Right to Constitutional Remedies: Article 32 | Constitutional Law - CLAT PG PDF Download

Right to Constitutional Remedies

 Article 32 

• Article 32 is considered by Dr. Ambedkar as the "spirit and heart of the constitution."
• The Supreme Court has included it in the fundamental structure of the Constitution.
• The right to approach the Supreme Court under Article 32 cannot be suspended except as provided by the Constitution.
• This right can be suspended during a national emergency under Article 359.
• Article 32 empowers the Supreme Court to protect and enforce fundamental rights.
• It allows individuals to approach the Supreme Court directly for remedies through writs.
• Article 32 is applicable only for fundamental rights listed in Articles 12 to 35 and not for other legal rights.

What is a Writ? 

• A writ is a formal written order issued by a court in the name of the king, president, or state, commanding someone to perform a specific act. It can be used to initiate a legal proceeding or as part of an ongoing case.
• In old English law, a writ was a written instrument, often in the form of a letter or letters of attorney.
• Historically, the term "writ" was used interchangeably with "action," leading to the classification of writs into real, personal, and mixed categories.
• In Scottish law, a writ referred to any written instrument, such as a deed, bond, or contract.

Constitutional Philosophy of Writ Jurisdiction 

• Article 32(2) of the Indian Constitution empowers the Supreme Court to issue various writs, including habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for the enforcement of fundamental rights.
• Article 32 is a fundamental right under Part III of the Constitution, allowing the Supreme Court to relax the traditional rule of Locus Standi and permit public interest litigation (PIL).

Comparative Analysis of Article 32 & 226 

• Article 32 is not meant for the violation of individual contractual rights, nor for issues that can be resolved under other laws.
• Article 226(1) empowers every High Court to issue directions, orders, or writs, including habeas corpus, mandamus, prohibition, quo warranto, and certiorari, for the enforcement of fundamental rights and other legal rights.
• Article 226 gives broader powers to High Courts compared to Article 32, allowing them to control the administration and enforce rights under Part III and other legal rights.
• The powers under Article 226 cannot be limited by legislation, making it a significant source of judicial authority for High Courts.

Types of Writs 

 Habeas Corpus 

•  Meaning:  This writ orders the person who has detained another to bring the detainee before the court, explaining the grounds for detention and releasing them if there is no legal justification.
•  The General Principle:  Habeas Corpus is based on the principle that a person unlawfully detained without legal proceedings is entitled to seek this remedy.
•  Nature of Writs:  In cases like Narayan v. Ishwarlal, the court determines whether Habeas Corpus writs are civil or criminal based on the procedure followed in the jurisdiction.
•  How to File a Writ of Habeas Corpus: 
  • Any person can file an application for habeas corpus on behalf of the prisoner/detenu, or the prisoner/detenu can file it themselves.
  • Even a letter to the judge highlighting illegalities against prisoners can be accepted. In Sunil Batra v. Delhi Administration, a convict's letter alleging torture to a fellow convict was treated as a habeas corpus petition by Justice Krishna Iyer.
  • Courts can also take action suo motu in the interest of justice based on information received from any source.
•  Habeas Corpus is not issued in certain cases: 
  • When the detained person or the person against whom the writ is issued is not within the court's jurisdiction.
  • To release a person imprisoned by a court for a criminal charge.
  • To interfere with contempt proceedings by a court of record or Parliament.
•  Implication in Emergency:  In the landmark case of ADM Jabalpur v. Shivakant Shukla, it was held that the writ of Habeas Corpus cannot be suspended even during an emergency (Article 359).
•  Damages:  The court may award exemplary damages. In Bhim Singh v. State of Jammu & Kashmir, the Supreme Court awarded exemplary damages of Rs.50,000/- for unlawful detention, which was a significant amount at the time.
• Thus, the writ of habeas corpus is a crucial safeguard of personal liberty, considered a "great constitutional privilege" and the first security of civil liberty, providing a speedy and effective remedy.

Notable Cases for Writ of Habeas Corpus 

•  Kanu Sanyal v. District Magistrate:  The Supreme Court clarified that in writ of habeas corpus cases, the court can review the legality of detention without needing the detained person to be present.
•  Nilabati Behera v. State of Orissa:  In this case, the Orissa police detained the petitioner’s son for questioning, and he went missing. Later, his body was discovered on a railway track. The petitioner was awarded Rs. 1,50,000 as compensation.

 Mandamus 

•  Meaning:  A writ issued by a court to compel a lower court, governmental officer, or body to perform a specific act, correct a prior action, or address a failure to act.
•  Usage:  Mandamus is employed to enforce public rights, compel statutory authorities to fulfill their duties, and rectify wrongful exercises of power or refusals to act.
•  Rule of Locus Standi:  Strictly observed in mandamus cases. The petitioner must demonstrate a right to enforce a public duty in their favor. Mandamus is granted if the duty is public and particularly impacts an individual's right, provided no more suitable remedy exists.

 Conditions for Issuing Writ of Mandamus 

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

 Exceptions and Limitations for Mandamus 

• In India, mandamus can be issued against officers and the Government, as per Articles 226 and 361.
• Mandamus does not lie against the President or Governor for acts done in the exercise of their office.
• It does not lie against a private individual or body unless colluding with the State.
• It does not lie against the State legislature for considering a law alleged to violate constitutional provisions.
• Mandamus is not refused on the basis of an alternative remedy when fundamental rights are infringed.

 Landmark Cases for Writ of Mandamus 

In the case of S.P. Gupta v. Union of India, the court ruled that a writ of mandamus cannot be issued against the President of India for matters related to the appointment of judges in High Courts.

In C.G. Govindan v. State of Gujarat, the court declined to issue a writ of mandamus against the Governor regarding the approval of salaries for court staff by the Chief Justice of the High Court under Article 229.

 Prohibition 

 Meaning:  A writ of prohibition, also known as a 'stay order', is issued to a lower court or body to stop acting beyond its powers.

 Purpose:  The basic purpose is to secure that the jurisdiction of an inferior court or tribunal is properly exercised and that it does not usurp the jurisdiction which it does not possess.

 Principle:  Prohibition is a writ of preventive nature. The principle of this is 'Prevention is better than cure'.

 Grounds for Issuing Writ of Prohibition: 

• Absence or Excess of jurisdiction
• Violation of the principles of natural justice
• Unconstitutionality of a Statute
• Infraction of Fundamental Rights

 Landmark Case Laws for Writ of Prohibition 

• In the case of East India Commercial Co. Ltd v. Collector of Customs, a writ of prohibition was issued against an inferior Tribunal, prohibiting it from continuing proceedings that were deemed to be without or in excess of jurisdiction or contrary to the laws of the land.
• In the case of Bengal Immunity Co. Ltd, the Supreme Court emphasized that when an inferior tribunal exceeds its jurisdiction, the writ of Prohibition should be issued as a right, regardless of other considerations.

 Certiorari 

 Meaning:  The writ of certiorari is issued to quash a decision made by a lower tribunal. Unlike prohibition, which is issued before the completion of proceedings, certiorari is issued after a decision has been made.

 Purpose:  The writ of certiorari serves not only to quash an action but also to take affirmative action. It is both preventive and curative in nature. Judicial review is not limited when glaring injustice demands affirmative action.

 Ways in Which a Writ of Certiorari is Issued 

• Certiorari is issued against judicial or quasi-judicial orders, not against purely administrative or ministerial orders.
• It can be issued when there is either a lack of jurisdiction or excess of jurisdiction.
• It can be issued in violation of the principles of Natural Justice.
• It can be issued if the procedure established by law is not followed.
• It can be issued if there is an error in judgement evident on the face of the record.

 Conditions for Issuing Writ of Certiorari 

• The body issuing the writ must have legal authority.
• It must determine questions affecting the rights of subjects.
• It must act judicially.
• It must exceed legal authority.

 Landmark Cases on Writ of Certiorari 

• In Naresh S. Mirajkar v. State of Maharashtra, it was established that High Court's judicial orders are subject to correction by certiorari, and the writ is not applicable against the High Court.
• In T.C. Basappa v. T. Nagappa & Anr., the constitution bench held that certiorari is generally granted when a court acts without jurisdiction or in excess of its jurisdiction.
• In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court clarified the meaning and scope of Certiorari, stating it is available against inferior courts but not against equal or higher courts.
• In A.K. Kripak v. Union of India, the Supreme Court issued certiorari to annul the Indian Forest Service selection list due to a selection committee member's conflict of interest.

 Quo Warranto 

•  Meaning:  The writ of Quo Warranto (by what warrant) is issued to inquire about the legality of a claim by a person or authority to act in a public office, which he or she is not entitled to.
•  Purpose:  The writ is used to review the actions of the administrative authority that appointed the person to the public office. It is meant to oust someone from holding a public post to which they have no right.
•  Conditions for Issuing Quo Warranto: 
• The office in question must be public and created by statute or constitution.
• The office must be substantive, not merely a function or employment of a servant at will.
• There must be a contravention of the Constitution or a statute in appointing the person to the office.
• The claim to the office must be asserted by the public servant (respondent).

 Quo Warranto Cases 

• When the public office in question is substantive. A petition against a private corporation cannot be filed.
• The office must be created by the State or the Constitution.

 Quo Warranto and PIL 

• PIL in India has evolved with legal activism. Issues of fundamental rights violations are brought to the court's attention through writ petitions.
• Article 32 empowers citizens to seek writs against the state, with writ jurisdictions being discretionary but not limited.
• The judiciary has the authority to control administrative actions infringing fundamental rights, ensuring the Rule of Law and balance among the three branches of government.