We know that India is often considered to be the largest democracy in the world. To protect democracy, the Constitution of India plays the most important role to protect the freedom, life, and liberty of individuals within the limits of reasonable restrictions. It laid down the provisions to protect the rights of common citizens to claim ‘Constitutional Remedies’ in the cases of any violations of their Fundamental Rights contained in Part III of the Constitution. On the other hand, the High Courts and Supreme Court of India have been given the status of ‘Constitutional Courts’ by the Constitution.
Those Constitutional Courts are often termed as the ‘Watch-dog of Indian Constitution’ and the Judges of the Courts are often termed as the ‘Guardian of Indian Constitution’. For this reason, the role of the judiciary is recognized as equally vital along with the other branches of the Government to protect the democratic system of a country for upholding their Fundamental Rights of the citizens within the limits of reasonable restrictions. Therefore, it becomes the duty of the Constitutional Courts to ensure the Fundamental Rights of the citizens. The High Courts and Supreme Courts are empowered by the Constitution of India to do so in the course of administration of justice. Articles 32 and 226 of the Indian Constitution empower the Supreme Court and the High Courts respectively to exercise their ‘Writ jurisdictions’.
The founder father of the Indian Constitution- Dr. B.R Ambedkar once said that these provisions of Rights to Constitutional remedy form ‘the very heart and soul of the Indian Constitution’. It makes clear the basic intention of the framers of the Constitution to insert Articles 32 and 226 into the Constitution. It is because of the in absence of these provisions, the other provisions relating to Part III of the Constitution become invalid and unenforceable.
Under Articles 32 and 226 of the Indian Constitution, any person whose Fundamental Rights are violated by any act of the State or Authority can directly approach to the Supreme Court and High Courts respectively filing a writ petition and the concerned court may pass any writ as mentioned in both the Articles, exercising its writ jurisdiction if it deems fit to provide Constitutional remedies to him. The powers of the High Courts under Article 226 are sometimes considered to be broader than the Supreme Court because it doesn’t only contain the Constitutional remedies, but also the other remedies guaranteed in the different parts of the Constitution.
The origin of writs in India actually goes back to the Regulating Act, 1773 under which the Supreme Court was established at Calcutta in the British period. The charter of the Act also established other High Courts and also gave them the power to issue certain writs as a successor of the Supreme Court. But the writ jurisdiction of these courts was limited to their original civil jurisdiction which they enjoyed under Section 45 of the Specific Relief Act, 1877. Later, when the Constitution of India came into force in 1950 after the Independence, the writ powers were given by the Constitution itself under Articles 32 and 226. A writ can be understood as a formal written order issued by a Court having the authority to issue such orders, warrants, directions, summons, etc to provide Constitutional remedies in order to protect the Fundamental Rights of citizens of the country.
As per Article 32 of the Indian Constitution–
Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution
Thus the judicial review of the administrative actions becomes very necessary to ensure that the actions are proper, legal, just and fair, and reasonable in the eyes of law. These writ jurisdictions of the High Courts and Supreme Court play the key role by acting as safeguards of the Fundamental Rights and assurance of Natural Justice of citizens. It basically satisfies the notable maxim- ‘Ubi jus ibi remedium’ which means where there is a right, there is a remedy.
DIFFERENT TYPES OF WRITS:
Article 32 of the Indian Constitution refers specifically to 5 types of writs to provide Constitutional remedy. Those are:
- Writ of Habeas Corpus
- Writ of Certiorari
- Writ of Prohibition
- Writ of Mandamus
- Writ of Quo warranto.
1. Writ of Habeas Corpus:
Habeas Corpus means ‘Show me the body’ or ‘Let us have the body’. When someone is arrested by any detaining authority, he must be produced before the nearest magistrate within twenty-four hours as per Article 22. Such detention can be termed as ‘illegal detention’. If the arrested person is not produced before any court within the stipulated time period, he may file a Habeas Corpus writ petition directly to the Supreme Court under Article 32 of Indian Constitution and the Court will examine this matter whether the detention of the person is lawful or not.
If the Court is satisfied with the fact that the person is detained without any valid lawful justification, the Court may pass an order to release the person immediately. Thus this writ ensures that no person can be detained by any authority without the order of any court. If any person is found to be arrested without any lawful justification or any sufficient cause or evidence, the person will be released immediately by the Court. In this way, the Supreme Court provides a remedy to a person who was illegally detained by any authority exercising its writ jurisdiction. Likewise, if the Court finds that the detention has any legal ground, the remedy will not be granted by the Court. Thus this writ plays the most vital role to safeguard the personal liberty of the individuals from the arbitrary actions of the State.
In the case, Rudal Shah V. State of Bihar AIR 1983 SC, “the petitioner was acquitted from Muzaffarpur Bihar on 3rd June 1968 but he was released on October 16, 1982, that is to say, more than 14 years after he was acquitted. The petitioner, by a habeas corpus petition, asked for his release on the ground that his detention in the jail is unlawful. He also asked for certain ancillary reliefs like rehabilitation, reimbursements of expenses which he may incur for medical treatment, and compensation for the illegal incarceration. It was held that the detention was illegal as he was not brought before the magistrate court. Thus, the court ordered to give compensation of 30 thousand rupees.”
The discussion of Habeas Corpus remains incomplete without the famous case ADM Jabalpur vs. Shiv Kant Shukla. “This case is also known as the habeas corpus case and it was based upon the grounds of issuance and the viability aspect of this writ. This whole case spins around the situation when the emergency was proclaimed and the question was raised whether the writ of habeas corpus is maintainable in this situation or not. It was held that as in the case of Liversidge v. Anderson during an emergency all the rights were held suspended, the same was held in the instant case where a state has the power to restrain the rights especially the right to life enshrined under Article 21 of the Indian constitution in an emergency situation. This decision was considered to be the darkest day of Indian history.” This judgment was overruled by the Supreme Court itself in the case of Justice K.S.Puttaswamy(Retd) vs Union Of India, as it was held that the ‘Right to Privacy is an integral part of Article 21 of the Constitution of India’.
2. Writ of Certiorari:
The literal meaning of Certiorari is ‘to be certified’. This writ of Certiorari is issued by the Supreme Court or High Court in the exercise of the writ jurisdiction to some inferior court or tribunal to transfer the matter to it or to any other superior authority for proper consideration. This writ can also be issued by the Superior Court to quash or transfer the case to itself. When any order already passed by a lower court or tribunal if the superior court thinks that the lower court acted beyond its jurisdiction or missed out on any important facts relating to the case or made some error in deciding the particular case, the court can quash or transfer the case to itself issuing this writ. This writ is only available when the order of the lower court or tribunal is already passed.
- When there is an error of jurisdiction.
- When the court has not given the proper time for both parties to be heard or has violated principles of natural justice.
- This writ is supervisory in nature, and thus the High court cannot review the findings of the lower courts.
- If the error is evident.
3. Writ of Prohibition:
Prohibition means ‘to stop’ or ‘to prohibit’. This is commonly known as ‘stay order’. This writ can be issued by any courts of superior jurisdiction to its inferior courts to forbid the court from passing any order relating to a particular case. This is usually used when the lower court transgresses its jurisdiction or violates any principles of natural justice. If any lower court exceeds its legal jurisdiction in a proceeding pending before it or acting in contrary to the principles of natural justice, the Supreme Court or High Court can pass a stay order to forbid that court from acting beyond the jurisdiction which is vested in it in a case pending before it.
It is in contrast with the writ of Certiorari because the writ of certiorari can only be passed when the lower court has already announced its order. But, the writ of prohibition can only be passed when the lower court has not yet announced its order. It is often said that ‘prevention is better than cure’.
In the case, Calcutta Discount Co. Ltd. v. ITO, “Supreme Court held that when a subordinate court or tribunal is shown decisively that they have acted in excess of their jurisdiction, the court will issue a writ of prohibition regardless of whether there exists an alternative remedy or not.”
4. Writ of Mandamus:
Mandamus means “We Command”. It is issued by the Supreme Court or High Courts to the lower courts or tribunal or any public authority to perform its public duty. When any authority denies performing its public duty vested in it or denies exercising its jurisdiction which is legally vested in it, the Supreme Court or High Court by issuing this writ can compel the authority or lower court or tribunal to exercise its jurisdiction and perform its public duty.
It may not be claimed as the right of an individual. It is the discretionary power of the Superior Court to issue such writs. It plays an important role to secure the private rights of individuals withheld by public authorities when the authorities refuse to perform their public duty.
The basic purpose of this writ is to check whether the Government machineries are acting properly or not and secure the rights of individuals from any breach of mandatory duty committed by any public authority.
These are some important features of the writ of mandamus:
- The writ of mandamus can only be granted when there is a right of the applicant to compel the performance of some duty cast upon the authority. The duty which is sought to be enforced must be a public duty and not a private duty.
- A writ of mandamus can also be issued to the public authority to restrain it from acting under a law that has been declared unconstitutional.
- The writ of mandamus can only be granted in cases where there is a statutory duty imposed upon the officer concerned, and there is a failure on the part of that officer to discharge the statutory obligation.
In the case State of West Bengal vs Nuruddin, “Supreme Court held the writ of mandamus is a personal action where the respondent has not done the duty they were prescribed to do by law. The performance of the duty is the right of the applicant.”
5. Writ of Quo Warranto:
The writ of Quo Warranto means “by what warrant”. This writ is issued by the Supreme Court or High Courts with a view to restraining a person from holding a public office for which he is not entitled. The Court orders the authority to show his warrant to check whether he is holding that public office legally or illegally. If a public authority acts without lawful authority, the Court can issue this writ to prevent illegal usurpation of any public office by anybody.
The basic purpose of issuing this writ is to review the executive actions with regard to the appointments made against any statutory provisions to public offices and protect the rights of common citizens who are deprived of their right to hold a public office. Similarly, this writ can only be issued against public authorities, not private authorities.
In the case University of Mysore v. Govinda Rao, “Supreme Court observed that the procedure of quo Warranto confers the jurisdiction and authority on the judiciary to control executive action in making the appointments to public offices against the relevant statutory provisions; it also protects a citizen being deprived of public office to which he may have a right.”
The Supreme Court is the ‘Sentinel Qui Vive’ of the Indian Constitution which cannot be made hollowed by the political ruses and complots. As we have discussed above, the provisions for issuing the writs under Article 32 and 226 of the Indian Constitution to provide Constitutional remedies form the very basis of the democratic system.
The Constitutional courts are empowered to protect the Fundamental Rights of citizens by issuing the writs. In many cases, it was interpreted by the judiciary as the Right of the citizens to approach the High Courts and Supreme Court and no authorities can prevent a person from approaching the Court without any lawful justification.
On the other hand, the framers of the Constitution made it very clear that these writs are most important to enforce the Fundamental Rights contained in Part III of the Constitution. If there would have no existence of Articles 32 and 226, the Fundamental Rights would have remained only in the pages of the Indian Constitution, 1950 and those would not have any practical application because there would have nobody who can protect and also enforce such Rights by issuing the writs to provide Constitutional remedies to the person whose Fundamental Right has been infringed by any acts or omissions of the State or other authorities.
Thus if any law passed even passed by the legislature violates Article 32 and Article 226 of Indian Constitution, the Supreme Court exercising the power of ‘Judicial Review’ can scrap those laws making it unconstitutional. On the other hand, the legislature must not make any Constitutional amendments under Article 368 of the Indian Constitution to amend the Articles 32 and 226 of Indian Constitution to curtail the rights of common people to approach the Court. If it happens, it will harm the basic structure of the Constitution and it will not have any effect. Thus the Article 32 and 226 both are an indispensable part of the Indian Constitution and democracy of the country. The custodians of the Constitution are always awake to protect the Fundamental Rights of citizens.
. 1983 AIR 1086, 1983 SCR (3) 508
. 1976 AIR 1207, 1976 SCR 172
- WRIT PETITION (CIVIL) NO 494 OF 2012
- AIR 1955 SC 233
- AIR 1961 SC
. (1998) 8 SCC 143
- 1965 AIR 491, 1964 SCR (4) 576
This Article is Authored by Souvik Roy Choudhury, 2nd Year BA.LL.B (Hons.) Student at SOA National Institute of Law.