
from the violation of Fundamental Rights of the petitioner by the act of such official
or authority. Article 32 provides a remedy against the violation of Fundamental
Rights and not a general remedy against all illegalities of the administration.
Therefore, in a public interest petition under Article 32, where the petitioner did not
claim any violation of its Fundamental Rights by the arbitrary action of a minister nor
did any other person came forward to make such a claim, Court's order to the minister
to pay exemplary damages to the Government of India was found beyond its
jurisdiction under that article. Though the compensation is awarded to the victim of
the violation of Fundamental Rights, in case the victim is a lunatic and has no known
relatives, the Court may also direct the State to make a donation to a non-
governmental protective home which will take care of the victim.

__________________________

107
Nilbati Behra v. State of Orissa, (1993) 2 SCC 746; Consumer Education &
Research Centre v. Union of India, (1995) 3 SCC 42.
108
Common cause, A Registered society v. Union of India, (1999) 6 SCC 667: AIR
1999 SC 2979
109
R.D. Upadhyay v. state of A.P., (2001) i SCC 437.

58
In case a Fundamental Right is available against private persons, Article 32 can be
availed of to enforce such right and even the remedy of compensation may be granted
against private persons. 110 Sometimes Article 32 has also been invoked in matters of
great public concern even though no violation of any Fundamental Right was
alleged.111
Again, Clause (2) does not lay down the procedure which the Court has to follow in
the enforcement of Fundamental Rights and granting the appropriate relief. It does not
mean that the Court can ignore all canons of judicial procedure and propriety, but
certainly it can devise appropriate procedures within the broad judicial parameters to
suit the enforcement of a Fundamental Right. The Court is not bound by the adversary
procedure envisaged in the Civil Procedure Code and the Evidence Act and can
devise inquisitorial or other suitable procedure to achieve the object and purpose of
Article 32. 112 Such an approach to Article 32 is more in consonance to our social
utility where a vast majority of people cannot properly fight out their claims due to
poverty, ignorance and other similar factors. It is for that reason that the Court has
evolved the practice of appointing commissions for the purpose of gathering facts and
data in regard to a complaint of breach of a Fundamental Right made on behalf of the
weaker sections of the society. The Court makes the report of the commission
available to the parties which can, on affidavit, challenge its veracity but cannot plead
that the report is inadmissible unless the commission is cross-examined. The Court
has also held that its wide power to devise its own. procedure under Article 32 cannot
be restricted or curtailed by any statute or even by the Supreme Court Rules.113

110
Bodhisattwa Gautam v. Subhra Chakrawarti, (1996) I SCC 490; AIR 1996 SC 922:
M.C. Mehta v. Kamal Nath, (2000) 6 SCC 213 AIR 2000 SC 1997.

Ill
D.C. Wadhwa v. state of Bihar, (1987)1 SCC 378: AIR 1987 SC 579
11 2
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, 188-89, AIR SC
802, 815.
113
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161, 190-91 AIR 1984
SC 802, 816-17

59
In sum, the Court has held that Article 32 does not merely confer power on it but also lays a
Constitutional obligation to protect the Fundamental Rights of the people and for that purpose
the Court has all incidental and ancillary powers including the power to forge new remedies
and fashion new strategies designed to enforce the Fundamental Rights. The remedy may be
both imposed, negotiated or quasi-negotiated. 1 14 The procedure, being merely a hand-maiden
of justice, should not stand in the way of access to justice. 115

Further, the Court has held that its power under Article 32 is plenary power which it can use
even for correcting its own mistakes. 1 16 The power can also be used for entrusting functions
on other bodies such as National Human Rights Commission. An order of the Court which
directs the National Human Rights Commission to conduct certain investigations, which it
could not conduct under the Protection of Human Rights Act, is therefore valid. 117

Enforcement of the Fundamental Rights — The jurisdiction vested in the Supreme Court is
exercisable only for the enforcement of the Fundamental Rights conferred by Part Ill of the
Constitution. Where is no question of the enforcement of a Fundamental Right, Article 32 has
no application? Thus no petition under Article 32 would lie where the right under Article 265
of the Constitution is claimed to be infringed, but no breach of a Fundamental Right is
alleged. For the same reason, the freedom of intra-State and inter-State trade or commerce
embodied in Article 301 is not a Fundamental Right conferred by Pan Ill of the Constitution.
and therefore, cannot be enforced by a petition under Article 32. In Nain Sukh Das v. State of
U.P.118, it was held that any right which the petitioner may have as the ratepayer in the
municipality to insist that the municipal board should be legally constituted, is outside the
preview of Article 32, as such right is not a Fundamental Right conferred by Part Ill of the
Constitution.

Sheela v. Union of India, (1988) 4 SCC 226, 233 AIR 1988 SC 2211.

115 M.c. Mehta v. Union of India, (1987) I SCC 395, 406, AIR 1987 SC 1086

116 Common Cause, A Registered Society v. Union of India, (1999) 6 SCC 667: AIR
1999 SC 2979. 117 Paramjit Kaur v. state of Punjab, (1999) 2 SCC 131

60
 However, a petition under Article 32 may be filed to challenge the validity of a law with
reference to provisions other than those involving Fundamental Rights provided it
inevitably causes a restriction on the enjoyment of Fundamental Rights. For example, a
tax law which is void because of legislative incompetency may restrict the Fundamental
Rights enshrined in Article 19 or 31. The validity or invalidity of the impugned law on
the ground of legislative incompetence should purport to infringe the Fundamental Rights
of the petitioner as a necessary condition of its being adjudicated. 1 19 There have been
some instances where no violation of any specific Fundamental Right was alleged and yet
the Supreme Court entertained a petition under Article 32. A petitioner's challenge under
Article 32 extends not only to the validity of a law but also to an executive order issued
under the authority or the law. Where a Fundamental Right is also available against the
private persons such as the rights under Article 17, 23 or 24, the Supreme Court can
always be approached for appropriate remedy against the violation of such rights by
private individuals.120

Territorial Jurisdiction — The powers of the Court under Article 32 are not circumscribed
by any territorial limitation. It extends not merely over every authority within the territory of
India but also those functioning outside provided such authorities are under the control of the
Government of India. But the power under Article 32 must be read in conjunction with
Article 142 of the Constitution. Article 142 brings in the limitation as regards the territory in
which the orders or directions of the Court could be enforced. Manifestly there is an anomaly
or a discordance between the power of the Supreme Court under Article 32 read with Article
12 and the excitability or enforceability of the orders under Article 142. In such a situation
much would depend on the nature of the authority under the control of the Government of
India but functioning outside the territory of India. If it was of an executive and
administrative nature,

118
AIR 1953 SC 384

119
D.A.V. College v. state of Punjab, (1971) 2 SCC: AIR 1971 SC 1737.

120
People's Union for Democratic Right v. Union of India, (1982) 3 SCC 235 AIR 1982
SC 1473, 1490-91

61
relief could be afforded to a petitioner under Article 32 by suitable orders against the
Government of India directing them to give effect to the decision of the Supreme Court by
the exercise of their powers of control over the authority outside the territory of India. 121

Quasi-Judicial authorities — An order made by a quasi-judicial authority with jurisdiction

under an Act which is intra vires is not liable to be questioned on the sole ground that the
provisions of the Act or the terms of the notification issued thereunder have been
misconstrued. In Ujjam Bai v. State of U.P. 122 the assessing authority acting within its
jurisdiction upon a misconstruction of statute which was intra vires, of a notification properly
issued thereunder, assessed the tax, and it was held that such an assessment cannot be
impugned as repugnant to Article 19(l)(f) and (g) on the sole ground that it was based on a
misconstruction of a provision of the Act and validity of such an order cannot be questioned
in a petition under Article 32. In such cases there is no breach of the Fundamental Right
because every wrong decision does not give rise to a breach of the Fundamental Right. Such
errors can be corrected only in appeal or revision if provided for. Resort can be had to the
provisions of Articles 226 and 227 of the Constitution in appropriate cases. But the above
rule of non-maintainability of a petition under Article 32 is subject to three exceptions:
Firstly, if the statute or a provision thereof is ultra vires, any action taken under such ultra
vires provision by a quasi-judicial authority which violates or threatens to violate a
Fundamental Right will give rise to the question of enforcement of that right and a petition
under Article 32 will lie. 123 Secondly, if a quasi-judicial authority acts without jurisdiction
or wrongly assumes jurisdiction by committing error as to a collateral fact and resultant
action threatens or violates a Fundamental Right, the question of enforcement of that right
arises and a petition under Article 32 will lie even if the statute is intra vires.124 Thirdly, if
the action taken by a quasi-judicial authority is procedurally ultra vires, a petition under
Article 32 would be competent. On these grounds decisions of the tribunals of Courts for
armed forces may also be reviewed by the Supreme Court under Article 32.

121
N. Masthan v. Chief Commissioner. Pondicherry, AIR 1963 SC 533.
122
AIR 1962 SC 1621.
123
Firm A.T.B. Mehtab Majid & Co. v. State Of Madras AIR 1963 SC 928
124
S.T.C. v.State of Mysore, Alk 1963 SC 558
125
Ujjam Bai v, state of U.P. Alk 1962 SC 1621

62
citizen under Article 19 of the Constitution. In Naresh Shridhar Mirajkar v. State126 Writ
against Courts — An adjudication order passed by a High Court cannot be attacked in a
proceeding under Article 32 on the ground that the order violates the Fundamental Rights of a
Maharashtra the question that came up for consideration before the Supreme Court was
whether a judicial order passed by the Bombay High Court prohibiting the publication of the
evidence of a witness in newspapers violated the Fundamental Rights under Article 19 (l) (a)
of the petitioners press who were strangers to the proceedings. The Supreme Court held that
no writ under Article 32 of the Constitution could be issued. Whether the conclusion of law
drawn by a judge of the High Court suffers from any infirmity can be concluded, considered,
and decided only in an appeal before the appellate Court. Judicial orders by themselves do
not violate Fundamental Rights. This applies as much, if not more, to the Supreme Court and
a decision of that Court by one bench cannot be set aside by another in writ proceedings
under Article 32. 127

Even otherwise Courts are considered incapable of violating Fundamental Rights and do not
fall within the definition of State under Article 12.

CLAUSE (3)

Parliament is authorised under clause (3) to empower by law any other Court to exercise,
within the local limits of its jurisdiction, any of the powers exercisable by the Supreme Court
under Clause (2). It will be noted that the Constitution itself empowers every High Court
throughout the territories in relation to which it exercises jurisdiction, to issue to any person
or authority within those territories, directions, orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition quo warranto, certiorari, or any of them for the
enforcement of any of the rights conferred by Part Ill. The power conferred on the High
Courts and to be conferred on any Other Court under this clause is not in derogation of the
power conferred on the Supreme Court by clause (2) of Article 32.

126
AIR 1967 SC 1.
127
A R. Antulay v. Nayak , (1988) 2 SCC 602 : AIR 1988 SC 1531. Also Ranjit Singh v.
Union Teriitory of Chandigarh, (1991) 4 SCC 304.

63
 CLAUSE (4)

It is enacted in clause (4) that the right to move the Supreme Court for the enforcement of the
Fundamental Rights shall not be suspended except as otherwise provided in the Constitution.
It is only under Article 359 that the Constitution empowers the President ot suspend the
enforcement of the Fundamental Rights when a proclamation of emergency under Article 352
is in operation.

Res Judicata

Petition to the Supreme Court under article 32 are subject to the rule of res judicata.
Therefore, if a question has been decided by the Supreme court under article 32 between two
parties, the same question cannot be reopened between the same parties under that article. 18
The same will be the position where the matter has been heard and decided by the High Court
under article 226 and a fresh petition is filed under article 32.

The Supreme Court in Daryao v. State of U.P. 129 laid down that:

1. If the petition under article 226 is considered on. merits as a contested matter
and is dismissed, the decision would continue to bind the parties unless it is
otherwise modified or reversed in appeal or other appropriate proceedings
permissible under constitution.

2. It would not be open to party to ignore the said judgment and move the
Supreme Court under article 32 by an original petition made on the same facts and
for obtaining the same or similar orders or writs.

3. If the petition under article 226 in a High Court is dismissed not on merits but
because of the laches of the party applying for the writs or because it is held that the
party had an alternative remedy available to it, the dismissal of the writs petition
would not constitute a bar to a subsequent petition under article 32.

128
Jagannath Baksh Singh v. State of U.P. AIR 1962.
129
1961 SC 1457.

64
 4. Such a dismissal may, however, constitute a bar to subsequent application
under article 32 where and if the facts thus found by the high court be themselves
relevant even under article 32.

5. If a writ petition is dismissed in limine and an order is pronounced in that be

halo, whether or not the dismissal would constitute a bar would depend on the
nature of the order.

6. If the petition is dismissed in limine without a speaking order, such dismissal

cannot be treated as creating a bar of res judicata 130

Doctrine of res judicata under article 32 also applies against matters decided under article
136.131

Applicability to Jammu & Kashmir

Article 32 will apply to the state of J & K., with the omission of Cl (3), as a result of which,
Parliament of India shall have no power to authorize any court of Jammu & Kashmir to
exercise any of the powers specified in Cl(2)132

130
B. Prabhakar Rao V. State of A.P. 1985.

131
Sanjay Khedia v. State of Bihar, 1994.

132
Durga Das Basu, Lexis Nexis, 2012, 14th edition, p.622

65
5.2 Writ Jurisdiction of High Court

Article 226- Power of High Courts to issue certain writs

(l) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercises jurisdiction, to issue to any person or authority,
including in appropriate cases, any Government, within those territories directions, orders or
writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto
and certiorari, or any of them, for the enforcement of any of the rights conferred by Part Ill
and for any other purpose

(2) The power conferred by clause (I) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the seat of such Government or
authority or the residence of such person is not within those territories

(3) Where any party against whom an interim order, whether by way of injunction or stay
or in any other manner, is made on, or in any proceedings relating to, a petition under clause
(I), without

(a) furnishing to such party copies of such petition and all documents in support of the
plea for such interim order; and

(b) giving such party an opportunity of being heard, makes an application to the High
Court for the vacation of such order and furnishes a copy of such application to the party in
whose favour such order has been Invade or the counsel of such party, the High Court shall
dispose of the application within a period of two weeks from the date on which it is
received or from the date on which the copy of such application is so furnished, whichever
is later, or where the High Court is closed on the last day of that period, before the expiry
of the next day afterwards on which the High Court is open; and if the application is not so
disposed of, the interim order shall, on the expiry of that period, or, as the case may be, the
expiry of the aid next day, stand vacated.

66
(4) The power conferred on a High Court by this article shall not be in derogation of the
power conferred on the Supreme court by clause (2) of Article 32

The Article 226 empowers High Court to issues directions, orders or writs in the nature of
habeas corpus, mandamus, quo warranto, certiorari and prohibition. Such directions, orders or
writs may be issued for the enforcement of fundamental rights or for any other purpose. It is
well established that the remedy provided for the in Article 226 of the Constitution of India is
a discretionary remedy and the High Court has always the discretion to refuse to grant such a
relief in certain circumstances even though a legal right might have been infringed.

Supreme Court in Mohd. Yasin v. Town Area Committee 133 held that an alternative remedy
is not bar to move a writ petition in the High Court to enforce a Fundamental Right. This is
the only exception. In all other cases where no fundamental rights evolved, it has been ruled
that the High Court would not exercise its jurisdiction under article 226 when an alternative,
adequate and efficacious legal remedy is available and the petitioner has not availed of the
same before coming to the High Court. The rule of exhaustion of a remedy before invoking
jurisdiction under article 226 has been characterized as rule of policy, convenience and
discretion rather than a rule of law, as per decision of the Supreme Court in State of Uttar
Pradesh v. Md. Nooh134 and Baburam Prakash Chandra Maheshwari v. Antarim Zila
Parishad135

Each High Court has power to issues to any person within its jurisdiction directions, orders,
or writs including writs whish are in the nature of habeas corpus, quo warranto, mandamus,
certiorari and prohibition for enforcement of fundamental rights and for any other purpose.
This power may also be exercised by any High Court exercising jurisdiction in relation to
territories within which the cause of action, wholly or in part, arises for exercise of such
power, notwithstanding that the seat of such government or authority or residence of such
person IS not within those territories 136. Each High Court has power. Of superintendence
over all courts within its jurisdiction.

133
AIR 1957
134
1958 AIR 86.
135
1969 AIR 556.
It can call for returns from such courts, make and issues general rules and prescribe forms to
regulate their practice and proceedings and determine the manner and form in which book
entries and accounts shall be kept. Besides that, under article 226 the court does not go into
disputed questions of fact and give a finding on the truth or otherwise of an allegation or a
counter allegation 137.Likewise there is no scope for oral evidence being adduced by any
party on any disputed fact therefore the scope of writ is narrow and limited.

The High Court under article 226 cannot consider the question about the sufficiency or
inadequacy of evidence in support of a particular conclusion. The parties also cannot take
new point in a writ petition.

Territorial extent of writs jurisdiction

By Clause (l) of Article 226, a two-fold territorial limitation has been placed on the power of
the High Court to issues writs.

l. Firstly, the power is to be exercised throughout the territories in relation to which it

exercises jurisdiction, i.e., writs issued by the court cannot run beyond the territories subject
to its jurisdiction.

2. Secondly, the person or authority to whom a High Court issues such a writ must be within
those territories.

It clearly implies that they must be amenable to its jurisdiction either by residence or location
within those territories138

_____________________

136
V.N. Shukla, Constitution of India, Eastern Book Company, 12th edition, p.657.
137
Kamini Kumar Das Choudhary vs. State of West Bengal.
138
Madan Gopal Rungta v. Govt. of Orissa , AIR 1953.
 Supervisory power

The power under article 226 is the supervisory power. In the exercise of this power, the High
court does not act as a court of appeal. It only examines whether the challenged action
is lawful. Even in respect of lawfulness a distinction is drawn between illegalities committed
within the jurisdiction and those affecting or exceeding the jurisdiction. In exercising this
power, the court cannot go into the merits of the controversy like an appellate court, though
of course the merits of the controversy may influence the exercise of supervisory power.
However, the exercise of this power being in the area of public law, it is difficult to lay down
clear and fine principle for its exercise because ultimately the courts have to be guided by
what is fair and just in the circumstances of the case.

 Res judicata-

The general principles of res judicata apply to writ petition filed under article 226 of the
constitution. Where the same question has been decided by the High Court in a petition under
article 226 and the court comes to the conclusion that no relief can be granted to the
petitioner, such a decision operates res judicata, i.e., a plea which would have been taken by a
party proceeding between him and his opponent, if not taken at the proper time, would
disentitle that party to take plea against the same party in a subsequent proceeding on the
same cause of action11

Even an erroneous decision of the high court on question of law relating to the fact in issues
operates res judicata 12. However for the operation res judicata the petition must be decided
on merits, if a petition is dismissed limine without going to the merits or has been allowed to
be withdrawn then the principle of res judicata will not bar a fresh petition141

139
Amalgamated Coalfield Ltd. v. Janapada Sabha, AIR 1964.
140
Supreme Court Employee Welfare Assn. v. Union of India, AIR (1889 )
SCC 663.

141 Bansi v. Director, Consolidation of Holding, AIR 1967 Punj 28.

 Interim relief

In the exercise of their jurisdiction under article 226, the High Court may, before the final
disposal of a petition, grant such interim relief or pass such interlocutory orders as it
considers appropriate. The Supreme Court has generally discouraged and deprecated the
practice of granting interim relief and said that the court could only grant interim relief only if
satisfied that withholding of it would prick the conscience of the court and do violence to the
sense of justice, resulting in justice being perpetuated throughout the hearing, and at the end
court would not able to vindicate the cause of justice.142

_____________________

142
Deoraj v. State of Maharashtra, (2004)4 SCC 697
 Types of writs

Generally, there are five types of writs i.e., Habeas Corpus, Mandamus, Quo Warranto,
Certorari and Prohibition.

Writ of Certiorari-

The various aspects of the writs of certiorari are as follows:

I. The writs of certiorari is an order issued by the High Court to the inferior courts, tribunal or
authorities to transmit to it the record of proceeding pending before them for checking it and,
if necessary quashing the same.

2. In determining the jurisdiction of writ of certiorari, the courts in India have for
some time been mainly guided by the principles laid down in R v. Electricity
Commres143.Accordingly, in order that a body could satisfy the required test, it was not
enough that it had legal authority to determine questions affecting the rights of
subjects, but also to that must be superadded the further characteristic that the body has
"the duty to act judicially "

3. A writ of certiorari is discretionary; it is not issued merely because it is lawful

to do so. Where the party feeling aggrieved by an order passed by the authority and
that party has an adequate alternative remedy which can be resorted by him then in that
case he cannot avail the the remedy given under this writ and the High Court will
require a strong case in order to entertain a petition under this writ. However a petition
for writ of certiorari may lie to the High Court, where the order is on the face of it
erroneous or raises questions of jurisdiction or of infringement of fundamental rights of
the petitioner144

Grounds for issues of certiorari-

The writs of Certiorari can be issued to a judicial or quasi-judicial body on the following
grounds:

143 (1924)1 KB 171.

144 Champaial Binani v. CIT, (1971) 3 SCC 20.

 1. Want or Excess of jurisdiction.
2. Violation of procedure or disregard of principle of natural justice
3. Error of Law apparent on the face of the record.

Want or excess of jurisdiction.

 Without jurisdiction.
 In excess of jurisdiction
 Fails to exercise jurisdiction.

The writ of certiorari generally for those bodies performing judicial or quasi-judicial
functions for correcting excess of jurisdiction (inferior court or tribunal) or acts without
jurisdiction or fails to exercise 5.1n all the cases under this ground, where there is defect of
jurisdiction or power the writ of certiorari lies. Generally, the want of jurisdiction may arise
from the nature of the subject matter of the proceeding, so that the inferior court had no
authority to enter on the enquiry or upon some part of it which generally violates there the
law of jurisdiction.

Violation of Principle of Natural Justice-

The writ of certiorari will lie to set aside the decision in violation of the natural justice.

Audi alteram partem

a) Bias and interest.

The former means that the parties be given adequate notice and opportunity to be heard and
the latter that an adjudicator be disinterested and unbiased. The requirement of reasoned
decision is also added to these two as the third principle of natural justice. The other rule of
natural justice is that judge must not have an interest or bias in the subject matter of decision.
In Mineral Development Ltd. State of Bihar146 the Supreme Court has made clear that
tribunal or authorities, though they are not courts of justice or judicial tribunal, are as much
bound by the doctrine of bias as any other tribunal. The principles governing the doctrine of
bias are that.

145 state of U.P. v. Mohd Nooh, AIR 1958 SC 86.

146 AIR 1960 SC 468.

63
 • No man shall be judge in his own cause,

• Justice should not only be done but manifestly and undoubtedly seen to be done

b) Audi alteram partem-

 Fair Hearing
 Notice
 opportunity

But it is essential that notice should not be

Vague

Uncertain

Ambiguous

The principle is that both the sides of the parties should have a right full and fair hearing.
Every judicial or quasi-judicial body must be given a reasonable opportunity to the parties
affected to put forth their case, this is commonly described as the right of fair hearing or the
right to be heard. No man should be condemned unheard.

c) Reasoned Decision

Reason must be given about every decision or order which is given by the court .1t is there
because judge or the presiding officer is the human being and errors might occurs
accidentally hence giving of the reasons might able to solve the problem of the injustice.

l. Error of Law.

It is generally takes places because of the clear ignorance of the law or disregard of the law.
An error of law in the decision or determination is subjected to a writ of certiorari, but it must
be "manifest error apparent on the face of the proceedings, for example, when it is based on
the clear ignorance or disregard of the provisions of law "elf two decision are possible then in
that case the decision of the court should not be wrong or erroneous. In other words, it is a
gross or self-evident error of law which can be corrected by certiorari but not a mere wrong

64
decision. Because an error of fact, however grave it may appear, cannot be corrected by a
writ of certiorari. The reason for the rule is that the jurisdiction of High Court to issues writ a
certiorari is a supervisory jurisdiction and the court exercising it is not entitled to act as an
appellate court.

2. A writ of certiorari cannot be issued for declaring an Act or an Ordinance

unconstitutional or void 148. But it can be considering that whether a decision based
on an unconstitutional Act or Ordinance can be quashed by certiorari and,
therefore, incidentally the Act or Ordinance also stands invalidated.

3. Writ of certiorari can be issued by the High Court to courts subordinate to it

but not to any High Court or even to its own Bench much less to the Supreme
Court or any of its benches.

4. The court issuing the writ of certiorari acts in exercise of a supervisory and not
appellate jurisdiction. And the 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.

______________________

147 T.C.Basappa v. T. Nagappa, AIR (1954 ) SC 440.

148 Prabodh Verma v. State of U.P., (1984 SCC 251.

65
Writ of Quo Warranto

1. The word quo warranto means "by what warrants "or "what is your authority " The
writ of quo wattanto is there to prevent a person who has wrongfully usurped an
office from continuing in that office149.The call upon the holder of the office to show
to the court under what authority he holds the office. If court determines that the
holding the office is illegally, it would pass the order of removal of the person from
the office which must be obeyed by him.

High Court judge is Assam High Court was restrained and with the help of this writ
and was not allowed to continue as a judge as he did not fulfil the required
qualifications.

2. Before the citizen can claim a writ of quo warranto he must satisfy the court that the
office is a public office and is held by a usurper or by the person without legal
authority which actually leads to the enquiry as to whether the appointment of the said
alleged usurper has been made in accordance with law or not13
3. Public office will mean an office in which the public have an interest. It has been held
that the office of speaker of legislative assembly is a public office, and writ can issue
to him to inquire by what authority he supported his claim to the office151.
4. There is no question of delay in presenting a petition for writ of quo warranto in
which the right of a person to function in a certain capacity is challenged because
every day the person so acts in that capacity a fresh cause of action arises
5. The writ of quo warranto is discretionary in nature and the petitioner is not necessarily
entitled to the issues of a writ. Thus where a person was holding a post for a long time
and there was no complaint against him and the issues of writ of quo warranto would
have been vexatious the High Court shall in its discretion refuse to issues a writ of
quo warranto153

149
S.P Gupta v. Union of India, 1981 Supp SCC 87
150
University of Mysore v. C.D Govinda Rao, AIR 1965 SC 491
151
Anand Bihari Mishra v. Ram Sahay, AIR 1952 MB 31
152
S.S Shewale v. Jalgaon Borough Municipality, ILR 1958 Bom 113

66
 6. The writ of quo warranto will not lie in respect of an office of a private nature. In
Jamalpur Arya Samaj v. D. Ram, the petitioner moved the High Court for issues of
writ of quo warranto against the members of the Working Committee of the Bihar Raj
Arya Pratinidhi Sabha- a private religious association. The court refused the writ on
the ground that a writ of quo warranto does not lie against an office of private nature.
7. In case of Biman Chandra Bose v. Governor it was held that the application for the
writ of quo warranto challenging the legality of an appointment to an office of a
public nature is maintainable at the instance of any private person, although he is not
personally aggrieved or interested in the matter.

Now there are some conditions for issues of quo warranto which are as follows-

1. The office must be public and it must be created by a statute or by the constitution
itself.
2. The office must be substantive one and not merely the function or employment of
servant at the will and during the pleasure of another.
3. There must have been a contravention of the constitution or a statute or statutory
instrument, in appointing such person to that office.

To file a petition for quo warranto, it is not necessary that the petitioner should have suffered
a personal injury himself, or should seek to redress a personal grievance. Petitions for quo
warranto have been moved to test the validity of election of a person to a university
syndicate, or as the mayor of a municipal corporation, nomination of members to a
Legislative Council by the Governor, appointment of the Chief Minister of a State or the
Chief Justice of India, or the Advocate-General in a State, or a public prosecutor, University
teachers, the presiding officer of a labour court, etc.

153 Baij Nath Singh v. state of U.P., AIR 1965 All 196.

154 AIR 1954 Pat 297.

155 Air 1952 Cal 799.

67
The motives of the appointing officer in making the appointment in question are irrelevant in
a quo warranto petition. Also, the court would not issue the writ if it is futile, e.g., if the
person holding the office, on being ousted by quo warranto can be reappointed.

A petition for quo warranto was filed against the Chief Minister of Rajasthan on the ground
that he was not validly elected to the House. The Rajasthan High Court rejecting the petition
ruled that quo warranto may be issued on the petition of a member of the public if a Chief
Minister holds office without lawful authority, and in breach of any constitutional provision.
The office of the Chief Minister is one of substantive character created by the Constitution.
But membership of an Assembly is not an office for the purposes of quo warranto and it is
not a proper remedy to raise questions relating to the election of the Chief Minister to the
House. Such a question can be raised properly only through an election petition.156

156 Purushotam Lal v. State of Rajasthan, Alk 1979 Raj 23

68
Writ of Mandamus-

Mandamus has been issued in India by the letter Patent creating the Supreme Court in
Calcutta in 1773. The Supreme Courts in the presidency towns were empowered to issues the
writ. In 1877 the Specific Relief act substituted an order in the nature of Mandamus in the
place of the writ of mandamus for the purpose of requiring any specific act to be done or
forborne within the local limits of its ordinary civil jurisdiction by an person holding a public
office.

The features of the writ Mandamus are as follows-

1. Mandamus is a judicial remedy which is in the form of an order and it can be

issued from a superior court to any government, court, corporation or public
authority to do or to forbear from doing some specific act which that body is obliged
under law to do or refrain from doing, as the, as the case may be, which is in the
nature of a public duty and in certain cases of statutory duty14

2. The applicant praying for the writ must show that he has a legal right to
compel the opponent to do or refrain from doing something. However the duty must
be duty of a public nature15 . A duty will be public in nature if it is created by the
provisions of the Constitution or of a statute or some rules of common law. An
obligation which comes into existence by act of parties is not enforceable by a writ
of Mandamus. Hence, the writ cannot be issued for enforcing obligations arising out
of a contract.

3. Writ of Mandamus is not against a private person. In Praga Tools Corpn.

V. C.A. Imanual159 in this case it was observed that an application for mandamus
will not lie for an order of reinstatement to an office which is essentially of private
character, nor can such an application be maintained to secure performance of
obligation owed by company registered under the Companies Act, 156.

4. Another important condition for the grant of the relief of Mandamus is that
there must be demand for the relief by the party and its refusal by the authority

157
A.T. Markose, Judicial Control of Administration Action In India, 364.
158
Rashid Ahmed v. Municipal Board, Kariana, AIR, 1950
SC 163.
159
(1969 ) 1 scc 585.

69
 concerned. In Naubat Rai v. Union India 160 the petitioner was in the service of the
Military Farm Department and was ren10ved from service by the departmental head
applied for a writ of Mandamus, but it was not shown that he had applied for
reinstatement or that he even applied under the rules against the order of removal
and that such demand was denied. It was held such application is not maintainable
under article 226.

5. Writ of Mandamus cannot be issued in a dispute which arises out of contract

between a government and a contractor.

6. A writ of Mandamus cannot be issued to the State Legislature to prevent it

from considering a bill which is alleged to be in violation of the Constitution161

7. A writ of mandamus has been very commonly issued to stop an administrative

authority from committing an ultra vires act. Likewise issued to prevent the
government from enforcing unconstitutional act or notification.

According to the Supreme Court, mandamus is issued "to compel performance of public
duties which may be administrative, ministerial or statutory in nature". Usually the use of the
word "shall" or "must" indicates a mandatory duty, but this is not conclusive and these words
may be interpreted as "may". Therefore, the Court has further observed: "What is
determinative of the nature of duty, whether it is obligatory, mandatory or directory, is the
scheme of the statute in which the 'duty' has been set out". Even if the 'duty' is not set out
clearly and specifically in the statute, it may be implied as correlative to a 'right'. For
example, mandamus can be issued directing the executive to do its legal duty by
implementing the order of a tribunal.

Mandamus can be issued when the government denies to itself a jurisdiction which it
undoubtedly has under the law. Mandamus is not issued if the right is purely of a private
character. A private right, such as arising out of a contract, cannot be enforced through
mandamus and the proper course is a civil suit except when the matter falls in the public law

160
1973 AIR 2110.

161
Chotey Lai V. state of U.P., AIR 1951 ÅLL 228.

70
domain. For example, in Lotus Hotel162, the Court issued a direction under Art. 226 to
enforce a contractual obligation by applying the doctrine of promissory estoppels. Recourse
may be had to mandamus if a public authority acts in an arbitrary and unlawful manner even
though the source of the right of the petitioner may initially be in a contract.

Mandamus cannot be issued to the legislature to enact a particular legislation. Similarly,

mandamus cannot be issued to the executive to make a particular rule in the exercise of its
power of delegated legislation, as the power to frame rules is legislative in nature.163

162
Gujrat State Financial Corporation v. Lotus Hotel, AIR 1983 SC 848

163
Supreme Court Employees 9 Welfare Ass v. Union of India, AIR 1990 SC 344.

71
Writ of Habeas Corpus-

Habeas Corpus means "to have a body ". It is a process by which a person who is confined
without any legal justification may be released from his confinement.

1. This writ is actually an order issued by the Court calling upon the person by
whom a person is alleged to be kept in confinement to bring the person who is in
confinement before the court and tell the court know that on what ground the
person is confined164. If there is no legal justification for the detention, the person
is ordered to be released.

2. An application for the Habeas corpus can fresh petition under article 32 would
be competent165

3. If an application is made to the High Court for the issues of writ of Habeas
corpus, it would not be competent to the house of legislature to raise a preliminary
objection that the High Court has no power to issues writ as detention is made
under the directions of house

4. Every application for a writ of Habeas Corpus has to be accompanied by an

affidavit stating the nature and circumstances.

5. It protects the fundamental right to freedom of citizen.

6. It can be filed by the detainee or his relative or even a friend

Broadly speaking a detention is not prima facie illegal, if

 Detention is according to the procedure established by law.

 It does not violate article 21.

164
Kanu Sanyal v. District Magistrate, Darjeeling (1973 )2 SCC 674.
165
Ghulam Sarwar v. Union of India, AIR 1967 SC 1335.

72
The writ of habeas corpus is used to secure release of a person who has been detained
unlawfully or without legal justification. The greater value of' the writ is that it enables an
immediate determination of a person's right to freedom. Detention may be unlawful if it is not
in accordance with law, or the procedure established by law has not been strictly followed in
detaining a person, or there is no valid law to authorize detention, or the law is invalid
because it infringes a Fundamental Right, or the legislature enacting it exceeds its limits.

Detention should not contravene Art. 22, as for example, a person who is not produced before
a magistrate within 24 hours of his detention is entitled to be released. The power of
detention vested in an authority, if exceeded, abused or exercised mala fide makes the
detention unlawful.

While dealing with a petition for a writ of habeas corpus, the court may examine the legality
of the detention without requiring the person detained to be produced before it. The writ is
issued to the authority having the custody of the aggrieved person. It may be prayed for by
the prisoner himself, or if he is unable to do so, by someone else on his behalf. The writ is not
issued if the court is satisfied that the prisoner is not under unlawful restraint.

Because the courts regard personal liberty as one of the most cherished values of mankind,
the Supreme Court has lately sought to reduce procedural technicalities to the minimum in
the matter of issue of habeas corpus. The Supreme Court has pointed out in Icchu Devi v.
Union of India166, that in case of an application for a writ of habeas corpus, the court does
not, as a matter of practice, follow strict rules of pleading. Even a postcard by a detenu from
jail is sufficient to activism the court into examining the legality of detention. Also, because
of Art. 21, the court places the burden of showing that detention is in accordance with the
procedure established by law on the detaining authority. The court may grant an interim bail
while dealing with a habeas corpus petition.

_______________________

166
AIR 1980 SC 1984

73
Writ of Prohibition

Generally, this writ issues or gives command to the court or to the tribunal to refrain or stop
from doing something. It is generally issued when the lower courts or authority exceeds its
authority or its jurisdiction which is not vested in them.

Writ of prohibition is very similar to the writ of certiorari since both of them are issued for
inferior courts when they exceed their jurisdiction but prohibition can be issued in the middle
of the case but certiorari can be issued after proceeding before the inferior court gets over.
When any quasi-judicial body or authority proceeds to act in contravention of a fundamental
right, the writ of prohibition would issue under article 32 to prevent it from proceeding. Writ
of prohibition is normally issued only when the inferior court or tribunal (a) proceeds to act
without or in excess of jurisdiction, ( b ) act in violation of rules of natural justice, (c ) act
under law which is itself ultra vires or unconstitutional (d) act in contravention of
fundamental rights

1. A writ of Prohibition says that the court or tribunal to whom the writ of prohibition is
issued is actually refrained from doing something which is actually out of its jurisdiction.
It prevents a tribunal possessing judicial or quasi-judicial powers from assuming or
threatening to assume jurisdiction which it does not possess. Thus the writ lies both for
excess of jurisdiction and absence of jurisdiction167

2. Prohibition as well as certiorari common in nature whether in respect of its scope or

by the rules by which it is governed. Thus both these writs lie against a judicial or quasi-
judicial or against the inferior court but it does not lie against an executive body.

When the proceeding before the inferior courts or quasi-judicial authority are partly within
and partly outside jurisdiction the prohibition will lie against doing what it is in excess of
jurisdiction. Therefore, in the case of Sewpujanria Indrasanarai Ltd. v. COLLECTOR of
Customs the collector of customs has imposed invalid conditions for release of gold on
payment of the fine in lieu of confiscation, the IAC can issue a writ of prohibition prohibiting
the customs authorities from enforcing the invalid conditions.

3. In Bengal Immunity Co. Ltd. v. State of Bihar169 the SC said that the existence of an
alternative remedy may be more relevant in the context of a writ of certiorari, but where
an inferior tribunal is shown to have usurped jurisdiction which does not belong to it that
consideration is irrelevant and the writ of prohibition has to issues as of right.

74
 4. However, there is distinction between the two writs. Both of them are issued at
different stages of the proceedings. In case of prohibition when an inferior court hears any
matter over which it does not have jurisdiction, the person against whom the proceedings
are taken can move the superior court for a writ of prohibition, then the superior court
will issue order forbidding the inferior court from continuing the proceedings. On the
other hand, if the inferior court hears that case or matter and gives the decision then in
that case the aggrieved party will have to more the superior court for a writ of certiorari,
and on that, an order will be made quashing the decision on the ground of want of
jurisdiction

Sometimes these two writs overlap. Authorities has been given power that in a case when an
applicant applies for the writ of prohibition and there is no prayer for certiorari, it would open
to the court to stop further proceedings which are consequential on the decision.

5. However sometimes case occur when sometimes the case is partly within the
jurisdiction and partly without jurisdiction, the prohibition will lie against those which
without jurisdiction.

_____________________

169
AIR 1955 SC 661

75
 Chapter-5

Writs in Relation with Judicial Review and Natural Justice

4.1 Writs and Judicial Review

Judicial review means review by the court of administrative action with a view to ensuring
their legality. Administrative authorities given powers by the statutes and such powers must
be exercised within the limits of the power drawn by such statutes. In Judicial Review of
Administrative action, the court merely enquires whether the authority has decided according
to law. In review the authority does not go into the merits of the decision.

Administrative law has greatly demarcated the checks, balances and permissible area of an
exercise of power, authority and jurisdiction over administrative actions enforced by the any
State, Governmental agencies and instrumentalities defined under Article 12 of the
Constitution of India. And the judiciary is dynamically carving the principles and exceptions,
while making the judicial review of administrative actions.

The administrative law is that branch of law that keeps the governmental actions within the
bounds of law or to put it negatively, it prevents the enforcement of blatantly bad orders from
being

The Courts have constantly tried to protect the liberties of the people and assume powers
under the Constitution for judicial review of administrative actions. The discretionary powers
have to be curbed, if they are misused or abused. The socio-politic Institution need not cry, if
the courts do justice and perform the substantial role. That is the essence of justice. It is
submitted, the trend is to read the social justice and to translate in reality. The welfare State
has to discharge its duty fairly without any arbitrary and discriminatory treatment to the
people in the country. If such powers come to the notice of the Courts, the courts have raised
the arms consistently with the rule of law.

conferment of discretionary powers has been accepted as necessary phenomena of modern

administrative and constitutional machinery. Law making agency legislates the law on any
subject to serve the public interest and while making law and therefore it has become
indispensable to provide for discretionary powers that are subject to judicial review. The rider
is that the discretionary power has to exercise the discretion in good faith and for the purpose

76
for which it is granted and subject to limitations prescribed under the Act. The Courts have
retained their jurisdiction to test the Statute on the ground of reasonableness. Mostly, the
courts review on two counts; firstly, whether the statute is substantively valid piece of
legislation and, secondly whether the statute provides procedural safeguards. If these two
tests are not found, the law is declared ultra vires and void of Article 14 of the Constitution.

Beside this, Courts control the discretionary powers of the executive government being
exercised after the statutes have come to exist. Once they come into existence, it becomes the
duty of the Executive Government to regulate the powers within limitations prescribed to
achieve the object of the Statute. If these discretionary powers are not properly exercised, or
there is abuse and misuse of powers by the executives or they take into account irrelevant
consideration for that they are not entitled to take or simply misdirect them in applying the
proper provision of law, the discretionary exercise of powers is void. Judicial review is
excluded when it is found that executives maintain the standard of reasonableness in their
decisions.

The Executive have to reach their decisions by taking into account relevant considerations.
They should not refuse to consider relevant matter nor should they take into account
considerations that are wholly irrelevant or extraneous. They should not misdirect themselves
on a point of lay, Only such a decision will be lawful. The courts have power to see that the
Executive acts lawfully. They cannot avoid scrutiny by courts by failing to give reasons. If
they give reasons and they are not good reasons, the court can direct them to reconsider the
matter in the light of relevant matters though the propriety adequacy or satisfactory character
of these reasons may not be open to judicial scrutiny. Even if the Executive considers it
inexpedient to exercise their powers they should state their reasons and there must be material
to show that they have considered all the relevant facts."

The power of judicial review has been given under article 226 of the High Court and article
32 of the Supreme Court. The constitution provides us the power of the judicial review under
writ jurisdiction of the Supreme Court and High Court of the India. It is actually a kind of
advantage given to the Indian courts or judiciary as comparison to the others judiciary of the
world. However, the scope of judicial review under article 226 and article 32 is limited to
certain conditions which are as follows170.

77
 1. The law applied in the judgment or order of the tribunal has been rightly applied.

2. Whether there is violation of jurisdiction.

3. Whether there is violation of natural justice.

4. Whether the decision impugned before the court holding the judicial review is
irrational or perverse and it suffers from the arbitrariness or bias.

Another issues while reviewing the orders of the tribunal by the High Court, has to be see that
the issues which were not raised before the tribunal cannot be raised in the writ before the
High Court under article 226. The Supreme Court in Jadhao's case refused to allow the
validity of the issues raised before the High Court which was raised before the tribunal. This
is more in consonance with the law laid down by the SC in the case Chandra Kumar case.
The Supreme Court in the State of Uttar Pradesh v. Johri Mal analysed the judicial review
under article 226 of the constitution by the High Court. The Apex Court has observed that —

"The scope and extent of power of the judicial review of the High Court contained in Article
226 of the Constitution of India would vary from case to case, the nature of the order, the
relevant statute as also the other relevant factors including the nature of power exercised by
the public authorities namely, whether the power is statutory, quasi-judicial or administrative.
The power of judicial review is not intended to assume a supervisory role or done the robes
of omnipresent. The power is intended neither to review governance under the rule of law nor
do the courts step into the areas exclusively reserved by the supreme lex to other organs of
the state”

170
Bombay dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group, (2006 ) 3 SCC
434.

171
AIR 2004 SC 3800

78
However, scope of the judicial review is very limited are as follows172

1. Courts while exercising the power of judicial review do not sit in appeal for the
decision of the court.

2. A petition for a judicial review would lie only on certain well-defined grounds.

3. An order passed by an administrative authority exercising discretion cannot be

interfered in judicial review unless it is shown that the discretion is illegal.

Application of the Writ of Certiorari

The writ of Certiorari is basically issued against the statutory bodies exercising judicial or
quasi-judicial powers. Such writ is issued against the authorities namely the government and
the court or other statutory bodies who have power to determine and decide the lies between
the parties. In deciding such issues if the decision making order is passed without any
authority or has passed the order in exercise of such authority or has committed an error of
law and facts the high court is empowered to correct such error of the lower court or
government authorities. Certiorari may apply when the administrative or executive authority
fails to observe their duty to act fairly with respect to the administrative functions.

Application of the Writ of Mandamus

The writ of mandamus is ordered when the statutory authorities who entrusted with the duties
fail to discharge its obligatory duty. It may be applied when the government authorities
vested with absolute powers fail to perform their administrative and statutory duties

Application of the Writ of Prohibition

The writ of Prohibition is issued essentially against the government or its authorities when
they are not conferred with the power or jurisdiction to decide the dispute. The court by
virtue of this power restrains the authority to exercise such powers which are not given to the
authority.

Application of the Writ of Quo Warranto

The high Court would exercise the power of Quo Warranto against the public authority or
government who acts contrary to the provisions of the statute and restrains the authority or
public servant from usurping the public office on account of lack of qualification. It is a
means of asserting sovereign right. In Sonu Sampat v. Jalgaon Borough Municipality, "If the

79
appointment of an officer is illegal, every day 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."

Application of the Writ of Habeas Corpus

The writ of Habeas Corpus is a writ issued in order to protect the liberty and freedom which -
i conceived to be very vital. It is issued against the wrongful detention or confinement
through the police authority. By virtue of this writ the police authorities or other such
statutory authorities are empowered to bring the custody of the person who has been
wrongfully detained by the court of law.

4.2 Writs and Natural Justice

The law of writs is mainly based on the principle of natural justice, equity, good conscience
and fair play173 It is because of the fact that the purpose of the writ is to deliver efficacious
and speedy justice no formal rules of procedure can control it or which regulate and direct the
proceedings of the court 16 . The principle of fair play and natural justice have thus become
guiding stars in the law of writs. Since writs is a public remedy, it is naturally expected that
any decision in the writ must appeal to the conscience of a common man. Without any legal
procedure to it is still may be called an embodied men of justice, equity and good conscience.
It is the fact and circumstance of the case which determine the role of natural justice. Thus
writs have to be decided by keeping the fair play in mind in order to achieve the justice.
Natural justice is analogous to fair play though it is broader in concept but it is more or less
defined within the parameters of law. The basic purpose is to deliver the justice in a fair and
judicious manner. The first ingredient of Natural justice is that-

l. No one shall be a judge in his own cause. It means the judge should no interest in the
subject matter to be place before him for its decision, because it was said that the justice
should not only be done that it seems to be done. The concept of fair play also means the
same thing.

173
V.N Shukla’s, Eastern Law Company, 2013, 12th Edition, p.
174
Ibid

80
2. The next important principle natural justice is that due opportunity of being heard. Nobody
can be condemned or punished unheard. When the matter comes before the court or the
authority exercising the judicial and quasi-judicial powers the prime duty of such court or
authority is to ensure judicious proceeding. Under this principle of natural justice both the
parties have to be provided an equal and sufficient opportunity of being heard. Right from the
service of notice to the delivery of final decision in the matter a continuous association of
both the parties has to be ensured in the proceedings.

Article 31 1 (2) of the constitution reflect an intention wherein the requirement of inquiry has
been done away under the circumstances explained in the said article. It is thus not possible
to bind the concept of natural justice by laying down rigid rules regarding application, and
everything depends on the facts and circumstance of the case or of the matter. The only
requirement for the natural justice is that the proceeding before the tribunal has be to fair and
is to be based on the facts and the circumstance of the matter.

81
 CHAPTER - 6

PUBLIC INTEREST LITIGATION

6.1 ORIGIN OF PUBLIC INTEREST LITIGATION

The concept of 'Public Interest Litigation' is one of the most important innovations in the
Indian judicial process. It emerged in the late seventies of twentieth century in response to the
need to make judicial process more accessible to poor, downtrodden, socially and
economically disadvantaged sections of the society. It was primarily the judges of the higher
judiciary who innovated the concept of public interest litigation through judicial activism
which came into prominence in India in the second half of twentieth century. During this
period, the doctrine of judicial review has assumed a new aspect, which is popularly known
as judicial activism. The old orthodox and mechanistic theory that a judge never creates law
and only declares law has been replaced by the concept of judicial activism. Thus, the judicial
activism opened up new dimension for judicial process and has given a new hope to the
justice — starved millions.

PIL means litigation filed in a court of law, for the protection of "Public Interest" such as
pollution, terrorism, road safety, constructional hazards etc. Public interest litigation is not
defined in any statute or in any act. It has been interpreted by judges to consider the intent of
public at large. Although, the main and only focus of such litigation is only "Public Interest"
there are various areas where Public interest litigation can be filed, for e.g.

a) Violation of basic human rights of the poor.

b) Content or conduct of government policy.

c) Compel municipal authorities to perform a public duty.

d) Violation of religious rights or other basic fundamental rights.

In Bandhua Mukti Morcha v. Union of India. 175 the Supreme Court explained the philosophy
underlying public interest litigation as follows Where a person or class of persons to

175
AIR 1984 SC 802: (1984) 3 SCC 161.

82
whom legal injury is caused by a reason of violation of fundamental rights is unable to
approach the Court for judicial redress on account of poverty or disability or socially or
economically disadvantaged position, any number of the public acting bona fide can move
the Court for ruling under Article 32 and 226 of the Constitution of India, so that the
fundamental rights may become meaningful not only for reach and the well to do who have
the means to approach the Court, but also for the large masses of people who are living a life
of want and destitution and who are by reason of lack of awareness, assertiveness and
resources unable to seek judicial redress".

The evolution of PIL in India has an interesting background. In the famous case of
Kesavananda Bharati v. State of Kerala, 17 the Supreme Court ultimately put a brake on the
arbitrary and unreasonable power of legislature to destroy the "Basic features" of the
Constitution. Thus, the seeds of PIL could never have been planted had the Supreme Court
not brought justness and fairness in the "Indian Legal System" in the year 1973, by
formulating the "Doctnne of Basic Structure". Justice Krishna lyyer sowed the seeds of the
new dispensation in Mumbai Kamgar

Sabha v. Abdulbhai Faizullabhai18 and used the expression PIL and "epistolary jurisdiction"
in Fertilizer Corporation Kamgar Union v. U.O.I.178

The Courts in India found that the oppression of the weaker and disadvantaged groups
considerably greater in India as compared to U.S.A. The political and legislative sensitivity
was also missing. The Supreme Court was left with no choice but to assume a much more
concerned guardian and protector of Fundamental Rights. The resources in India were always
claimed to be limited. Hence the financing of legal aid programmes for giving a boost to PIL
was ignored by the government as much as possible. This led to the relaxing of the
requirement of "procedures" and "locus standi" by the Supreme Court. The Court treated
even a simple letter as a PIL. The first reported case of PIL in 1979 focused on the inhuman
conditions of prisons and under trial prisoners. In Hussainara Khatoon v. State of Bihar179 the
PIL was filed by an advocate on the basis of the news item published in the Indian Express,
highlighting the plight of thousands of under trial prisoners languishing in various jails in

176
AIR 1973 SC 1461
177
AIR 1981 SC 434
178
AIR 1981 SC 344
179
AIR 1979 SC 1360

83
Bihar. These proceedings led to the release of more than 40,000 under trial prisoners. Right to
speedy justice emerged as a basic fundamental right which had been denied to these
prisoners. The same set pattern was adopted in subsequent cases. A new era of the PIL
Involvement was heralded by Justice P.N. Bhagawati in the case of S.P. Gupta v. Union of
India. 180 In this case it was held that "any member of the public or social action group acting
bonafide" can invoke the writ jurisdiction of the High Courts or the Supreme Court seeking
redressed against violation of legal or constitutional rights of persons who due to social or
economic or any other disability cannot approach the Court." By this judgement PIL became
a potent weapon for the enforcement of "Public duties" where executed in action or misdeed
resulted in public injury. And as a result any citizen of India or any consumer groups or social
action groups can now approach the apex court of the country seeking legal remedies in all
cases where the interests of general public or a section of public are at stake.

6.2 EPISTOLARY AND LETTER JURISDICTION

The Public Interest Litigation or social Interest Litigation has been evolved with a view to
render complete justice to the poorest of the poor, depraved, illiterate, the urban and rural
unorganized un organized labour sector, women children, handicapped by ignorance,
indigence and illiteracy and other down trodden who have either no access to justice or have
been denied justice. Its object to make justice available to down trodden etc. having regard to
the concept of human right in Bandhua Mukti Morcha v. Union of India 181, an organisation
dedicated to the cause of release of bonded labourers in Faridabad District of State of
Haryana and prayed for the issue of writ for release of the bonded labourers and for proper
implementation of the various provisions of the constitution and statutes with a view to end
suffering and helplessness of such labourers. The court treated the letter as writ petition and
entertained it and appointed a commission to make inquiries and report to the court about the
existence of bonded labourers in the said area. The Supreme Court said that Public Interest
Litigation should not be taken to be in the nature of adversary litigation. It is a challenge and
an opportunity to the Government and its officers to make basic human rights meaningful to
the deprived and vulnerable section of the community and to assure them social and
economic justice which is the rigid tune of the constitution.

180
AIR 1982 SC 14 at 189.

181
AIR 1984 SC 802

84
Even a letter given by 'public spirited' individuals or social action group is treated as writ
petition by the court and the court readily responds to it. In Disabled Rights Group v. Chief
Election Commissioner182 a letter sent by Disabled Rights Group was treated by the Court as
P.I.L. In Hussainara Khaloon (I) V. Home Secretary, Stale of Bihar 183 Habeas Corpus
petition was moved on the basis of the news report. The court allowed the petition and
ordered the release of all the under-trial prisoners named in the news report. Lakshmi Kant
Pandey v. Union of India l , was initiated on the basis of a letter by an advocate complaining
of mal-practices indulged in by social organizations in the matter of offering Indian children
in adoption to foreign parents. He based his letter on press reports on this issue. The Court
formulated a series of guidelines to be applied in such matters. In some cases, the affected
parties addressed letter directly in the name of the judges of the SC and they used to convert
the letters into writ petitions. This practice has been criticized on the ground that there would
be a danger of litigations choosing a judge and in turn judges choosing their litigants. To
avoid this defect, now the practice developed by the court is that the judge passes on the
leader to the registrar for being dealt with according to the normal practice of the court.

In Divine Retreat Centre v. State of Kerala 185, the Court has made it clear that in case of PIL,
the litigant must disclose his identity so as to enable the Court to decide that the informant is
not a wayfarer or officious intervener without any interest or concern. Anonymous letter
cannot be entertained as P.I.L.

6.3 PUBLIC INTEREST LITIGATION AND JUDICIAL ACTIVISM

The powers of the Supreme Court for the protection of the constitutional rights of citizens are
of the widest amplitude and there is no reason why the Court should not adopt activist
approach similar to Courts in America and issue to the State directions which may involve
taking of positive action with a view to securing enforcement of the Fundamental Right. The
judiciary has been assigned this active role under the Constitution.

182 AIR 2004 SC 4539.

183 AIR 1979 SC 1360.

184 AIR 1985 SC 652

185 AIR 2008 SC 1614

85
They have to exercise their judicial powers for protecting the fundamental rights and liberties
of citizens of the country. Therefore, in order to achieve this mission the judiciary has to
exercise and evolve its jurisdiction with courage, creativity and circumstances and with
vision, vigilance and practical wisdom

One should, however, understand, that this exercise of authority of the judiciary is not for
glory but it is in discharge of its constitutional obligation. For otherwise the judiciary will
become crippled which in turn will cripple democracy. When the executive and legislature
are apathetic and fail to discharge their constitutional obligations and the bureaucracy shows
a total indifference and insensitivity to its mandatory duties, this in turn affects the basic
rights of the people. When the law enforcing authorities show their brutality in the process of
implementation of law, the judiciary should check the excesses and also direct the authorities
to effectively implement the welfare legislation.

The Supreme Court's role in sensitizing the central investigating authorities to discharge their
legal obligations in the various scams cases and if various judgments ranging from the need
for Uniform Civil Code pollution control, preservation of historical monument like Taj
Mahal, cleaning and keeping the big cities more hygienic, directing removal of
encroachments interim compensation to rape victim, protecting working women from sexual
harassment, punishing senior Karnataka IAS Officer, Vasudeva and ,Chief Election
Commissioner T.N. Sesha In Hussainara Khatoon v. State of Bihar,186 the Supreme Court
has held that speedy trial is an essential and integral part of the fundamental right tQ life and
liberty enshrined in Art. 21. In Bihar a number of under-trial prisoners were kept in various
jails for several years without trial. The Court ordered that all such prisoners whose names
were submitted to the Court should be released forthwith. Since speedy trial was held to be a
fundamental right guaranteed by Art. 21, the Supreme Court considered its constitutional
duty to enforce this right of the accused persons.

The Supreme Court has now realized its proper role in a welfare state, and it is using this new
strategy not only for helping the poor by enforcing their Fundamental Rights of persons but
for the transformation of the whole society as an ordered and crime free society. The
Supreme Court's pivotal role in making up for the lethargy of the legislature and the
inefficiency of the executive is commendable.

______________________

186
AIR 1979 SC 1369.

86
Those who oppose to the growing judicial activism of the higher courts do not realize that it
has proved a boon for the common man. Judicial activism has set right a number of wrongs
committed by the State the Supreme Court has directed all States and Union Territories to
immediately issue orders banning smoking in public places and public transports, including
railways. Hearing a PIL against smoking field by Maharashtra Congress leader Murli Deora
the Court also asked the Commissioners of Police of Delhi, Mumbai, Chennai, Kolkata,
Bangalore and Ahmadabad to submit status reports of action taken against cigarette
manufacturers violating advertising code. The orders banning smoking in public places would
include hospitals, health institutes, public offices, public transports including railways, court
buildings, educational institutions, libraries and auditoriums. Seeing the ill-effects of Delhi,
Goa and Rajasthan have taken the lead in this matter and already enacted laws banning
smoking in public places. The Centre has introduced an Anti-Smoking Bill in the Parliament
which has been referred to a Parliamentary Select Committee. A major problem is regarding
the implementation of the direction of the Court.

In Sunil Batra v. Delhi Administration,18 it has been held that the writ of habeas corpus can
be issued not only for relating a person from illegal detention but also for protecting prisoners
from inhuman and barbarous treatment. The dynamic role of judicial remedies imports to the
habeas corpus writ a versatile vitality and operational utility as bastion of liberty even within
jails. "Wherever the rights of a prisoner either under the Constitution or under other laws are
violated the writ power of the court can run and should run to rescue", declared Krishna lyer,
J. In Veena Sethi v. State of Bihar.188 The Court has informed through a letter that some
prisoners, who were Insane at the time of trial but subsequently declared sane, were not
released due to inaction of State authorities and had to remain in jails from 20 to 30 years.
The Court directed that they be released forthwith.

187
AIR 1980 SC 1759, Sunil Batra's case No. (1) AIR 1978 SC 1975; Rakesh v. B.L.
Vig supdt. Central Jail, 188New Delhi, AIR 1981 SC 1767 (Prison torture not beyond
the reach of the Court).
188
AIR 1983 SC 339
189
(1984) 2 SCC 244; see also Laxmi Kant Pandey v. Union of India, (1987) I SCC 667;
sheela Barse v. Secretary, Children Aid Society, (1987) 3 SCC 50.

90
In Lakshmi Kant Pandey v. Union of India, a writ-petition was filed on the basis of a letter
complaining of malpractices indulged in by social organisation and voluntary agencies
engaged in the work of offering Indian children in adoption to foreign parents. It was alleged
that in the guise of adoption, Indian children of tender age were not only exposed to the long
dreadful journey to distant foreign countries at great risk to their lives but in case they survive
they were not provided any shelter and relief homes and in course of time they become
beggars or prostitutes for want of proper care. Bhagwati, J. (as he then was) laid down
principles and norms which should be followed in determining whether a child should be
allowed to be adopted by foreign parents. With the object of ensuring the welfare of the child
his Lordship directed the Government and various agencies dealing with the matter to follow
these principles in such cases as it is their constitutional obligation under Arts. 15(3) and
39(c) and (f) to ensure the welfare of the child.

Under Art. 32 the Court has power to award cost of public interest petition to the petitioner
who was not in legal profession but brought an important matter before the Court for its
consideration.19 The petitioner has asked the court to issue direction to the Government to
improve Railway Services. Although the Court held that in view of the limited resources of
the Government directions could not be issued, but it hoped that the Government would try to
improve this public utility service in an effective way. Since the petitioner through this public
interest litigation has attempted to voice the grievances of the Community availing Indian
Railways, took great pains to highlight his stand, collected a lot of relevant material and
argued his case it was directed that he was entitled to cost of litigation from the Railway
Ministry.20However, damages and compensation for losses, humiliation and indignation
suffered by the petitioner cannot be granted by the Court under Art. 32. In a significant
judgment in Vineet Narain v. Union of India, 192 Court has issued directions to make the CBI
independent agency so that it may function more effectively and investigate crimes and
corruptions at high places in public life which poses a serious threat to the integrity, security
and economy of the nation and to take necessary measure to prosecute the guilty.

190
Nala Thampy v. Union of India, (1983)4 SCC 598.
191
Jiwan Mal Kocher v. Union of India, (1984)1 SCC 200.
192
AIR 1998 SC 889

91
The matter was brought before the Court by way of a public interest litigation under Article
32 of the constitution. It was contended that the government agencies, like the CBI and the
revenue authorities have failed to perform their duties and legal obligations inasmuch as they
have failed to investigate matters arising out of the seizure of the "Jain diaries" and to
prosecute all persons who were found to have committed an offence. Under clause (2) of
Article 32 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 Ill of the
Constitution. By this Article the Supreme Court has been constituted as a protector and
guarantor of Fundamental Rights conferred by Part Ill. 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 v. State of U.P 21 the
Supreme Court took it as its solemn duty to protect the fundamental right zealously and
vigilantly.

In Harbans Singh v. State of U.P. 22, it was held the under Art. 32 very wide power has been
conferred on the Supreme Court for due and proper administration of justice. This inherent
power is to be exercised in extraordinary situations in the large interests of administration and
for prevention of manifest injustice. Accordingly, the Court commuted the death sentence of
the petitioner into the imprisonment for life on the ground that one of his co-accused's
sentence was commuted by the Court. The Court recommended that the President should
normally exercise his power under Art. 72 to commute the death sentence because he has
considered petitioner's mercy petition and rejected it. But if he fails to exercise his power the
Court will interfere to do justice in a particular case. Under Art.32 the Supreme Court has
power to commute death sentence into life imprisonment if there is undue delay in execution
of sentence of death. In Delhi Judicial Service Association v. Stale of Gujarat,195 on
September 25, 1989 a horrible incident took place in town of Nadiad in the State of Gujarat.

193
AIR 1961 SC 1451 1461
194
AIR 1982 SC 849
195
(1991) 4 SCC 406

92
The Police Inspector of Nadiad arrested, assaulted and handcuffed the Chief Judicial
Magistrate and tied him with thick rope like an animal and took him openly to the hospital for
medical examination on the alleged charge of having consumed liquor in breach of the State
Prohibition Law. The incident undermined the dignity of Courts in the country. A member of
Bar Associations and the Indian Judges Associations approached to the Supreme Court by
petition under Art.32 for saving the dignity and honour of the judiciary. Seven police officers
were found guilty of committing criminal contempt and sent to jail.

In Delhi Domestic Working Women 's Forum v. Union of India, a public interest litigation
was filed under Alt.32 at the instance of the petitioner Delhi Domestic Working Women
Forum to expose the pathetic plight of four domestic servants who were subject to indecent
sexual assault by seven army personnel. The incident had occurred in train while these six
women were travelling by the Muri Express from Ranchi to Delhi. The Supreme Court with a
view to assisting rape victims has laid down broad guidelines.

6.4 MISUSE OR ABUSE OF PIL -

With the expansion of the scope of writ jurisdiction, more and more PIL came to be filed in
the Supreme Court and the High Courts. Doubts and fears have been expressed against the
abuse of PIL. While expanding the scope of the Locus standi rules this Lordship Bhagwati, J.
(as he then was) expresses a note of caution also. He observed in the case of S.P. Gupta v.
Union of India 197,” 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 the personal gain or
private profit or private motivation or other oblique considerations. The Court must not allow
its process to be abused by politicians and others"

196
(1995) I SCC 14

197
AIR 1982 SC 856

198
(1992) 4 SCC 653

199
(1992) 4 SCC 605

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This observation makes it clear that his lordship was aware this liberal rule of Locus standi
might be misused by vested interests. He, therefore, made it clear that in that case the court
will not allow the remedy to be abused. The cast of Janta Dal v. H.S. Chowdhari, 198 is an
example where the petitioner tried to abuse the public interest litigation for political purposes.
This case relates to purchase of Bofors guns. It was alleged that bribe has been paid to some
Indian politicians and defense personnel to secure the contract or the sale of Bofors guns. The
CBI registered a criminal case against some persons. With the object to collect more
information from the Swiss authorities the CBI filed an application before the Court for the
issue of the letter of rotatory (request) to Switzerland for getting necessary assistance in
conducting investigation. The special judge dismissed the petition on the ground that the
petitioner has no locus standi. Similarly, in

Krishna Swami v. Union of India 199, the petitioner filed a public interest litigation under
Article 32 Of the Constitution for quashing the motion given to the Speaker by 108 members
of the ninth Lok Sabha for initiating proceedings for the removal from office of Mr. Justice
V. Ramaswami of the Supreme Court against whom there were allegations of financial
irregularities. The supreme Court by majority held that the petitioners had no locus standi to
file the petition. The petitioners have no public purpose in filing the petition.

Likewise in Simranjit Singh Mann v. Union of India, 23 the question was whether a third
party who is total stranger to the prosecution culminating in the conviction of the accused
have any locus standi to challenge the conviction and sentence awarded to the convicts
through public interest litigation. The Supreme Court has held that in criminal matters as far
as possible, the Court should be moved only by the accused. The Court has observed that an
aggrieved party is under some disability recognised by law, it would be unsafe to allow any
third party' to question the decision against him.

In B. Singh v. Union of India201, the petitioner, on the basis of a representation of one

Ramsarup, addressed to the President, published in a newspaper, against a person likely to be
appointed a judge of the High Court filed a public interest litigation challenging his
appointment.

200
(1992) 4 SCC 653

94
The petitioner nowhere has stated that he has any personal knowledge of the allegations made
against the respondent. The Supreme Court held that this was a clear and blatant abuse of PIL
filed with oblique motive. The Court held that the PIL filed with reckless allegations and
vitriolic statements against judges and persons whose names were under consideration for
judgeship must be sternly dealt with. The petitioner is a business person seeking publicity and
not interested in welfare of judicial system.

In Guruvayur Devasawom Managing Committee v. C.K. Rajan. 202 a three judge beach of the
Supreme Court, with a view of checking the abuse of PIL, re-examined its scope and ambit in
detail and reiterated the guiding principles for its exercise. In this case a special leave petition
was filed in the Supreme Court by the management committee of the temple. The Supreme
Court held that public interest litigation was evolved with a view to render justice to poor,
depraved, the illiterate and downtrodden that have either no access to justice or had been
denied justice. It cannot be used for removing corruption in a temple.

In the case of BALCO Employees Union v. Union of India,203 the Supreme Court had made it
clear that the public interest litigation is not meant to be a weapon to challenge the financial
or economic decisions which are taken by the Government in the exercise of their
administrative power. No doubt a person personally aggrieved by any such decision, which
he regards as illegal, can impugn the same in a court of law, but public interest litigation at
the behest of stranger ought not to be entertained. Such litigation cannot per se be on behalf
of the poor and the downtrodden, unless the Court is satisfied that there has been violation of
Article 21 and the persons adversely affected are unable to approach the Court. The decision
to disinvest and implementation thereof is purely an administrative decision relating to the
economic policies of the State and challenge to the same at the instance of a busy-body
cannot fall within the parameters of the public interest litigation. The Court has observed that
whenever the Court has interfered and given directions while entertaining public interest
litigations it has mainly been where they have been initiated for the benefit of the poor and
the under-privileged who are unable to come to the Court due to some disadvantage. In those
cases, also it is the legal rights which are secured by the courts.

_______________________

202
AIR 2004 SC 1923

203
AIR 2002 SC 350

95
However, the public interest litigation is not meant to be a weapon to challenge the financial
or economic decisions which are taken by the government in exercise of their administrative
powers. It has been said that the judges deciding PIL cases, have crossed the limits of judicial
propriety, to take over the administration which was beyond the scope of their jurisdiction.
The trend of the Courts in awarding compensatory and exemplary damages against the State
was not much liked by the executive. It has been said that the Courts have been flooded with
PIL cases in matters which are beyond their control and jurisdiction and it would also add to
the arrears of cases in the Supreme Court and the High Courts. The Government was thus
moved to bring forth a legislation imposing monetary restrictions on the citizens.

Admittedly, there are some dangers in public interest litigation. Liberalizing the rule of locus
standi and growth of epistolary jurisdiction do have some inherent dangers of abuse by vested
interests impelled by personal vendetta, media — craze or other dubious motives. It has been
held that PIL should not be used for personal gain, political motivation or oblique
consideration and that it should be aimed at redressal of genuine public injury. 04 This
misuse comes in various forms. The first is what Justice Prasayat in the case of Ashok Kumar
Pandey v. State of W.B 205 describe as "busybodies, meddlesome interlopers, wayfarers or
officious interveners who approach the court with extraneous motivation or for glare of
publicity". Such litigation is described as "publicity interest litigation" and the courts have
been distressed with such litigation. Examples of this kind of litigation are innumerable. No
sooner has an event of public interest or concern occurred than there is a race to convert the
issue into a PIL. This misuse comes in various forms. The first is what Justice Prasayat in the
case of Ashok Kumar Pandey v. State of W.B. 206 describe as "busybodies, meddlesome
interlopers, wayfarers or officious interveners who approach the court with extraneous
motivation or for glare of publicity" Such litigation is described as "publicity interest
litigation" and the courts have been fraught with such litigation. Examples of this kind of
litigation are innumerable. No sooner has an event of public interest or concern occurred than
there is a race to convert the issue into a PIL.

__________________________

204
A.K. Pandey v. state of W.B. AIR 2004 SC 280.
205
AIR 1982 SC 856.
206
AIR 1982 SC 856.
207
AIR 1982 SC 149.

96
Then, we have the misuse of PIL by political interests. In the case of S.P. Gupta v. Union of
India, 207 Justice Bhagwati said, "But we must be careful to see that the member of the
public, who approaches the court in cases of this kind, is acting bona fide and not for personal
gain or private profit or 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 to delay legitimate administrative action or to
gain a political objective. Andre Rable has warned that 'political pressure groups who could
not achieve their aims through the administrative processes and we might add, 'through the
political process, may try to use the courts to further their aims'. These are some of the
dangers in public interest litigation which the court has to be careful to avoid.

Equally disturbing aspect is the misuse of PIL by hidden litigants. This is happening in all
sorts of matters; rival business groups are setting scores by resort to PIL. Persons who
describe themselves as "public spirited persons" and others as "social organizations" emerge
suddenly and multiply. A case in point is the judgement of Chief Justice Sabharawal in T.N.
Godavarman Thirumaulpad v. Union of India. 24 Following the decision in Janata Dal's case,
and Justice Pasayat and Justice Kapadia's decision in Dattaraj Nathji Thauvare v. State of
Maharashtra209, the learned judges observed that however 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 scare means, had spent huge amount 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. Yet, this is
happening all the time; there are various ways in which judges can and should see through the
bona fides of such litigants.

208
AIR 2006 SC 1774
209
AIR 2005 SC 540
210
AIR 1982 SC 149
211
AIR 2005 SC 540
97
Then, we have the misuse of PIL by political interests. In the case of S.P. Gupta v. Union of
India, 210 Justice Bhagwati said, "But we must be careful to see that the member of the
public, who approaches the court in cases of this kind, is acting bona fide and not for personal
gain or private profit or 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 to delay legitimate administrative action or to
gain 'a political objective. Andre Rable has warned that 'political pressure groups who could
not achieve their aims through the administrative processes and we might add, 'through the
political process, may try to use the courts to further their aims'. These are some of the
dangers in public interest litigation which the court has to be careful to avoid.

Equally disturbing aspect is the misuse of PIL by hidden litigants. This is happening in all
sorts of matters; rival business groups are setting scores by resort to PIL. Persons who
describe themselves as "public spirited persons" and others as "social organizations" emerge
suddenly and multiply. The decision in Janata Dal's case, and Justice Pasayat and Justice
Kapadia's decision in Dattaraj Nathji Thauvare v. State of Maharashtra, 211 the learned
judges observed that however 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 scare
means, had spent huge amount 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. Yet, this is happening all the
time; there are various ways in which judges can and should see through the bona fides of
such litigants.

Taking a strict view of "frivolous petitions" that flood the Courts, the Bombay High Court in
an unprecedented move has ordered a citybased organization, Bhrastachar Nirmoolan
Sanghatana, to pay Rs. 40 lakh as legal costs after dismissing their public interest litigations
against a super — luxury tower on Peddar Road.

Terming it as an "abuse of the process of law". a division bench of acting Chief Justice JN
Patel and Justice BR Gavai said that the tendency to file PIL on flimsy grounds needed to be
curbed.

98
The Court remarked that it had become a practice to obtain information under the Right i
Information Act. A flood of such RTI-based PIL, many with sketchy details, had been filed,
added the court. "The petitioners who drag people to court themselves do not have anything
to lose," said the court, adding that it caused harm not only to the finances of the respondents
but also to their reputation.

A judge need not be a scientist to see through all matters. For instance, when public interest
litigation is being pursued by lawyers, who take high fees there may not be any genuine
public interest. This is particularly so when lawyers go to various cities to settle corporate
matters or stop public projects, developments or tenders. There are cases which are fought not
only in the High Court but pursued in the Supreme Court with great vigour. 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" Justice
P.B. Savant. 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 char.

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 CHAPTER - 7

CONCLUSION & SUGGESTION

Rights in order to be meaningful must be enforceable and backed by remedies in case of

violation. The Constitution not only guarantees certain Fundamental Rights but under article
32 it also guarantees the right to move the highest Court in the land directly by appropriate
proceedings for the enforcement of the Fundamental Rights. The Supreme Court may issue
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari.
Parliament may empower any other courts also to exercise these powers. The right
guaranteed by article 32 cannot be suspended except as provided by the Constitution. For
example, during a proclamation of Emergency

(a) the right to move Court for enforcement of any of the Fundamental Rights except
articles 20 and 21 can be suspended under article 359 and

(b) executive and legislative power of the State shall not stand restricted under article 358
by the rights to freedom enshrined in article 19.

Where the suspension of Fundamental Right is protected by the Constitution, article 32 will
not apply. It has been held by the Supreme Court that this right cannot be taken away even by
amending the Constitution as it is a basic feature of the Constitution. Even at the time of
framing the Constitution, Dr. Ambedkar had described this provision as the very soul and
heart of the Constitution. Only the Fundamental Rights guaranteed by the Constitution can be
enforced under article 32.

Article 32 is not exactly concerned with an erroneous order or even with the
unconstitutionality of a legislation unless it directly affects or invades any of the Fundamental
Rights. Since right to constitutional remedy under article 32 is itself a Fundamental Right, the
Supreme Court may not refuse relief for violation of a substantive Fundamental Right. Article
226 grants powers to the High Courts also to issue various writs. In case of violation of
Fundamental Rights, the Supreme

Court and the High Courts both have concurrent jurisdiction and an affected person can
approach either. However, the Supreme Court has since held that where relief through High
Court under article 226 is available, the High Court should be approached first.

99
Under the new concept of public interest litigation propounded by the Supreme Court in the
Transfer of Judges case, it is no more necessary to be the affected party to approach the Court
for violation of Fundamental Rights. Any member of the public can do so even through a
letter on behalf of a person or group of persons who for any reason may not be in a position
to approach the Court.

The High Court and the Supreme Court has wide power under article 226 and article 32 of
the Indian Constitution. Under these two articles the courts can issues any order or direction
or writs to any person in order to protects its fundamental rights or legal rights given under
Constitution. However, the part approaching the court as to established that its right has been
infringed or illegally invaded or threatened.

Generally, the courts have the power to issues five types of writs i.e., Habeas Corpus,
Mandamus, Certiorari, Prohibition and quo warranto. Other than these writs the courts also
have power to issue direction, order etc. in order to safeguard the rights of the citizens.
However, if the citizen has an alternative remedy then in that case court do not entertain the
petition for writs. Similarly in case of inordinate delay court do not entertain the case until
unless there is valid ground for it

As society grow or developed the problems of the people also grow as result law plays very
important role and they had many uses. Similarly, there are so many uses of writs in today's
time which are follows-

1. It protects the Fundamental right of the person.

2. Rule of law is maintained in the society.

3. The executive authority is to be corrected whenever they transgress their limit Of their
power given to them and encroach upon the rights of the citizens.

4. Writs also protect the human rights and natural rights of the citizens.

5. It also forces the authorities or the public servant to do their duty as they are legally
bound to do it.

6. Writs also protect the person from illegal detention and ask the authority to present
the person before the nearest magistrate within 24 hrs.

So these are some uses of the writs, but as we know that any law has some plus point as well
as some negative point. Similarly, writs also have some negative point. There is some misuse
100
of writs also. The writs jurisdiction given by the Constitution for judicial review over
administrative action is discretionary and unbounded. And it is necessary that this discretion
should be exercised on sound principle, but sometimes it happens that these powers are
exercised illegally and not on sound judicial principles. Sometimes the authority while
exercising the writ jurisdiction also violates the principles of natural justice which is one of
the most principles of the law.

The prerogative powers of writ jurisdiction conferred by the constitution for judicial review
of administrative action is undoubtedly discretionary and yet unbounded in its limits. The
discretion however should be exercised on sound legal principles. In this respect it is
important to emphasise that the absence of arbitrary power is the first essential of the rule of
law upon which the whole constitution system is based. In a system governed by rule of law
when discretion is conferred upon the executive authorities it must be based on clearly defied
limits. Thus the rule of law from this point of view means that the discretion or the decision
must be based on some principles and rules. In general, the decision should be predictable
and citizens should know where he is. If a decision is taken not on the basis of any principle
or rules, then such decision is arbitrary and is taken not in accordance with the rule of law

public Interest Litigation which is also developed under the writ jurisdiction suffered from
some misuse. As a result, the Apex court of the country lay down certain guidelines and
principles for the management and disposal of the PIL. Many activists use this PIL as a tool
of harassment and friv010US cases can be filed frivolous case be filed without any court fees
or better to say heavy court fees as required in the private civil litigation

The abuse of the PIL become o rampant that the genuine case either receded to the suspicious
generated by the spurious causes which have a private motive or interest. There are so many
cases of the PIL which are privately motivated but filed in the name of the interest of the
general public.

So at the end it can be said that the writs which is the soul of our very constitution had
positive effect in the society only if he is used judiciously and for the benefit of the society.
But sometime people misuse it for their own benefit which should be avoided for the
betterment of the society and for that judiciary should become more careful and vigilant so
that the writs can't be misused.

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 BIBLIOGRAPGY

I. Websites
 http://supremecourtofindia.nic.in/iurisdiction
 http://www.legalserviceindia.com/article/1402-Role-Of-Writs-ln-The-
Administrative-Law
 https://www.arc.ag.gov.au
 https://www.gktoday.in/academy/article/types-of-writs-in-the-constitution-of-
india
 http://lexisnexis.in/writs-and-other-constitutional-remedies.htm
 http://www.iurisedge.com/

II. Books
 Durga Das Basu, Shorter Constitution of India, Lexis Nexis, 2012, 14th edition,
p.568.
 V.N. Shukla’s, Eastern Law Company,2013, 12th Edition
 M.P Jain, Constitution of India, Eastern Book Company, 2013.
 Wharton’s law dictionary

III. Bare Acts

 Bare Act of Constitution of India
 Bare Act of Code of Criminal Procedure
 Indian Penal Code

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