Constitution Project on

ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

SUBMITTED TO:
MR.INDRANATH DEY

FACULTY OF CONSTITUTIONAL LAW

SUBMITTED BY:
PRASHANT KERKETTA

SEMESTER - III

BATCH - XIII

ROLL NO. 119

B.A. LL.B (HONS.)

HIDAYATULLAH NATIONAL LAW UNIVERSITY

RAIPUR, CHATTISGARH

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 ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

ACKNOWLEDGEMENTS

I feel highly elated to work on the topic ‘ARTICLE 32:RIGHT TO

CONSTITUTIONAL REMEDIES’ and would like to thank the faculty of Civil

Procedure Code for giving me such a topic for bringing out the best curiosity out of
me.

The practical realisation of this project has obligated the assistance of many persons.
I express my deepest regard and gratitude for Mr. Indranath Ddey Faculty,
Constitutional Law. Her consistent supervision, constant inspiration and valuable
guidance have been of immense help in understanding and carrying out the nuances
of the project report.

I would like to thank my family and friends without whose support and
encouragement, this project would not have been a reality.

I take this opportunity to also thank the University for providing extensive resources
through internet. I would be grateful to receive comments and suggestions to further
improve this project report.

PRASHANT KERKETTA
Semester IX
Batch XIII
Roll No: 119

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 ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

TABLE OF CONTENTS

Contents

LIST OF CASES REFFERED…………………...................…………………………4

INTRODUCTION……….................………………………………………………….5

ARTICLE 32 AND IT’S SCOPE….................……………………………………….6

MANDAMUS…………………………………..................…………………………....7

CERTIORARI……………………………………………..................……………….13

PROHIBITION……………………………………………………….................……14

WRITS OF PROHIBITION AND CERTIORARI……………………....................17

QUO WARRANTO………………………………………………………...................16

HABEAS CORPUS………………………………………………………....................17

CONCLUSION……………………………………………………................……..…21

BIBLIOGRAPHY……………………………………………………..................……22

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 ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

LIST OF CASES REFFERED

 State of Bombay v. Hospital Mazdoor Subba
 Juggilal Kamalapat v. The Collector of Bombay
 Shantabai v. Bombay
 Calcutta Gas Co. v. State of W.B.
 Rampal v. State of Raj.
 Jiwat Bai & Sons v. G.C. Batra.
 Prakaslt v. Principal, A.l.R.
 Kalyan Singh v. State of U.P.
 Guruswami v. State of Mysore
 Bengal Immunity Co. Ltd. vd. State of Bihar
 Choteylal v. State of U.P.
 Shankar v. Returning Officer
 State of Bombay v. United Motors.
 The Praga Toots Corporation v. C.V. immanuel
 State of Bombay v. United Motors
 Veerappa Pillaiv. Raman Rtimin Ltd..
 S.I. Syndicate v. Union of India
 Amrit Lal v. Colllector, C.E.C. Revenue
 The Stateman v. Fact finding Committee
 Ryots of Garabandho v. Zamindar of Parlakimed
 Hari Vishnu Kamath Vs. Ahmad Ishaque
 Sonu Sampat v. Jalgaon Borough Municipality
 Kanu Sanyal v. District Magistrate
 Barse v. State of Maharashtra
 Nilabati Behera v. State of Orissa
 Malkiat Singh v. State of U.P
 STO V. Shiv Ratan AIR
 UP Sales tax service assn. v. taxation bar assn

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 ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

INTRODUCTION
Rights without remedies are meaningless so founding fathers have inserted article 32 by which
an individual can get a remedy by infringement of fundamental right. Article 32 of
the Constitution gives power to the Supreme Court to issue writs in case of breach of
Fundamental rights of any citizen by the state. By such writs the Judiciary can control the
administrative actions and prevent any kind of arbitrary use of power and discretion.

There are 5 kinds of writs

 Mandamus

 Certiorari

 Prohibition

 Quo warranto

 Habeas corpus

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 ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

Article 32 in The Constitution Of India

32. 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 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.

SCOPE OF ARTICLE 32

Only fundamental rights can be enforced under article 32. Some decisions have pointed out that
since the remedy under article 32(1) is itself the enforcement of fundamental right, Supreme
Court is under duty to grant relief for violation of a substantive fundamental right. 1 Supreme
court has stated that where relief through High Court is available under article 226, the party
should first approach High Court.2 The Supreme Court is constituted as guarantor and protector3
of fundamental rights, and it cannot refuse to entertain applications seeking protection against
infringement of such rights.4 Article 32 has been described as the very soul and heart of Indian
Constitution . Jurisdiction conferred on article 32 is an important and integral part of the basic
structure of Constitution of India and no act of Parliament can abrogate it or take it away except
by way of impermissible erosion of fundamental principles of constitutional scheme. It provides
an inexpensive and expeditious remedy. In Ambedkar's memorable words: 'If I was asked to
name any particular Article in the Constitution as the most important - an Article without which

1
Kochunni v. State of Madras AIR 1959 SC 725
2
P.N.Kumar v. municipal corp. of Delhi 1987 4 SCC 609
3
Rashid Ahmed v. The Municipal Board, Kairana, AIR 1950 SC 124
4
Ramesh Thapar v. State Of Madras AIR 1950 SC 124

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 ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

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'.

LOCUS STANDI

Any person complaining of infraction of any fundamental right guaranteed by the constitution is
guaranteed to move to the Supreme Court but the rights that could be involved under article 32
must ordinarily be rights of person who complains infraction of such rights and approaches the
court for relief , as to the nature of rights that is stated to have been infringed.5

PUBLIC INTEREST LITIGATION

In Indian law, public interest litigation means litigation for the protection of the public interest. It
is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by
any other private party. It is not necessary, for the exercise of the court’s jurisdiction, that the
person who is the victim of the violation of his or her right should personally approach the court.
Public interest litigation is the power given to the public by courts through judicial activism.
However, the person filing the petition must prove to the satisfaction of the court that the petition
is being filed for a public interest and not just as a frivolous litigation by a busy body. The
development of PIL has largely modified the rule of locus standi. PIL may be transferred to
appropriate High Court.6 A letter in PIL should be addressed to the court not to an individual
judge.7 PIL cannot be entertained where stand taken was contrary to stand taken by those who
are affected by action.8

MANDAMUS

A writ of mandamus or mandamus (which means "we command" in Latin), or sometimes

mandate, is the name of one of the prerogative writs in the common law, and is "issued by a
superior court to compel a lower court or a government officer to perform mandatory or purely

5
Narinderjit Singh Sahni v. UOI 2002 2 SCC 708
6
Kasturi Lal Ralia Ram JAIN V. State of UP AIR 1965 SC 1039
7
Sachdev v. UOI 1991 1 SCC 605
8
Rameshwar Prasad v. UOI AIR 2006 SC 980

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 ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

ministerial duties correctly". Mandamus lies to enforce a public duty in the performance of
which the petitioner has a sufficient legal interest, but he must show that he has demanded
performance which has been refused.9 It is discretionary and will not be granted if there is an
alternative remedy equally beneficial, convenient and effective.10

Definition of Mandamus

Mandamus according to Black's law dictionary, Ninth Edition

"A writ issued by a court to compel performance of a particular act by lower court or a
governmental officer or body, to correct a prior action or failure to act."

The order of mandamus is of a most extensive remedial nature, and is in form, a command
issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal,
requiring him or them to do some particular thing therein specified which appertains to his or
their office and is in nature of a public duty. Mandamus is not a writ of right, it is not
consequently granted of course, but only at the discretion of the court to whom the application
for it is made; and this discretion is not exercised in favour of the applicant, unless some just and
useful purpose may be answered by the writ. A writ of mandamus or remedy is pre -eminently a
public law remedy and is not generally available against private wrongs. It is used for
enforcement of various rights of the public or to compel the public statutory authorities to
discharge their duties and to act within the bounds. It may be used to do justice when there is
wrongful exercise of power or a refusal to perform duties.11

Mandamus in Indian Law prior to the Constitution

Mandamus was introduced in India by the Letters Patent creating the Supreme Court in Calcutta
in 1773. The Supreme Courts in the Presidency towns were empowered to issue the writ. The
Supreme Court can also issue mandamus for the enforcement of fundamental rights.

9
R. v. Baker (1762) 3 Burr. 1265, 1267.
10
Syndicate v. Union of India. A.I.R. 1975 S.C. 460
11
Binny Limited vs. V. Sadasivan 2005 AIR (SC) 3202

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 ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

Interpretation of Public right and mandamus

Mandamus lies against authorities whose duty is to perform certain acts and they have failed to
do so. Under following circumstances mandamus can be issued :

(i) The applicant must have a legal right to the performance of a legal duty. 12 It will not
be issued where to do or not to do an act is left to the discretion of the authority. 13 It was
refused where the legal duty arose from an agreement which was in dispute.14 The duty to
be enforced by a writ mandamus could arise by a provision of the Constitution15 or of a
statute16 or of the common law.17

(ii) The legal duty must be of a public nature. In The Praga Tools Corporation v. C.V.
Imanual, A.l.R. 1969 S.C. 1306 : the Supreme Court stated that mandamus might under
certain circumstances lie against a private individual if it is established that he has
colluded with a public authority.

It will not issue against a private individual to enforce a private right such as a
contract.18Even though mandamus does not lie to enforce a contract inter partes, it will lie
where the petitioner's contractual right with a third party is interfered with by the State. 19

If the authority were under law obliged to exercise discretion, mandamus would lie to
exercise it in one way or the other. Mandamus can be issued to compel an income-tax
officer to carry out the instructions issued by income-tax appellate tribunal exercising its
appellate power20. Again it can be issued to a municipality to discharge its statutory duty.

Where there is no statutory provision, executive instructions fill in the gap and are
capable of conferring rights on the citizen imposing obligations on the authorities. In

12
Dr. Rai Shivendra Bahadur v, Governing Body of the Nalunda College, A.I.R. 1962 S.C. 1210.
13
Controller of Monghyr v. Keshav Prasad, A.I.R. 1962 S.C. 1694
14
Carlsbad Mineral Water Mfg. Co. v. H.M. Jagtiani, A.I.R. 1952 Cal. 315.
15
Chintaman Rao v. State of M.P., A.l.R. 1951 S.C. 118
16
State of Bombay v. Hospital Mazdoor Subba, A.l.R. I960 S.C. 610
17
Juggilal Kamalapat v. The Collector of Bombay, A.l.R. 1946 Bom. 280.
18
Shantabai v. Bombay, A.l.R. 1958 S.C. 532
19
Calcutta Gas Co. v. State of W.B., A.l.R. 1962 S.C. 1044
20
Rampal v. State of Raj. AIR 1981 SC 121

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 ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

appropriate cases the courts may even compel the performance of such a duty.21
Mandamus is not available where the order upon which the alleged right of the petitioner
is founded is itself ultra vires.22 Where provisions are merely directory, non-compliance
with them does not render an act invalid and hence no mandamus issues.

(iii) The right sought to be enforced must be subsisting on the date of the petition. If the
interest of the petitioner has been lawfully terminated before that date, he is not entitled
to the writ.23

(iv) As a general rule, mandamus is not issued in anticipation of injury. There are
exceptions to this rule. Anybody who is likely to be affected by the order of a public
officer is entitled to bring an application for mandamus if the officer acts in contravention
of his statutory duty.24 A person against whom an illegal or unconstitutional order is
made is entitled to apply to the court for redress even before such order is actually
enforced against him or even before something to his detriment is done in pursuance of
the order. For, the issue of such order constitutes an immediate encroachment on his
rights.25

Against whom Mandamus will not be issued

In India, it will not lie upon the President and the Governor of a State in their personal
capacities.26 However, the Constitution expressly provides that appropriate proceedings may be
brought against the Government of India and the Government of a State.27 No mandamus will lie
against an officer or member of parliament or an officer or member of the legislature of a State
In whom powers are vested by or under the Constitution for regulating procedure or the conduct

21
Jiwat Bai & Sons v. G.C. Batra. A.l.R. 1976 Delhi 310
22
Prakaslt v. Principal, A.l.R. 1965 M.P. 217
23
Kalyan Singh v. State of U.P., A.I.R. 1962 S.C. 1153
24
Guruswami v. State of Mysore, A.I.R. 1954 S.C. 592
25
Bengal Immunity Co. Ltd. vd. State of Bihar, A.I.R. 1955 S.C. 661
26
Article 361
27
Articles 300 and 361

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 ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

of business or for maintaining order in Parliament or the State legislature.28 Mandamus will not
be issued to a legislature to forbid it from passing legislation repugnant to the fundamental
rights.29 Article 329 of the Constitution restrains any law courts from entertaining electoral
matters such as the validity any law relating to the delimitation of constituencies or the allotment
of seats to such constituencies, made or purporting to beside under article 327 or article 328 and
provides that no election to either House of Parliament or to the House or either House of the
legislature of a State shall be questioned except by an election petition presented as provided by
Parliament. Election includes everything from the issue of the notification to the announcement
of the result. It is not therefore possible to obtain mandamus against officials conducting the
various stages of an election, ft was refused against a returning officer who rejected a nomination
paper.30 This ban however applies only in respect of elections to Parliament and State
legislatures.

Mandamus lies to secure the performance of a public duty. If the petitioner has sufficient legal
interest in the performance it will issue even if the body against which it is claimed is not a
statutory body. Thus it was issued against the Sanskrit Council; which was constituted by a
resolution of the state government to compel it to hold the examination and publish the results.31
However, it will not lie to secure performance by a company of a duty towards its employees
which is not of a public nature.32

Alternative Remedy: A Bar to Mandamus

Mandamus is not refused on the ground that there is an adequate alternate remedy where the
petitioner complains that his fundamental right is infringed.33 The courts are duty bound to
protect the fundamental rights and therefore mandamus is issued. It is only when mandamus is
issued "for any other purpose" that the existence of an alternate remedy bars its

28
Article 122 (2) and 212 (2)
29
Choteylal v. State of U.P., A.l.R. 1951 All 228
30
Shankar v. Returning Officer, A.I.R. 1952 Bom 277
31
State of Bombay v. United Motors. A.I.R 1953 S.C. 252
32
The Praga Toots Corporation v. C.V. immanuel, A.I.R. 1969 S.C 1306
33
State of Bombay v. United Motors, A.I.R. 1951 S.C. 252

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 ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

issuance.34Mandamus will not, however, be refused when ordinary civil proceedings or

administrative appeals or revision do not provide an equally effective and convenient remedy.

Demand and refusal

For the issue of mandamus against an administrative authority the affected individual must
demand justice and only on refusal he has right to approach the Court. In S.I. Syndicate v. Union
of India35, the Supreme Court has adopted the following statement of law in this regard. :

"As a general rule the orders would not be granted unless the party complained of has
known what it was he was required to do, so that he had the means of considering
whether or not he should comply, and it must be shown by evidence that there was a
distinct demand of that which the party seeking the mandamus desires to enforce, and
that the demand was met by a refusal."

Thus, a party seeking mandamus must show that the demand justice from the authority
concerned by performing his duty and that the demand was refused. In S.I.Syndicate the court
refused to grant mandamus as there was no such demand or refusal. Where a civil servant
approached the court for mandamus against wrongful denial of promotion, he was denied the
relief because of his failure to make representation to the government against injustice. 36 The
demand for justice is not a matter of form but a matter of substance and it is necessary that a
"proper and sufficient matter has to be made".37 The demand must be made to the proper
authority and not to an authority which is not in a position to perform its duty in manner
demanded. It is suggested that the court should not fossilize this rule into something rigid and
inflexible but keep it as flexible. Demand may also not be necessary "where it is obvious that the
respondent would not comply with it and therefore it would be but an ideal formality."

Conclusion

Hence the writ of mandamus is to protect the interest of the public from the powers given to
them to affect the rights and liabilities of the people. This writ makes sure that the power or the
34
Veerappa Pillaiv. Raman Rtimin Ltd.. A.I.R. 1952 S.C. 192
35
AIR 1975 SC 460
36
Amrit Lal v. Colllector, C.E.C. Revenue, A.I.R. 1975 S.C. 538
37
The Stateman v. Fact finding Committee, A.I.R. 1975 Cal. 14

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duties are not misused by the executive or administration and are duly fulfilled. It safeguards the
public from the misuse of authority by the administrative bodies.

Hence it forms one of basic tool in the hands of the common people against the administrative
bodies if they do not fulfil the duties which by statutes they are bound to perform.

CERTIORARI

Certiorari is a Latin word meaning "to be informed of, or to be made certain in regard to".
Literally, Certiorari means to be certified. The writ of certiorari is issued by the Supreme Court
to some inferior court or tribunal to transfer the matter to it or to some other superior authority
for proper consideration. It is a writ (order) of a higher court to a lower court to send all the
documents in a case to it so the higher court can review the lower court’s decision. Appellate
review of a case that is granted by the issuance of certiorari is sometimes called an appeal,
although such review is at the discretion of the appellate court. A party, the petitioner, files a
petition for certiorari with the appellate court after a judgment has been rendered against him in
the inferior court.

Certiorari may apply when the administrative or executive authority fails to observe their duty to
act fairly with respect to the administrative functions. The writ of Certiorari may also be issued
against a subordinate tribunal even if the decision impugned is pronounced. A leading case of
Ryots of Garabandho v. Zamindar of Parlakimedi38 , was the first decision on the writ of
Certiorari- "The ancient writ of certiorari in England is an original writ which may issue out of a
superior Court requiring that the record of the proceedings in some cause or matter pending
before an inferior Court should be transmitted into the superior Court to be there dealt with. The
writ is so named because, in its original Latin form, it required that the King should "be
certified" of the proceedings to be investigated, and the object is to secure by the exercise of the
authority of a superior Court, that the jurisdiction of the inferior tribunal should be properly
exercised. This writ does not issue to correct purely executive acts, but, on the other hand, its

38
AIR 1943 PC 164
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 ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

application is not narrowly limited to inferior "Courts" in the strictest sense. Broadly speaking, it
may be said that if the act done by the inferior body is a judicial act, as distinguished from being
a ministerial act, certiorari will lie. The remedy, in point of principle, is derived from the
superintending authority which the Sovereign's Superior Courts, and in particular the Court of
King's Bench, possess and exercise over inferior jurisdictions. This principle has been
transplanted to other parts of the King's dominions, and operates, within certain limits, in British
India."

in Hari Vishnu Kamath Vs. Ahmad Ishaque 1955-I S 1104 : ((s) AIR 1955 SC 233) and the
following four propositions were laid down :-

"(1) Certiorari will be issued for correcting errors of jurisdiction;

(2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its
undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be
heard, or violates the principles of natural justice;

(3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate
jurisdiction. One 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.

(4) An error in the decision or determination itself may also be amenable to a writ of certiorari if
it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear
ignorance or disregard of the provisions of law. In other words, it is a patent error which can
be corrected by certiorari but not a mere wrong decision."

Certiorari jurisdiction though available is not to be exercised as a matter of course. The High
Court would be justified in refusing the writ of certiorari if no failure of justice has been
occasioned. In exercising the certiorari jurisdiction the procedure ordinarily followed by the
High Court is to command the inferior court or tribunal to certify its record or proceedings to the
High Court for its inspection so as to enable the High Court to determine whether on the face of
the record the inferior court has committed any of the preceding errors occasioning failure of
justice.

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 ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

PROHIBITION

Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This writ
is issued when a lower court or a body tries to transgress the limits or powers vested in it. It is a
writ issued by a superior court to lower court or a tribunal forbidding it to perform an act outside
its jurisdiction. After the issue of this writ, proceedings in the lower court come to a stop.

A writ of prohibition is issued primarily to prevent an inferior court from exceeding its
jurisdiction, or acting contrary to the rule of natural justice, for example, to restrain a Judge from
hearing a case in which he is personally interested.

The term “inferior courts” comprehends special tribunals, commissions, magistrates and officers
who exercise judicial powers, affecting the property or rights of the citizen and act in a summary
way or in a new course different from the common law. It is well established that the writ lies
only against a body exercising public functions of a judicial or quasi- judicial character and
cannot in the nature of things be utilised to restrain legislative powers.

These Writs are issued as “alternative” or “peremptory.” An alternative Writ directs the recipient
to immediately act, or desist, and “Show Cause” why the directive should not be made
permanent. A peremptory Writ directs the recipient to immediately act, or desist, and “return”
the Writ, with certification of its compliance, within a certain time.

The writ can be issued only when the proceedings are pending in a court if the proceeding has
matured into decision, writ will not lie.

In Syed Yakoob v. K.S.Radhakrishnan39 The writ of prohibition or certiorari can be issued on the
following grounds:

 When the body concerned proceeds to act without, or in excess of jurisdiction, or

 fails to exercise its jurisdiction40 or

39
AIR 1964 SC 477
40
STO V. Shiv Ratan AIR 1966 SC 142

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 ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

 There is an error of law apparent on the face of the record in the impugned decision of the
body or
 the findings of fact reached by the inferior court are based on no evidence or
 it proceeds to act against principles of natural justice or
 it proceeds to act under a law which is itself invalid, ultra vires or unconstitutional or
 it proceeds to act in contravention of fundamental rights41

Writs of Prohibition and Certiorari

The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court,
prohibiting the latter to continue proceedings in a particular case, where it has no legal
jurisdiction of trial. While the writ of mandamus commands doing of particular thing, the writ of
prohibition is essentially addressed to a subordinate court commanding inactivity. Writ of
prohibition is, thus, not available against a public officer not vested with judicial or quasi-judicial
powers. The Supreme Court can issue this writ only where a fundamental right is affected.

The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the
order already passed by an inferior court. In other words, while the prohibition is available at the
earlier stage, certiorari is available on similar grounds at a later stage. It can also be said that the
writ of prohibition is available during the tendency of proceedings before a sub-ordinate court,
certiorari can be resorted to only after the order or decision has been announced. There are
several conditions necessary for the issue of writ of certiorari, which are as under:

(a) There should be court, tribunal or an officer having legal authority to determine the question
of deciding fundamental rights with a duty to act judicially.

(b) Such a court, tribunal or officer must have passed an order acting without jurisdiction or in
excess of the judicial authority vested by law in such court, tribunal or law. The order could also
be against the principle of natural justice or it could contain an error of judgment in appreciating

41
UP Sales tax service assn. v. taxation bar assn. 1995 5 SCC 716

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 ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

the facts of the case.

QUO WARRANTO

The word Quo-Warranto literally means "by what warrant?" It is a writ issued with a view to
restraining a person from acting in a public office to which he is not entitled. The writ of Quo-
warranto is used to prevent illegal assumption of any public office or usurpation of any public
office by anybody.

The meaning of the term Quo Warranto is ‘by what authority’. The writ of quo warranto may be
issued against a person holding a public office or governmental privilege. The issue of summon
is followed by legal proceedings, during which an individual’s right to hold an office or
governmental privilege is challenged.

The writ requires the concerned person to explain to the Court by what authority he holds the
office. If a person has usurped a public office, the Court may direct him not to carry out any
activities in the office or may announce the office to be vacant. The writ is issued by the Court
after reviewing the circumstances of the case. There are a few conditions which must be fulfilled
for the grant of the writ of quo warranto India:

The concerned office must be a government unit or public office which performs public duties.
Examples of such office members are advocate general, university officials, members of a
municipal board. The public office must have a real existence. It should be permanent and cannot
be terminated. A person against whom the writ of quo warranto is issued must have the real
possession of the public office. The writ shall be issued only when the public office is held by a
particular person in an illegal manner

In Sonu Sampat v. Jalgaon Borough Municipality42 , “If the appointment of an officer is illegal,
everyday 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.”

42
(1957) 59 BOMLR 1088

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 ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES

A writ of quo warranto is not a petition, but a notice of demand, issued by a demandant, to a
respondent claiming some delegated power, and filed with a court of competent jurisdiction, to
hold a hearing within 3 to 20 days, depending on the distance of the respondent to the court, to
present proof of his authority to execute his claimed powers. If the court finds the proof
insufficient, or if the court fails to hold the hearing, the respondent must cease to exercise the
power. If the power is to hold an office, he must vacate the office.

The writ is unlike a petition or motion to show cause, because the burden of proof is on the
respondent, not on the demandant.

HABEAS CORPUS

It is a Latin term which literally means ‘to have the body of’. It is basically an order of court to
person who has detained another to produce latter before the court, to check cause and legality of
detention. So this writ under article 32 is a powerful measure against arbitrary detention either by
private individuals or executive.

However Habeas Corpus under Article 32 can’t be issued if

a) detention is lawful

b) proceeding is for contempt of a legislation or court order and

c) detention is outside jurisdiction of court.43

The history of this powerful writ appears to be traced to Anglo-Saxon common law roots; it’s
precise mention occurring in the Magna Carta or The Great Charter of the Liberties of England
in 1215. The oblique reference states “…no free man shall be taken or imprisoned or disseised or
exiled or in any way destroyed except by the lawful judgment of their peers or by the law of the
land.” The right to invoke this writ lies with the person detained or another person on his behalf
to move to the court to object to the detainment. The person himself, or his representative, must
prove that the authority/court ordering the detainment has made a factual or legal error. Clearly,

43
http://indiaopines.com/a-d-m-jabalpur-shukla-emergency-1975-77/

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the writ of Habeas Corpus remains the most powerful process by which any citizen may question
the correctness of restraint on individual liberty. Article 21 of the Indian constitution guarantees
the right to life and liberty to each and every citizen of the nation. Right to move to the court to
enforce this article was suspended under Article 359 of the constitution when ‘internal’
emergency was imposed (1975-77). The logical question that followed whether the writ
of Habeas Corpus was enforceable in such a situation? The landmark Supreme Court case or
the Habeas Corpus case attempted to answer this question, and was the reason for the
44th Constitutional Amendment in 1978. This amendment, passed unanimously, ensure that
Article 21 cannot be suspended even during an Emergency.44

The writ of habeas corpus is issued to a detaining authority, ordering the detainer to produce the
detained person in the issuing court, along with the cause of his or her detention. If the detention
is found to be illegal, the court issues an order to set the person free. A remedy available to any
person detained or imprisoned, not to hear and determine the case upon the evidence, but to
immediately and in a summary way test the validity of the person's detention or imprisonment.

The Indian judiciary in a number of cases has effectively resorted to the writ of habeas corpus
mainly in order to secure release of a person from illegal detention. Personal liberty has always
been considered a cherished value in India & the writ of habeas corpus protects that personal
liberty in case of illegal arrest or detention. As personal liberty is so important, the judiciary has
dispensed with the traditional doctrine of locus standi. Hence if a detained person is not in a
position to file a petition, it can be moved on his behalf by any other person. The judiciary while
going one step further, has also dispensed with strict rules of pleadings. The increasing scope of
writ of habeas corpus may be explained with the help of following cases decided by the Indian
judiciary.

In Kanu Sanyal v. District Magistrate45, while enunciating the real scope of writ of habeas
corpus, the Supreme Court opined that while dealing with a petition for writ of habeas

44
http://indiaopines.com/a-d-m-jabalpur-shukla-emergency-1975-77/
45
AIR 1973 SC 2684

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corpus, the court may examine the legality of the detention without requiring the person detained
to be produced before it.

In Sheela Barse v. State of Maharashtra46, while relaxing the traditional doctrine of locus standi,
the apex court held that if the detained person is unable to pray for the writ of habeas corpus,
someone else may pray for such writ on his behalf.

In Nilabati Behera v. State of Orissa47, the Orissa police took away the son of the petitioner for
the purposes of interrogation & he could not be traced. During the pendency of the petition, his
dead body was found on railway track The petitioner was awarded compensation of Rs. 1, 50,
000.

In Malkiat Singh v. State of U.P 48, the son of a person was allegedly kept in illegal custody by
the police officers. It was established that the son was killed in an encounter with the police. The
court awarded Rs. 5,00,000 as compensation to the petitioner.

Conclusion: In this manner, writ of habeas corpus has been used effectively by the judiciary for
protecting personal liberty by securing the release of a person from illegal custody.

46
AIR 1983 SC 378
47
AIR 1993 SC 1960
48
AIR 1999 SC 1522

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CONCLUSION

Access to courts has been made much easier through the introduction of Public Interest
Litigation. Locus standi has been made flexible thereby making access to courts much easier.
Government would now be under close scrutiny as various remedies are provided under Article
32 to ensure that fundamental rights are not infringed. It is a part of the basic structure of our
Constitution. The sole object of the Article 32 of the Constitution of India is the enforcement of
the fundamental rights guaranteed under Part III of the Constitution of India and the purpose has
been fulfilled by courts and their decisions. Though mistakes have been committed by court in
interpreting this article (habeas corpus case) it has been corrected accordingly by constitutional
amendment. Hence, it can be said that the intention of Constitution in framing this articlemakers
has been achieved by courts through its decisions.

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BIBLIOGRAPHY/WEBLIOGRAPHY

 https://academy.gktoday.in
 https://www.importantindia.com/.../right-to-constitutional-remedies-indian-constitutio...
 https://indiankanoon.org
 https://www.lawnotes.in/Article_32_of_Constitution_of_India
 constitution.onelawstreet.com

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