ARTICLE 32 – RIGHT TO REMEDY (WRITS)
Introduction
Article 32 of the Indian constitution deals with constitutional Remedies. The framers of the constitution incorporated real rights. They have also provided effective remedies for the enforcement of rights under Article 32. Article 226 also empowers the high court to issue the writs for the enforcement of fundamental rights.
Article 32 of the constitution
Article 32(1): The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by part III of the constitution.
Article 32(2): The Supreme Court shall have the power to issue directions (OR) Orders (OR) Writs. Writs in nature of Habeas corpus, Mandamus, Prohibition, Quo warranto, Certiorari. Whatever may be appropriate for the enforcement of rights under part III.
Article32 (3): Without prejudice to the power conferred on these Supreme courts, to any other court exercise within the local limits of jurisdiction. All or any power excisable by the supreme court under clause (2).
Article32 (4): The rights guaranteed under article 32 shall not be suspended except for emergency time.
Writ of Habeas Corpus
Habeas corpus means have the corpus or bring the body. The writ is issued for securing the release of a person from illegal detention. This writ is the most important one from the point of view of maintaining the liberty of movement. The main objective of the writ is to set free a person who is illegally detained by a person or authority. The writ of Habeas Corpus can apply a person who is illegally detained can apply for the remedy. Sometimes it is not possible to apply the person illegally detained. So the person who behalf of the prisoner can apply. The writ of habeas corpus can be made by a friend or relative of the prisoner. A detained person can apply even by a postcard from jail. The important purpose of habeas corpus is not only the release of the prisoner but also to protect the person from inhuman treatment in jail. Conditions to grand habeas corpus:-
The detention must be illegal and unwarranted by law.
The detention should be illegal at the time of filling the
Application or time of the hearing.
Case laws:-
Talib Hussain V. State of Jammu& Kashmir
In this case, the Supreme Court held that to issue the writ of habeas corpus proceedings the court should consider the illegality of detention at the date of hearing.
A.K Gopalan V. State of Madras
In this case, the court held that the writ of habeas corpus will lie if the power of detention vested in authority was exercised maliciously.
Writ of mandamus
The writ in nature of mandamus is an order issued by the Supreme Court or a high court to any government, courts, public authority or corporation, or a person invested with public duty. It is a command to perform some public duty in which the petitioner has sufficient legal interest. The writ of mandamus will be issued when there is a failure to perform a mandatory duty by a public authority. The writ of mandamus does not lie against a private individual or any private organization because they are not entrusted with public duty. The person whose legal right is violated by the non-performance of a public duty can apply for the writ of mandamus
Conditions to grand mandamus:-
The petitioner must have a legal right that can be judicially enforceable.
There must be some duty cast on the respondent.
The duty must be public and mandatory nature cast by law
The petitioner must have made a demand for the performance of that duty.
The public authority or officer concerned must refuse to do that duty.
Case law:-
Barada Kanta Adhikary V. State of West Bengal
In this case, the court held that the writ of mandamus does not lie against private individuals or private organizations because they are not entrusted with a public duty
State of MP V. Mandawar
In this case, Supreme Court held that the writ of mandamus could not be issued to compel the government to exercise its powers.
Writ of Quo warranto
The word quo warranto means what is your authority. The writ is issued when a person has illegally occupied or usurped an office or post. To show by what authority he holding that office. The object of the writ of quo warranto is to prevent a person from holding an office that is not legally entitled to hold. Any person can apply for the writ of quo warranto.
Conditions to grant Quo warranto:-
The office in question is a public office.
It is held by a person without legal authority
Case laws:-
Arya pratinidhi sabha V. State of Bihar
In this case, Arya Pratinithi Saba is a private association. To issue the writ of quo warranto. The office in question should be a public office. The court refused to grant the writ.
Baij Nath V. State of UP
In this case, Supreme Court held that the holder of an office has continuing office for a long time and there is no complaint against him, the court refused the writ as it would have been vexatious.
Writ of prohibition
The writ in nature of prohibition is issued by the superior court to inferior court, tribunal, or quasi-judicial bodies. It prevents the inferior court from exercising the jurisdiction which they do not possess or which is not legally vested in them. A writ of prohibition lies only against judicial authority. A person whose right is violated can apply for the writ of prohibition
Conditions to grand prohibition:-
The writ can only be issued against judicial or quasi-judicial bodies
It can be issued when these judicial or quasi-judicial bodies exceed the jurisdiction.
The proceedings must be pending before the inferior court at the time when this writ was issued.
Case laws:-
Hari Vishnu kamath V.Ahamad ishaque
In this case, the court refuses to grant the writ of prohibition.
Where, before issuing the writ the authority becomes "Functous officio". Prohibition will not be an appropriate remedy.
Sewpajan Rai Indrasana Rai Ltd V. Collector of customs
In this case, the Supreme Court held that where proceedings are partly within the jurisdiction of authority and partly within the excess of jurisdiction. The writ will lie against part of the proceeding which is over jurisdiction.
Writ of certiorari
The writ in nature of certiorari issued by the superior court to an inferior court or quasi-judicial body, to act within the limits of its jurisdiction. It is to quash or nullify an order made without jurisdiction or in violation of the rules of natural justice by an inferior court or judicial or quasi-judicial bodies. The person whose legal right is violated can apply for the writ of certiorari.
Conditions to grand certiorari:-
Error apparent on the record.
Excess of jurisdiction.
Illegal excise of jurisdiction
Violation of the rules of natural justice
Case laws:-
State of UP V. Mohd.Nooh
In this case, the court held that the writ of certiorari issued to a judicial or quasi-judicial body to act within the limits of jurisdiction and to quash or nullify an order without jurisdiction or in violation of rules of natural justice.
Conclusion
The framers of the constitution intended and preferred to incorporate real rights. It is the remedy that makes the right real. Hence, the remedies under articles 32 and 226 of the constitution are the very heart of it. Otherwise, the constitution would be a nullity.
- Rinal Rose Pauly
Mahatma Gandhi University