#Quo Warranto Can Be Issued Against

[ausetkmt]

The next two years are likely to see a test of what may turn out to be the most legally consequential recommendation—other than the suggestion of criminal charges—made by the January 6 committee in its final report. Namely, the committee’s view that

“those who took an oath to protect and defend the Constitution and then, on January 6th, engaged in insurrection can appropriately be disqualified and barred from holding government office…pursuant to Section 3 of the Fourteenth Amendment.”

While the committee addressed congressional vehicles for enforcing that constitutional provision at the federal level, there are also existing provisions and processes to do so on a state-by-state basis. Those vehicles include states’ quo warranto laws. In this essay and our accompanying survey of those laws, we outline their applicability in all 50 states and four additional jurisdictions.

We come to this topic just over two years after a violent mob, alongside organized militia groups, stormed the Capitol building, the seat of American government. They disrupted the January 6 congressional certification of presidential electoral votes with the aim to overturn the 2020 presidential election. As a result, various institutions—from the Justice Department to Congress to civil society organizations—have been holding actors of all levels of culpability to account for the assault on our democracy. Over 900 individuals have been charged by the Justice Department in connection with the attack on the Capitol. Federal prosecutors have also secured historic, back-to-back seditious conspiracy convictions against leaders of the far-right Oath Keepers militia for helping foment the insurrection. And in December, the House January 6 select committee culminated their months-long investigation and series of public hearings by issuing several criminal referrals to the Justice Department against former President Donald Trump and some of his closest associates based on their involvement in different parts of the multi-prong effort to overturn the election.

But criminal prosecution is not the only means of January 6 accountability.

Section 3 of the Fourteenth Amendment can also serve that general purpose. Section 3 provides that no person shall hold any state or federal office “who[] having previously taken an oath…shall have engaged in insurrection or rebellion…or given aid or comfort to the enemies thereof.” In an initial detailed report published at the Project on Government Oversight, we examined the different avenues for modern-day enforcement of Section 3 with an eye toward holding accountable those who participated in the January 6 attack and in the events that precipitated it. As we discussed in that earlier analysis and an accompanying essay at Just Security, one of the main enforcement mechanisms for a Section 3 disqualification is a quo warranto lawsuit. (Quo warranto is Latin for “by what warrant.”) Through this type of lawsuit, an individual’s right to hold public office can be challenged.

Our purpose is to provide a comprehensive current survey of the nation’s quo warranto laws, and to build on the recent successful use of the doctrine. Despite that fact, the doctrine has been recently used to litigate against a public official who participated in the attack on the Capitol and resulted in his being removed from office. In that landmark ruling last fall, a New Mexico judge removed a state county commissioner from office under Section 3 for his participation in the January 6 attack. Since then, the House select committee in its final report has issued a recommendation that Section 3 disqualification actions be brought against other public officials who engaged in insurrection.

As a continuation of our previous analysis and the work of the House committee, we surveyed the quo warranto procedures in 55 different jurisdictions—the 50 states, the District of Columbia, Puerto Rico, Guam, the U.S. Virgin Islands, and nationally, including some limited instances of federal common law. We did so to map the potential for future uses of quo warranto lawsuits to bar public officials from office. Our analysis of these procedures demonstrates that quo warranto lawsuits can be used by a variety of stakeholders—from private parties such as individual citizens to public entities such as state attorneys general, county district attorneys, municipal or county governments, and even U.S. attorneys. What’s more, it shows that quo warranto lawsuits are an accountability tool that is not only widely accessible but also practically meaningful. Such actions hold the potential to disqualify sitting public officials who have violated their oath by engaging in insurrectionist activity. In that way, quo warranto lawsuits can serve as a powerful means of furthering legal accountability against some of the highest-ranking individuals who participated or aided in the assault on January 6.

Our analysis interprets the wide array of state and territorial laws that establish the procedural framework for quo warranto actions by categorizing them according to how they empower different parties, both in bringing actions and in managing them. In some jurisdictions, private parties can supply the government with information to serve as the basis of the government’s quo warranto complaint against a public official. These private parties are often referred to as “relators.” In Texas, for example, prosecuting attorneys may file a motion “at the request of an individual relator.” While such an action is not technically a private action, some jurisdictions also allow relators to manage a case pursuant to the government’s oversight. For instance, Missouri law empowers relators to control a case after obtaining leave from the prosecuting attorney.

In other jurisdictions, private parties can themselves file quo warranto lawsuits against public officials without governmental permission. Some jurisdictions, such as Connecticut, allow parties to do so in their own name. In others like North Carolina, however, the government must be the named party. In the latter scenario, the private party, not the government, manages the case; and, indeed, the government possesses no management authority. For example, should the prosecuting attorney decline to bring a quo warranto case in New Mexico, the relator is afforded full control of the suit despite the government being the named party. We identify both these types of quo warranto procedures as private actions, since both enable private parties to bring the suit.

Some jurisdictions have similarly codified which public authorities may initiate a quo warranto lawsuit. Unlike the regulations that empower private relators to issue broader complaints, many regions specify which authorities can litigate against particular officeholders. For example, in Arkansas, prosecuting attorneys may bring quo warranto suits against county officials, while the state’s attorney general handles cases against all other officers. Other jurisdictions such as Massachusetts and New York place the onus entirely on the attorney general, while others task other officials such as county or U.S. attorneys with bringing quo warranto suits.

Beyond empowering specific parties, quo warranto laws also impose other and highly varied procedures in these kinds of lawsuits. In New Jersey, for example, the attorney general carries the burden of proof. But in Hawaii, the respondent—that is, the public official whose conduct is in question—bears the burden of proof in lawsuits initiated by the attorney general. Other laws establish a duty upon public officials, usually either the local or state prosecutor, to bring a quo warranto action when, as in Arizona, for example, “they have reason to believe there is a cause.” California, Idaho, and Montana, to name a few, impose such a duty upon prosecutors.

Disqualification actions can be brought against public officials who have violated their oath of office by engaging in insurrection or by giving aid or comfort to insurrectionists. The House select committee recognized that in their final recommendations. Our comprehensive survey of quo warranto procedures is intended to serve as a guide to the various private and public stakeholders empowered by state and territorial law to file quo warranto lawsuits so they can continue the House committee’s work—holding public officials whom voters have entrusted to lead their government accountable for their wrongdoing.

[judgementstoday]

Explanation On The Types Of Jurisdiction Of Supreme Court

This article will explore the types of the jurisdiction of the Supreme Court of India. The Supreme Court of India is the highest in the country and can exercise original, appellate, and advisory jurisdiction. We will discuss the three types of jurisdiction in detail and highlight their importance. Additionally, we will take a look at the scope of their powers and the differences between them. By the end of this blog, you will better understand the various types of the Supreme Court of India jurisdiction and how each type is used. So, read on to find out more!

Introduction to the Supreme Court of India

The Supreme Court of India is the highest in the country, charged with upholding the rule of law. It is the apex court of India, taking on the most difficult Supreme Court cases and questions of law, often deciding matters of great public importance. The Supreme Court is the highest judicial authority of India, as it is the final court of appeal under the Constitution of India.

Overview of the types of the jurisdiction of the Supreme Court of India is the country’s highest court of law and the country's ultimate judicial authority. It is established under the Indian Constitution and is vested with both Original and Appellate Jurisdiction. The Supreme Court decisions scope can be divided into two broad categories – Original Jurisdiction and Appellate Jurisdiction.

Writ Jurisdiction: The Supreme Court of India has the power to issue writs for the enforcement of the Fundamental Rights of citizens and the enforcement of the other India legal news conferred by the Constitution of India. Under Article 32 of the Indian Constitution, the Supreme Court has the authority to issue five types of writs: Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo-Warranto. 

Advisory jurisdiction: Advisory jurisdiction is the jurisdiction of the Supreme Court of India, which enables the President of India to consult the Court on any legal question. The President is not bound by the opinion or advice of the Supreme Court, but it is considered to be binding on the Court. This jurisdiction is exercised under Article 143 of the Indian Constitution. According to this article, the President can refer any matter of public importance or any question of law to the Supreme Court.

Appellate Jurisdiction: The Supreme Court of India has a special jurisdiction of hearing appeals against the decisions of the High Courts and the other courts. As per the provisions laid down in Articles 132, 133, and 134 of the Constitution of India, the Supreme Court has the power of appellate jurisdiction over all civil and criminal matters.

In conclusion, the Supreme Court of India is the highest court of appeal for matters of jurisdiction involving the Government of India, individual states and union territories, and other jurisdictions of the country. The court has varying degrees of power, from advisory to appellate, depending on the Latest Supreme Court rulings nature and the Constitution's provisions.

[legalupanishad]

Writs under the Constitution of India: All you need to know

This article on 'Writs under the Indian Constitution: All you need to know' was written by Risha Sharma, an intern at Legal Upanishad.

Introduction

In this article, the writs as provided for under the Constitution of India have been discussed briefly. The article provides an overview of the five writs mentioned under Article 32 and Article 226 of the Constitution: the writs of certiorari, habeas corpus, mandamus, prohibition, and quo warranto. These writs pave way for the enforcement of rights and compel the authorities to fulfill their requisite duties. The purview and application of the aforementioned writs as developed and stipulated by the Courts have been briefly touched upon by placing reliance on certain case laws for an enhanced understanding of the same.

What is a Writ?

A writ is defined as “an order or mandatory process in writing issued in the name of the sovereign or of a court or judicial officer commanding the person to whom it is directed to perform or refrain from performing an act specified therein,” or “an order issued by a legal authority with administrative or judicial powers, typically a court.” It is a formal order by a legal authority possessing administrative or judicial powers. The High Courts and the Supreme Court are vested with writ jurisdiction under Articles 226 and 32 respectively. The five writs mentioned therein are certiorari, habeas corpus, mandamus, prohibition, and quo warranto.

Different types of writs under the Constitution of India:

1- Certiorari Defined as “to be certified”, the writ of certiorari aids the rescinding of a judgment by a lower court or tribunal. It can be invoked against judicial or quasi-judicial orders. The SC in Hari Vishnu Kamath v Syed Ahmed Ishaque delineated the writ’s application. The appellant and the respondents were nominated for election to the House of People in a Madhya Pradesh Constituency. The first respondent secured 301 votes more than the appellant, who filed an election petition to nullify the election, contending that such votes were to be rejected as the ballot papers failed to have mandatory distinguishing marks. The Election Commission dismissed the petition and so, the appellant approached the Nagpur HC under Articles 226 and 227 for the issuance of a writ of certiorari to quash the Tribunal’s order due to lack of jurisdiction. Dismissing the petition, the HC maintained that the Tribunal was within its jurisdiction while giving out the order. The appellant then approached the Supreme Court under Article 132(1). The major issue before the SC was whether the High Courts possessed jurisdiction to issue writs under A.226 against the Election Tribunal’s judgments. Relying on several authorities, the SC laid down the following principles: - The writ can be employed for correction of jurisdiction when a lower court or a tribunal oversteps its jurisdiction, proceeds without jurisdiction or fails to exercise it. - The writ can be issued to counter illegal proceedings of the lower court or tribunal exercising their jurisdiction, wherein the parties are not given an adequate opportunity to be heard, or when the principles of natural justice are disregarded. - The Court that issues such a writ exercises its supervisory jurisdiction, not appellate. - The writ can be utilized to correct an erroneous error of law. 2- Habeas Corpus Translating to “to produce the body,” this writ helps request a court for ordering the State to bring an individual who is supposedly illegally detained or imprisoned. It empowers the court to assess the legality of an individual’s detention by another person, institution, or authority. This operates in the light of Articles 19 and 21. The writ is inapplicable to: - lawful detention, - contempt of court or legislature proceedings, - detention by a competent court, - detention beyond the court’s jurisdiction. The SC succinctly described this writ in Kanu Sanyal v District Magistrate, Darjeeling. The petitioner was incarcerated in the District Jail, Darjeeling. Later, the petitioner was imprisoned in the Central Jail after the issuance of a warrant by the Special Magistrate. The petitioner argued that he was illegally detained at the District Jail and that the concerned Magistrate lacked the jurisdiction to try the offenses in question. Dismissing the petition, the Court observed that habeas corpus is ineffective where"… person is committed to jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction wholly illegal…” Thus, the writ of habeas corpus is a “prerogative writ and an extraordinary remedy,” and a “writ of right and not a writ of course”.

Writs under the Constitution 3- Mandamus Referring to “mandatory fulfillment of someone’s duty”, the writ of mandamus obligates an individual to perform duties entrusted to him when he fails to exercise powers. The fundamental concept is to fortify existing rights and to enforce duties established by the law. Being remedial, it serves to keep authorities in check to avoid violation of citizens' fundamental rights. Under this writ, the judiciary cannot consider making policy decisions. Election procedures do not fall under this. Only when there is a violation of rights by the government can the judiciary act on this writ. This writ is not applicable: - against a private individual or body, - to enforce departmental instruction that does not possess the statutory force, - when the duty is discretionary and not mandatory, - to enforce a contractual obligation, - against the President of India or the State Governors; and - against the Chief Justice of the High Court acting in a judicial capacity. 4- Prohibition A writ of prohibition is issued to a lower court or body to halt the proceedings being carried out in excess or lack of jurisdiction. This writ is available for ongoing proceedings, i.e., before the final order is passed. Referred to as a “stay order”, this writ is preventive and based on “prevention is better than cure”. The SC in the Hari Vishnu Case stated that the writs of certiorari and prohibition had the common objective of “…restraining of inferior courts from exceeding their jurisdiction, and they could be issued not merely to courts but to all authorities exercising judicial or quasi-judicial functions,” but the key difference was that “… they are issued at different stages of the proceedings. When an inferior court takes up for hearing a matter over which it has no jurisdiction, the person against whom the proceedings are taken can move the Superior Court for a writ of prohibition” effectively, terminating the proceedings, meanwhile, “if the Court hears that cause or matter and decides, the party aggrieved would have to move the Superior Court for a writ of certiorari…” thereby quashing the decision. 5- Quo Warranto Roughly translating to “by what authority or warrants”, this writ is issued when the judiciary seeks to regulate the exercise of executive power in the appointment of public officers per the applicable statutory provisions. This writ against a public officer requires them to demonstrate the statutory provision(s) from which they derive authority. It allows the court to inquire into the legality of the claim of a person to public office. As a result, it prevents the person from illegally assuming a public office. This writ can be invoked by any interested person. Once invoked, this writ grants the judiciary “a weapon to control the executive from making appointments to public office against law and to protect a citizen from being deprived of public office to which he has a right. These proceedings also tend to protect the public from usurpers of public office, who might be allowed to continue either with the connivance of the Executive or because of its apathy.” This writ is strictly limited to a substantive public office being wrongfully occupied.

Suggestions

Integrated to realize the right to constitutional remedies, the writs as mentioned under the Constitution have been time and again called for and utilized to uphold the fundamental rights of the citizens. The Constitution itself demarcates the significance of the separation of powers between the executive, legislature, and judiciary, and as a result, the judiciary must not intervene in the functioning of other organs. This boundary is overstepped sometimes by judicial overreach by admitting certain writs, which calls for a greater need for judicial restraint to maintain an equilibrium with the other organs of the state and to preserve its independence.

Conclusion

Article 32 of the Indian Constitution grants the power to issue writs to the Supreme Court and Article 226 to High Courts. These writs are orders issued by the Courts to a public authority that must perform an act. The scope and nature of these writs permit the smooth functioning of society by preventing or correcting errors made in the law by authorities, be they judicial or quasi-judicial authorities. These writs are significant for the enforcement of the fundamental rights of the citizens and for broadening the scope of judicial review, by taking into account the principles of natural justice.

List of References:

- JurisCentre, Writ of Mandamus, available at: https://juriscentre.com/2021/05/28/writ-of-mandamus/ (last visited: 10 October, 2022) - JurisCentre, The Writ of Prohibition, available at: https://juriscentre.com/2021/05/28/the-writ-of-prohibition/ (last visited: 10 October, 2022) - Merriam-Webster - Munmun Singh, “Judicial Overreach in India: The Current Scenario”, 4 (6) IJLMH 1329 - 1336 (2021). - SCC Online Blog, “Writ of habeas corpus is a festinum remedium”; All HC rejected issuance of writ at the behest of a husband to regain his wife as no prima facie case of unlawful detention is made out, available at: https://www.scconline.com/blog/post/2021/08/16/habeas-corpus-3/ (last visited: 10 October, 2022) - SCC Online Blog, Courts are duty bound to issue a writ of Mandamus for enforcement of a public duty: SC, available at: https://www.scconline.com/blog/post/2020/08/10/courts-are-duty-bound-to-issue-a-writ-of-mandamus-for-enforcement-of-a-public-duty-sc/ (last visited: 10 October, 2022) - SCC Online Blog, Jhar HC : A writ of certiorari can be issued only in exercise of supervisory jurisdiction which is different from appellate jurisdiction; HC reiterates, available at: https://www.scconline.com/blog/post/2021/01/05/jhar-hc-interference-under-arti-226-a-writ-of-certiorari-can-be-issued-only-in-exercise-of-supervisory-jurisdiction-which-is-different-from-appellate-jurisdiction-hc-reiterates/ (last visited: 10 October, 2022) - SCC Online Blog, Ker HC: No writ of mandamus can be issued to direct the legislature to enact any law; Court upholds validity of State Commission for SC/ST Act, available at: https://www.scconline.com/blog/post/2020/10/05/ker-hc-no-writ-of-mandamus-can-be-issued-to-direct-the-legislature-to-enact-any-law-court-upholds-validity-of-state-commission-for-sc-st-act/ (last visited: 10 October, 2022) Read the full article

[sonhianadhia]

ABS-CBN Struggles for a Franchise Renewal

Sonhia Nadhia

Philippines is recognized for having the most liberated press in Asia, where the media helps in maintaining the checks and balances of the government; thus, it is known as the “fourth estate” and the “watchdog” of the country. However, despite of being free, Philippines is ironically ranked as one of the most dangerous countries for journalists.

Recently, the issue of the ABS-CBN franchise renewal has alarmed not only individuals in the media industry, but also the supporters of the network. ABS-CBN broadcast network is one of the oldest and most influential media networks in the Philippines, which is owned by the Lopez family.

Last February 10, 2020, Solicitor General Jose Calida filed a quo warranto petition before the Supreme Court against ABS-CBN’s franchise claiming that the corporation is offering paid broadcasts without the government’s approval, and by allegedly allowing foreign ownership of the giant network. However, ABS-CBN stated that all their broadcast offerings, including KBO, have received the necessary government and regulatory approvals and are not prohibited by their franchise.

A ribbon with colors of red, green, and blue being posted in social media to show support for the network. 

ABS-CBN’s Answers to all of Calida’s Accusations:

ACCUSATION #1: Kapamilya Box Office (KBO) is illegal because ABS-CBN offered it as a pay-per-view product without the proper permits from the National Telecommunications Commission (NTC), therefore a violation of its franchise.

ANSWER: It was ABS-CBN Convergence that offered KBO as a value-added-service. Convergence, the comment said, "sought and obtained NTC approvals."

ACCUSATION #2: The NTC ordered ABS-CBN in 2019 to refrain from offering pay-per-view services.

ANSWER: The NTC actually "approved" its pay-per-view service in the said 2019 order, but imposed a condition that its service "shall be subject to such Conditional Access guidelines that the Commission or any other relevant government agency may hereafter issue."

ACCUSATION #3: Pay-per-view is in itself illegal because franchise holders are not allowed to derive income other than from its paid advertisements.

ANSWER: ABS-CBN cited Justice Secretary Menardo Guevarra's legal opinion issued to NTC upon request in 2018, saying that "we find it clear enough that broadcast companies can engage in Conditional Access (CA) or Conditional Access System (CAS) and, for the same reason, can offer TV pay-per-view services."

ABS-CBN quoted, “The Office of the Solicitor General’s filing of quo warranto case against ABS-CBN on alleged violations of its franchise appears to be an effort to shut down ABS-CBN to the serious prejudice of millions of Filipinos who rely on the network for news, entertainment and public service. ABS-CBN complies with all the pertinent laws governing its franchise and has secured all necessary government and regulatory approvals for its business operations.”

Supporters and employees of ABS-CBN rallying in front of the network’s main office in Quezon City on July 10, 2020. Photo by Miquel de Guzman, The Philippine Star.

Consequently, on May 5,2020, the National Telecommunications Commission (NTC) has issued a “cease and desist” order against ABS-CBN due to the expiration of its congressional franchise on May 4, 2020.  

A cease and desist letter puts a person or business on notice that they are engaging in illegal activities, and if they do not stop, they will pursue legal actions.

Thus, due to the cease and desist order, the giant network had to immediately close its 42 television stations across the country, including the main ABS-CBN network, ABS-CBN Sports and Action, ten digital broadcast channels, 18 FM stations, and five A.M stations.

This July 10, 2020, the House committee on legislative franchise denied the network for a fresh license to operate with a voting of 70-11. Therefore, we can say that ABS-CBN has already met its death with its objective to stand and fight for press freedom. Nevertheless, who knows what the future might bring.

LIST OF THE 11 LAWMAKERS WHO VOTED FOR ABS-CBN TO RETURN ON AIR

·       Bienvenido Abante Jr, Manila 6th District

·       Carlos Isagani Zarate, Bayan Muna party-list

·       Christopher De Venecia, Pangasinan 4th District

·       Edward Vera Perez Maceda, Manila 4th District

·       Gabriel Bordado Jr, Camarines Sur 3rd District

·       Jose "Ping-Ping" Tejada, North Cotabato 3rd District

·       Lianda Bolilia, Batangas 4th District

·       Mujiv Hataman, Basilan

·       Sol Aragones, Laguna 3rd District

·       Stella Luz Quimbo, Marikina 2nd District

·       Vilma Santos-Recto, Batangas 6th District

Sources:

https://www.google.com/amp/s/theaseanpost.com/article/abs-cbn-shutdown-controversy%3famp

https://www.google.com/amp/s/amp.rappler.com/newsbreak/iq/251464-explainer-legal-points-calida-quo-warranto-petition-vs-abs-cbn

https://www.google.com/amp/s/amp.rappler.com/nation/266169-closing-arguments-abs-cbn-franchise-hearing-july-9-2020

https://www.google.com/amp/s/amp.rappler.com/newsbreak/iq/252600-explainer-abs-cbn-defense-supreme-court-quo-warranto-case

https://en.m.wikipedia.org/wiki/ABS-CBN_franchise_renewal_controversy

https://www.cnnphilippines.com/news/2020/2/10/ABS-CBN-we-did-not-violate-law.html

https://news.abs-cbn.com/news/07/10/20/who-were-the-11-congressmen-who-voted-for-the-abs-cbn-franchise

[ledxlaw]

HOW TO FILE A WRIT PETITION IN INDIAN COURTS?

In Indian Constitution, fundamental rights are given to the citizens of the country. Fundamental rights are the most crucial for the development of the people of India. Part III of the Indian Constitution includes the fundamental rights of people like the right to speech, right to equality, right to freedom etc. Solely stating these rights in the constitution and giving these rights to the people is not enough. These rights should be protected also. For the protection of these fundamental rights, Article 32 and Article 226 of the Indian Constitution give remedies. Article 32 and Article 226 of the Indian Constitution give the right to approach the Supreme Court and High Court. This right can be practised by anyone whose rights are violated. There are many writs provided under the Indian Constitution which protect the fundamental rights of the citizens of the country. Many online law certification courses are available on the Writs provided under the Constitution of India which protects the rights of people. 

What is a Writ? 

Writ refers to an order which is issued by the authority. The writ is understood as a formal written order which is issued by the court having the authority to do so. 

A writ petition is an application which is to be filed before a court asking for the issue of the writ in a case where the fundamental rights of citizens are violated. 

Types of Writs - 

In Indian Constitution, Article 32 and Article 226 deal with the issue of writs. There are 5 types of writ provided under the Constitution which have different meanings and applications. These 5 types of the writ are: 

Habeas Corpus: This writ means ‘you may have the body of’. This writ is applied in those cases where the person is detained illegally. The court uses this writ and directs the person to court for checking the legality of his custody. This writ can be issued by the courts in the following circumstances: 

When a person is taken into custody but is not presented in court within 24 hours of his arrest. 

When a person is detained even when the person has not breached the law. 

When a person is arrested with a deceitful purpose. 

Mandamus: This refers to ‘we command’. It is a command which is given to a person who is working as a public servant and who has not fulfilled his duty. This command is given by the courts. This writ can be issued against a person, corporation, an inferior court or any government body for the same cause i.e. when they fail to perform their duties. 

Certiorari: The term certiorari refers to ‘certified to be informed.’ This writ is issued by the superior court to an inferior court for passing the pending case to a higher court or giving the judgment soon. In 1991, the apex court which is the supreme court ruled that this writ can be issued against authorities also if their judgment is violating the rights of the people. This writ can be issued in the following cases:

There should be a court that has the authority or right to act judicially. 

If the judgment of a lower court violates the law. 

If the judgement given by an inferior court contains some error. 

Prohibition: The Writ of prohibition means to hinder or to discontinue and it is popularly recognized as ‘Stay Order’. This writ is issued when a lower court or a body tries to disobey the limits or powers vested in it. The writ of prohibition is given by any High Court or Supreme Court to any lower court, or semi-legal body prohibiting the latter from continuing the procedures in a specific case, where it has no jurisdiction to try.  It cannot be imposed against administrative organisations, statutory authorities, or private people or enterprises. It is solely applicable to legal and semi-legal bodies. 

Quo Warranto: This term Quo warranto means ‘by what authority or by what warrant’. It is issued by the court for the purpose of knowing the legitimacy or under what power the person is holding an office. It helps to prevent the unlawful holding of office by any individual. This writ cannot be issued under the following situations: 

To remove any minister from his authority.

It cannot be issued against the chief minister for non-performance of his duties. 

In the case of a ministerial office or private office. 

How to File a Writ Petition?

For filing a writ petition in any of the courts, a proper procedure should be followed. Firstly, the party who needs to file this writ needs to approach an organisation with identity proof, residential proof and all the other necessary documents and proofs. Then the advocate will draft a petition which will include all the details and facts of the case about how the rights were violated. After this, the draft is sent to the court and the person gets a date for the hearing on which courts accept the petition and send the notice to the other party. Then a date is given on which both the parties should compulsorily be present in court. The judge hears both sides of the case and then passes a judgement. This procedure should be followed to file a writ petition. Various Online law certification courses are there by which experts give the knowledge about all these things and law aspirants could learn better. 

Conclusion -   Many rights are provided to the citizens under Indian Constitution but the most important rights are fundamental rights which are provided under Article 19 of the Indian Constitution like the right to equality, right to freedom, right to speech etc. These rights are so crucial for the people of India and as these rights are available so their violation is also possible. So to protect the fundamental rights of people writs are there in Article 32 and Article 226. There are 5 types of writs in our constitution which can be filed in the High Court or Supreme Court for the violation of the Fundamental Rights of the people. Various Online legal courses are being provided nowadays which help law students to understand the concept of writs and the process of how these writs are filed in the courts.

[spottingfakenews]

Fake News: A Documentation

During these days, finding factual news is hard because of the existence of fake news which can be found in any sites as long as you have internet access. Fake News is news that is not true and intentionally misinforms the readers. Sometimes fake news creates panic among the readers too. Stories are also made for different wrong purposes. Fake News or stories influence people’s views, push different political agendas, and sometimes confuse the readers that can often be a profitable business for people who publish articles online. Fake news can be spotted in different platforms, may it be political, medical, showbiz, academe, entertainment and sports. 

This blog will be use as a compilation of Philippine-based fake news which gave a huge impact to the country.

Politics

This is an article which circulated again last August 7, 2020 about DILG Secretary Eduardo Año statement about the investigation of tricycle back rides. It circulated the second time wherein it was not the DILG’s current policy. This fake news caused confusion to the citizens whether what guidelines to follow about back rides.

Multiple Facebook postings have been shared with an image attributed to the state-run Philippine News Agency (PNA) that displays a bogus remark from Philippine President Rodrigo Duterte. According to the image, Duterte stated that the government has finished delivering cash relief to those impacted by the new coronavirus outbreak. The graphic, however, has been doctored; it has been modified to incorporate the alleged Duterte quotation, and the PNA has disowned it. On April 6, 2020, the graphic was shared on Facebook.

The accusation has been making the rounds on social media, with one post containing an image of Robredo and the caption "Remember her promise." If none of the eight diretso wins the election, she will resign as vice president. Do you believe she will keep her word?” The assertion appears to be based on an article published on May 7, 2019 by The Adobo Chronicles. According to CrowdTangle, the story has been shared by 44 Facebook groups and pages, resulting in 6,945 total interactions from 1,546,053 combined followers. In a tweet on May 15, the Vice-President had already disputed the report.

Medical

The Bureau of Customs (BOC) searched three warehouses in Meycauayan City, Bulacan, allegedly collecting phony cigarettes, bags of raw materials for cigarette production, false Bureau of Internal Revenue tax stamps, shredded plastics, and obsolete cigarette-making machines, according to the story. The article was accompanied by a video titled "P500-M Fake Cigarettes Raided by BOC in Bulacan." The Department of Health has not issued any warnings about the coronavirus being transmitted through fake cigarettes or that it has reached the Philippines.

According to the Department of Health and reports from local government units in Pampanga, the first ever mutated Cov-2 illnesses were discovered in Sta. Rita town on Monday, January 4, 2021, and there are now three verified instances of the new Covid-19 variety. "The DOH stated one is still hospitalized to a certain hospital facility," according to the report.

The footage was shared on April 14 by the Facebook page RUDY Baldwin and the YouTube channel NivLogs TV. Claim Check, a Facebook monitoring program, identified these postings for verification.

“PLS SHARE THE GOOD NEWS,” the Facebook page said in the description of the post. ANTIVIRAL INJECTION FABUNAN APPROVED na (already).” In the meanwhile, the YouTube channel's description reads, "APPROVED NA NI PRES. DUTERTE, , LOCKDOWN ILILIFT NA (FAI authorized by President Duterte). The lockdown has been removed.)

Academe

These are the three top fake news happened in the academe but we will focus more about the issue about DepEd announcing Grade 13. 

The Department of Education, through Education Secretary Leonor Briones, has announced the addition of a Grade 13 course. Kyle Santelices made the allegation on Facebook on April 19, posting what seems to be a screenshot of a news item showing Briones. The snapshot includes the designations "live" and "breaking news," as well as the title "Department of Education announces Grade 13."

The Department of Education has not announced the existence of a Grade 13, and Briones has not said the phrase attributed to her.The watermark on the claimed screenshot of a news article reads "breakyournews.com." The website is a meme generator that allows users to change the headline, ticker, and picture in a news report template.

Sports

Fake news about the Philippine Sports did a great impact last 2019 because the Philippines hosted for the SEA Games 2019. The most trending fake news at that time was the Photo of Philippine flag used as tablecloth 'in SEA Games 2019' event. 

During the Southeast Asian (SEA) Games 2019, a photo of the Philippine flag being used as a tablecloth for catering services was allegedly shot. “But wait, there's more,” reads the description of the post, which is ascribed to journalist Ricky Velasco in the screenshots. This is for all the SEA Games 2019 mishaps. Athletes who are taking part in the competition are fed. But using our flag as a mantle for a tablecloth? It's worth noting that the flag even reaches the ground.”

The photographs were not taken during any of the SEA Games activities. According to Papina, they were taken in 2015 during a "undisclosed occasion." Papina informed Rappler in a Facebook message that the photo was taken from a November 2015 post by a friend. He claimed, "From what I gathered from my friend's post, it happened in 2015 at an unidentified location."

Entertainment/Showbiz

Fake news in showbiz can sometimes be intentional by bashers or people who wants to take down a certain personality. The most recent fake news in showbiz was the act of junk to the ABS-CBN’s franchise renewal. 

According to YouTube channel Showbiz Fanaticz, the Supreme Court (SC) has already thrown out ABS-franchise CBN's renewal. The channel uploaded a video on Wednesday, July 8, titled: “BREAKING NEWS: KORTE IBINASURA NA ang FRANCHISE Renewal ng ABS-CBN| LEAKED VOTE DOCUMENTS INILABAS!!  (Breaking news: ABS-franchise CBN's renewal has been rejected by the court.) Documents from the vote have been leaked!) ”

The renewal of legislative franchises is decided by Congress, not the Supreme Court, under Republic Act No. 7925, or the Public Telecommunications Policy Act. As of this writing, ABS-request CBN's for a temporary restraining order against the National Telecommunications Commission's (NTC) cease and desist order is still ongoing before the High Court. On Monday, July 13, the Supreme Court will begin discussion on the petition.The quo warranto suit brought by Solicitor General Jose Calida against ABS-CBN was also just dismissed by the High Court on June 23. Furthermore, Showbiz Fanaticz's video made no mention of the SC. The video merely mentioned a source from the Manila Times that purportedly included leaked records indicating congressmen's votes on the ABS-CBN franchise renewal issue.

In conclusion, in this world of technology wherein your fate depends on the tip of your fingers, we should be aware of all the things that happens in our surroundings and spotting fake news is one. We should be a critical thinker when finding information and gathering data most especially with important news. We should always fact check and thorough when reading articles online. Let us always think before we click!

[juudgeblog]

The Expanding Role Of Judiciary Through Public Interest Litigation

This article is written by Srishti Chawla, a 5th-year student at Amity Law School, Noida

Introduction

Ubi Jus, Ibi Idem Remedium is a Latin term which means that where there is a right, there is always a remedy. Legally a right means the standard of permitted action by law. The remedy for enforcement of Rights guaranteed under the Constitution of India is embedded in Article 32 and 226 of the Constitution. It confers power upon the Supreme Court and the High Courts to issue writs in the nature of Prohibition, Habeas Corpus, Mandamus, Certiorari and Quo Warranto. Any person whose right has been infringed can approach the Supreme Court under Article 32 or the High Courts under 226 for the enforcement of such infringed rights. One of the methods adopted for enforcement of such rights is through Public Interest Litigation which was adopted by the Judiciary in the Late 1980s whereby any public-spirited person acting bonafide can come forward to further a cause for a particular class of the society namely the weak, the deprived and the illiterate. Such actions must be public interest and must not be for any personal gains, private profits or political motivation. The judiciary has played an exemplary role in the expansion of Public Interest Litigation by relaxing the rule of locus standi and at the same time had cautioned against the abuse of such relaxation. The Courts through Public Interest Litigation has introduced a new dimension to our public law. It is an instrument that allows citizens to bring corrupts individuals to the public view and secure justice for the common man. With that being said there have also been a lot of petitions filed in private interest rather than the public interest. This constitutes a serious problem where a method adopted for addressing the rights of the poor and the deprived are used more for publicity or private purpose.                                                     

Public Interest Litigation Explained

Public Interest Litigation has its evolution from the U.S.A in the famous case of Gideon vs. Wain Wright(1963) where the Supreme Court of U.S.A acted on a letter of Gideon treating it as a petition and relaxed the procedural law thereby allowing the petitioner to be defended by the State Counsel. Therefore since 1876, Public Interest Litigation had been receiving judicial support as an adversarial system of litigation. The term Public Interest Litigation as per the Council for Public Interest Law is the name which is given to the efforts taken to provide legal representations to certain groups and interests which included the poor, environmentalists, consumers, racial-ethnic minorities and others which were previously unrepresented.

click above

The Supreme Court of India in the exercise of its writ jurisdiction under Article 32 had entertained a number of cases which complained about the infringement of the Fundamental Rights of individuals, the weak and the oppressed who were unable to take the initiative to defend their own rights. Public Interest Litigation or social litigation was one of the methods adopted by the Supreme Court of India to address the infringement of the rights conferred under Part III of the Constitution. Public Interest Litigation is a legal action intended in a court of law for the enforcement of public interest of the people having a monetary interest or some interest by which their legal rights or liabilities are affected. A Public Interest Litigation writ petition could be filed in the Supreme Court under article 32 only if a fundamental right has been infringed but under article 226, a writ petition can be filed in the High Court whether or not a Fundamental Right has been infringed.  

The term Public Interest Litigation was given a broader meaning in S.P. Gupta vs. Union of India(1981) , popularly known as the Judges Transfer Case where it was observed by Justice P.N. Bhagwati that “any member of the public having sufficient interest can maintain an action for judicial redress for public injury arising from breach of public duty or from violation of some provision of the constitution or the law and seek enforcement of such public duty and observance of such constitutional or legal provision”. Furthermore, the doctrine of locus standi was relaxed in the case of Mumbai Kamgar Sabha vs. Abdulbhai(1976). It was observed that such relaxation was an absolute essential for the maintenance of rule of law thereby furthering the cause of justice and accelerating the pace of realization of the constitutional perspective.

In Janata Dal vs. H.S. Chowdhury(1992) , it was observed that the strict rule of locus standi which was applicable to private litigation was relaxed and a broad rule was evolved which gave the right of locus standi to any member of the public acting bonafide and having sufficient interest in instituting an action for the redressal of public injury or public wrong. In Bandhua Mukti Morcha vs. Union of India(1983), it was observed that Public Interest Litigation is not in the nature of adversary litigation but is a challenge and an opportunity to the Government and its officers to make basic human rights meaningful to the deprived and vulnerable sections of the community and to assure the social and economic justice which is the basic motive of the Constitution.

The Court went on to observe that in the words of Art.32 (1), there was no limitation that the fundamental right infringed must belong to the person moving to the court. The Court further observed that the principle underlying public interest litigation was that where a person or a class of persons to whom a legal injury had been caused by the reason of violation of a Fundamental Right is unable to approach the Court for judicial redress on account of poverty or disability or socially or economically disadvantaged position, any member of the public acting pro bono can move the Court for relief under Article 32 and 226 so that the Fundamental Rights may become meaningful not only for the rich 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 misery and poverty and who are by reason of lack of awareness and resources unable to seek judicial relief.

Development and Expansion of Public Interest Litigation

The landmark innovation of Public Interest Litigation was an important contribution of Judicial Activism and the role of the judiciary had expanded considerably with the help of Public Interest Litigation. As observed by Justice Bhagwati, “it is the duty of the Court to innovate new methods and strategies to provide access to justice to large masses of people who are denied basic human rights.”Since then the courts have been flooded by PIL’S. In Hussainara Khatoon vs. the State of Bihar(1979), the Court declared that the accused’s right to speedy trials and free legal aid is contained as a right under article 21 of the Constitution of India. In D.K. Basu vs. State of West Bengal(1996), the Supreme Court issued detailed guidelines for arrest and detentions of persons and severely criticized the instances of Custodial Death and regarded it to be one of the Worst Crimes in a Civilised Society to be governed by the Rule of Law.

In Sheela Barse vs. Union of India(1988), the Court directed the State Government to set up necessary remand houses and observation homes where children accused of an offence could be accommodated pending investigation and trial. With the expansion of the locus standi rule, more cases relating to other social issues came to be filed in the Court. The emergence of Public Interest Litigation led to other landmark innovations and has become a potential weapon for enforcement of public duties resulting out of public injury. This also led to the evolution of the Epistolary jurisdiction of the Indian Supreme Court which is a unique feature of Indian Supreme Court and means that mere letters addressed to the Court can be treated as a writ petition in cases where there is a gross violation of fundamental rights.

Public Interest Litigation has played an exemplary role in the area of environmental protection as well. During the period from 1985 onwards, an era of litigation for environment protection commenced with the need for protecting and preserving the environment from degradation and destruction. The Court has observed that apart from economic development, protection of environment and ecosystems are important as well.

In the Oleum Gas Leak Case(1985), a PIL was filed for the closing of Shri Ram Fertilizers from where the oleum gas had leaked. The court here applied the doctrine of absolute liability and stated that any enterprise engaged in any sort of dangerous activity is absolutely liable to compensate all persons who were affected by such gas leak.

In the Taj Trapezium Case(1984), a PIL was filed for the protection of Taj Mahal from the pollution arising out of the industries present within the Taj Trapezium Zone. The Supreme Court ordered the closing down of all the industries functioning within the Taj Trapezium Zone and ordered that the industries functioning within the zone be relocated as per the Agra Master Plan. In the Kanpur Tanneries Case(1985), a PIL was filed regarding the pollution of the river Ganga by the discharge of effluents from tanneries. The Supreme Court ordered that the tanneries be closed down and held that such closing down may cause poverty, unemployment, etc. but the health and safety of the people mattered most. Public Interest Litigation has also played an important role in policymaking. There were numerous PIL’s filed in the Supreme Court whereby certain legislations were enacted for the welfare of the society.

In Vishakha vs. the State of Rajasthan(1997), a PIL was filed in the Supreme Court calling for the need for enacting a law to protect women from sexual harassment and recognition of their rights which are guaranteed to them under the Constitution of India. A three-Judge bench of the Court framed certain guidelines for the protection of women from sexual harassment and these came to be known as the Vishakha Guidelines which prompted the government to enact the Sexual Harassment at Workplace (Prevention, Prohibition & Redressal) Act, 2013.  In Delhi Domestic Working Women’s Forum vs. Union of India(1994), a PIL was filed to uncover the pathetic plight of domestic servants who were subjected to indecent sexual assault by seven army personnel. The Supreme Court has laid down suitable guidelines in this regard to provide amicable assistance to rape victims.

In Shreya Singhal vs Union of India(2015), a PIL was filed regarding the constitutional validity of section 66 A of the Information Technology Act, 2000. The court struck down section 66A of the Information Technology Act stating it to be in violation of article 19(1)(a) of the Constitution. In Lily Thomas vs. Union of India(2000), a PIL was filed regarding section 8(4) of the Representation of Peoples Act, 1951 contending that the said section was in contravention to article 14 of the Constitution. The Court held section 8(4) to be ultra vires to the Constitution and held that any MP, MLA who was convicted of a crime and punished with a term of two years would lose his seat in the house.

Public Interest Litigation makes sure that the rights of the people who are being infringed are restored back. It has also proved to be a strong and effective weapon for enabling the Court to discover several scams and corruption cases that were prevalent in public life and punishing those persons who were guilty of such practices. Not only public-spirited individuals but organizations too have filed numerous PIL’s in the Court requesting inquiry and punishment for those people who bypassed the laws and misused their official position in public life. Public Interest Litigation has made access to justice easier. It has helped the judiciary earn popularity as the saviour of democracy, protector of Rule of Law and became an efficient tool for social transformation. It has also ensured that the legislature and executive do not exercise excessive powers by keeping a check on its functioning thereby upholding the doctrine of Separation of Powers.

Drawbacks of Public Interest Litigation

Public Interest Litigation has played a major role in the justice system of the nation. Yet this has its own drawbacks. Nowadays there is a gross misuse of PIL’s in the country. In S.P. Gupta case, Justice Bhagwati had exercised a note of caution while expanding the rule of locus standi. He observed that the person who is approaching the court to seek a remedy must be acting bonafide and not for any personal gain or private motive or political motives. This made it clear that even though the rules of locus standi were made liberal yet there were chances that it could be misused by persons for their own vested interests. As more and more PIL’s concerning social ailments flooded the Supreme Court and the High Courts, doubts and concerns arose regarding the possibilities of misuse of PIL’s. Many political leaders who were caught in corruption cases have criticized this trend stating that judges deciding PIL’s have crossed the limits of judicial decorum to take over the administration which was beyond the scope of its jurisdiction. Also, the awarding of damages and compensations against the state by the courts were also criticized.

The Government in 1997 enacted the Public Interest Litigation Bill to put a restraint upon PIL. It proposed that any person approaching the Supreme Court or High Court by way of public interest litigation was to deposit Rs. 1 Lakh or Rs.50000 which was to be refunded if the verdict came in favour of the petitioner and will be confiscated if the petition was not allowed. The bill was criticized as it aimed at preventing citizens from resorting to PIL’s and allowing those guilty of financial and other excesses to go scot free. The bill also put a clog on the power of Judicial Review, which is an essential part of the Basic Structure of the Constitution. In Simranjit Singh Mann vs. Union of India(1992), a PIL was filed challenging the conviction and sentencing of the two assassins of General Vaidya on the ground that it violated articles 21, 22 and 14 of the Constitution. The question was whether a third party who a total stranger to the accused has any locus standi to challenge such conviction and sentence. The Court held that the petitioners had no locus standi to file petition being a total stranger to the prosecution and more than that they were not even authorised by the convicts.

In B.Singh vs. Union of India(2004), the petitioner on the basis of a representation of one Ramsarup, addressed to the President of India, published in a newspaper, against a person who was likely to be appointed as a judge of the High Court filed public interest litigation challenging his appointment. The petitioner neither stated that he had any personal knowledge of the allegations made against the respondent nor did he make an effort to check whether the allegations had any basis. The Court held that this was a clear and blatant abuse of PIL and dismissed the suit with the imposition of an exemplary cost of Rs. 10,000. The court further held that PIL’s which are filed with reckless allegations against judges and persons whose names were under consideration for judgeship should be sternly dealt with. Moreover, the petitioner was seeking publicity and was not interested in the welfare of the judicial system.

In Guruvayoor Devaswom Managing Committee vs. C.K. Rajan(2003) , in a letter addressed to one of the judges of the Kerala High Court, the respondent brought to the notice of the court several corrupt practices, maladministration and mismanagement prevailing in the Shree Krishna Temple at Guruvayoor, Kerala and requested him to do justice to the downtrodden people who visit this temple. This was treated as an original petition under article 226 and a District Judge was appointed to make a general inquiry and submit a report. Upon submission of the report, the High Court directed to take the management of the temple. An SLP was filed against this order whereby the Supreme Court ruled that PIL cannot be used for solving disputes of private nature as it was evolved to render justice to the poor, the depraved, the illiterate and the downtrodden who have either no access to justice or are denied justice. Therefore it cannot be used for removing corruptions in a temple.

In Krishna Swami vs. Union of India(1992), it has been held that petition by way of PIL cannot be filed by any person seeking review of an earlier decision of the court in which they were not parties. In Ahmedabad Women’s Action Group vs. Union of India(1997), the Supreme Court dismissed PIL petitions challenging certain provisions under various personal laws. The Court observed that the petitions involved the issues of State policies with which the court had no concern. In Vinod Kumar vs. the State of U.P(2017), a PIL petition filed by an advocate against the transfer of cases to other courts including his was dismissed. It was held that filing of the writ petition in his own name was not a part of the professional obligation of the advocate.

In Dattaraj Nathuji Thaware vs State of Maharashtra(2004), it was observed that a writ petitioner who comes to the court for relief must come not only with clean hands like any other writ petitioner but also with a clean heart, clean mind, and clean objective. In Sanjeev Bhatnagar vs. Union of India(2005), a PIL was filed in the Supreme Court demanding the deletion of the word “Sindh” from our national anthem. Dismissing this petition, the Court held that the term “Sindh” had cultural connotation and in no way referred to the territory of Sindh. Recently in 2016, a PIL was filed in the Supreme Court regarding the appointment of Justice Jagdish Singh Khehar as the Chief Justice of India. The contention was that the position is given to Justice Chelameshwar as he had been the only protester in the National Judicial Appointments Commission(NJAC) case and that Justice Khehar had ruled in the majority in order to seize the office of the Chief Justice. These contentions were rejected by the Court and it dismissed this petition. Nowadays PIL’s are more known as Private Interest Litigation, Publicity Interest Litigations and Political Interest Litigations because of their own vested interests rather for the good of the actual public.

Control on Frivolous and Vexatious Litigations

Public Interest Litigation is a weapon that is to be used with great care and prudence. The Courts have to be careful in entertaining a PIL which requires careful investigation into the bona fides of the petitioners, apart from separating genuine from frivolous petitions. Such abuse not only wasted the precious time of the courts but also created frustration in the minds of the genuine litigants. Also, the forum of PIL is not meant for serving a political purpose or solving political problems, where no legal wrong or legal injury to the petitioner or any identified class of people, is shown. The Courts have held that if PIL’s are not properly regulated, then it will become a way to take revenge and release enmity by unethical hands. A petition which is styled as PIL and contains nothing but a camouflage to foster personal disputes should be thrown out.

Effective measures have been taken to prevent such type of litigations. For example, the Bombay High Court in August 2016 had amended its rules on the filing of PIL’s by holding that the petitioner has to deposit a security deposit which shall be subject to the final or interim order of the Court. If the Court finds that the petition is frivolous, then the security deposit which had been deposited shall be forfeited to the petitioner and the same shall not be entertained or registered by the registry for that period of time as the Court deems fit. This was indeed a wonderful step taken by the Bombay High to force lawyers and litigants who tend to file “Publicity Interest Litigations” to think twice before they file one.

Conclusion

Public Interest Litigation is for that section of society who was not able to fight for their rights and protect their interests. Nowadays the same is being misused by the upper class of the society for their own needs. The Court has to be extremely cautious in such situations whereby it has to examine whether the petition is for public or private interest and take appropriate measures in case the same had been filed for private interest. In the words of Justice Kuldip Singh, a retired Judge of the Supreme Court, “PIL is a powerful weapon in the hands of the judiciary and is used as a means to see that the promises made to the people under the Constitution are fulfilled.” Therefore this sacred jurisdiction has to be invoked very carefully in favour of a vigilant litigant and not for sake of publicity or to serve private ends.

The post The Expanding Role Of Judiciary Through Public Interest Litigation appeared first on iPleaders.

The Expanding Role Of Judiciary Through Public Interest Litigation syndicated from https://namechangersmumbai.wordpress.com/

[popoygee-blog]

My First Ground Activism

06.05.2018 Photo with Kabataan Partylist Representative Sarah Elago.

I have been fighting various causes through Social Media since 2010. I have gone through the edges of online activism and I should say that most part of it was devoted in verbal clashes against the other side of the bench. Be that as it may, Online Activism has earned me a reputation as a whining-youth who can never be satisfied with the status quo. I have gain friends and lose some. I have earned respect and at some I reap-sow hatred. Funny as it may seem but most of those campaigns,those fights,brought victory. The battle to pass the RH Bill into Law, the battle against EDCA, the battle against the corrupt-Binays, these has given me validation that indeed online activism is significant in this society veering towards the advance state of discourse and democratic flow of information.

But Ground Activism is different,you get to know people on ground. You've got to see some personalities sharing with you the scorching heat of the sun,pollution metro manila offers,and above all the same convictions and lofty aspirations. Today, I did what I should've done many years ago, I stand up and look at the issues eye to eye. Today, I stand up for Democracy, I stand up for Judicial Independence,I stand up for the things I believe to be true and just. Thank you for these wonderful experience.It has been a fight worth dying for.

Photo with Former Akbayan Rep. Teddy Casiño.

Various groups gather to uphold Judicial Independence. Calling for the Supreme Court to junk the Quo Warranto Decision made last May 11, 2018.

Sobrang saya. ☺

[ericfruits]

Constitutional Crisis In Florida: No Go On Quo Warranto

The Florida Supreme Court denied relief in a matter brought by the League of Women Voters. 

This case is before the Court on the petition of the League of Women Voters of Florida (the League) for a writ of quo warranto. Because the issue presented is not ripe for consideration, we dismiss the petition.

The League asks this Court to issue a writ of quo warranto against Governor Rick Scott prohibiting him from “filling any judicial vacancies on Florida’s appellate courts that occur due to terms expiring in January 2019.” The League’s basis for filing the petition is Governor Scott’s December 2016 announcement of intent to appoint the replacements for three justices of this Court. However, use of the writ to address prospective conduct is not appropriate...

Although Governor Scott announced his intent to appoint the replacements for three justices of this Court, clearly no appointments have been made. To use quo warranto to review an action which is merely contemplated but not consummated, as in the present case, would require this Court to depart from the historical application of the writ. This we decline to do. Until some action is taken by the Governor, the matter the League seeks to have resolved is not ripe, and this Court lacks jurisdiction to determine whether quo warranto relief is warranted.

Based upon the foregoing, the petition is hereby dismissed.

Justice Lewis dissents

It is most unfortunate that the majority finds it necessary to summarily dismiss this common law action to protect our State from blatantly unconstitutional actions for reasons other than a proper analysis of the law and do so directly contrary to the application of quo warranto in this judicial appointment context in 2016 in Lerman v. Scott, No. SC16-783, 2016 WL 3127708 *1 (Fla. June 3, 2016), in which the entire Court either concurred or concurred in result. It is even more regrettable and distressing that future Floridians have lost the ability to protect themselves and society from clearly unconstitutional action. The Florida Constitution requires devoted protection and the Florida citizens deserve better.

Contrary to Florida law and the general common law, the majority has now announced that the challenged conduct must have already produced a constitutional crisis and calamitous result before illegal acts of government officials are subject to quo warranto review or relief. Florida law has generally recognized that quo warranto is available to prevent significant impacts on the operation of government, Whiley v. Scott, 79 So. 3d 702, 708 (Fla. 2011), but the majority now negates that common sense, reasonable, and logical analysis to require that that illegal and unconstitutional conduct which produces disarray must have already occurred to allow judicial action. While writs of quo warranto may be applied to acts of state officials that have already been committed, the writ is not foreclosed as an avenue of relief for threatened and imminent future actions of state officials, based on the clear Florida law...

Under the majority view, elected politicians can announce their intentions and plan to engage in all types of illegal and harmful conduct but no relief is available until the illegal and harmful act has already inflicted its damage. Magnificent trees cut, pristine waters fouled, and unthinkable harm inflicted upon our citizens, which may not be prevented when the actor plans and even announces his intentions. Today, we have a new test. The writ is only available when the illegal act is taken and harm is actually inflicted—at times even irreparable harm.

http://ift.tt/2ktZgTV

http://ift.tt/2ktZgTV

[phgq]

ABS-CBN should remain off-air sans TRO from SC: SolGen

#PHnews: ABS-CBN should remain off-air sans TRO from SC: SolGen

MANILA – Solicitor General Jose Calida on Thursday said ABS-CBN Corp. should remain off the air after the Supreme Court (SC) declared moot the quo warranto petition filed by his office against the network.

In a statement, Calida said his office is yet to receive a copy of the ruling and will consider its options once they receive the same.

"The OSG has not yet received a copy of the SC decision. Once a copy of the decision has been obtained, the OSG will study the possibility of filing a motion for reconsideration, if necessary, given the constitutional issue on foreign ownership raised in the OSG petition," it pointed out.

He, however, said ABS-CBN must remain shut off since the cease and desist order of the National Telecommunications Commission (NTC) remains valid because of an expired franchise.

"It must be noted that in its Cease and Desist Order (CDO) issued on May 5, 2020, the National Telecommunications Commission (NTC) directed ABS-CBN to stop operating its television and radio broadcasting stations nationwide absent a valid Congressional Franchise required by law,” he said.

The network, along with its other channels and radio stations, voluntarily went off the air on the evening of May 5.

He said the network can resume broadcast operations once the high court issues a temporary restraining order against the NTC's move.

On Tuesday, the SC dismissed the petition for quo warranto filed against ABS-CBN Corp. on the ground of mootness after it voted unanimously to dismiss the OSG's petition because the network's franchise of ABS-CBN Corp. has already expired.

The high court, however, did not touch the issues on the case of ABS-CBN Convergence.

Calida claimed that ABS-CBN has been broadcasting for a fee, which is beyond the scope of its legislative franchise.

The OSG has attached the documents from the Securities and Exchange Commission (SEC) would show that ABS-CBN Corp. has committed a violation that Philippine Depositary Receipts (PDRs) must be sold only to Filipinos.

It has stated that ABS-CBN Corp. shares were transferred to ABS Holdings, which later on issued financial securities in the form of PDRs, which were then issued to both Filipino and non-Filipino nationals.

In its quo warranto petition, the OSG bared that Singaporean firm Prudential Singapore Holdings Pte. Limited "is a deemed substantial holder of 15,656,570 PDRs" issued by ABS-CBN Holdings.

It added that Mercury Media Holdings Ltd. also purchased PDRs issued by ABS-CBN Corp. worth PHP2.3 billion.

Mercury Media Holdings Ltd. is an affiliate of the US-based Capital Group of Companies, one of the world’s largest investment management organizations.

Under the Constitution, media entities must be 100-percent owned by Filipinos and its PDRs must be sold only to Filipinos.

The OSG added that ABS-CBN Corp. allegedly "violated the terms of franchise by offering Pay Per View Channels via TV Plus", which is supposed to be used for free by the public.

TV Plus is being sold in the market by ABS-CBN for a fee. (PNA)

***

References:

* Philippine News Agency. "ABS-CBN should remain off-air sans TRO from SC: SolGen." Philippine News Agency. https://www.pna.gov.ph/articles/1107063 (accessed June 26, 2020 at 02:27AM UTC+14).

* Philippine News Agency. "ABS-CBN should remain off-air sans TRO from SC: SolGen." Archive Today. https://archive.ph/?run=1&url=https://www.pna.gov.ph/articles/1107063 (archived).

[musingsbyroy]

I prepared an analysis on the ABS-CBN problem, and am posting it here for the benefit of those who are interested - THE ABS-CBN PROBLEM By Juan Ponce Enrile The central figure of a contentious legal and political problem in our society today is ABS-CBN - the largest and, to me, the most powerful and influential media entity in the country. The ABS-CBN problem revolves principally around the validity and extension of its expiring congressional franchise. The problem threw Congress in a quandary and discord, and pushed the Government to file a quo warranto proceeding against ABS-CBN Corporation before the Supreme Court. It also aroused a cacophony of diverse opinions among businessmen, lawyers, and ordinary people in our general public. The problem of ABS-CBN actually started years ago. On March 30, 1999, a thinly capitalized corporation named Worldtech Holdings Corporation, was organized. The authorized capital stock of Worldtech Holdings then was only P1,000.00, divided into 1,000 common shares, and with a par value each of P1.00. The owners of 400 subscribed and issued shares of Worldtech Holdings were Lopez, Inc., 50%, and certain directors and officers of Lopez, Inc., 50%. All are admittedly Filipinos. The primary purpose of Worldtech Holdings was to invest, purchase and hold real and personal properties, shares of stock, bonds, debentures, notes, evidences of indebtedness, or other securities or obligations. On September 16, 1999, the name of Worldtech Holdings was changed to and became ABS-CBN Holdings Corporation. From March 30, 1999 until today, Worldtech Holdings, which is now ABS-CBN Holdings, never had any business of its own. It is more of a shell corporation created with no other business purpose of its own than as sole issuer of Philippine Deposit Receipts (PDRs), and as a receptacle and custodian of common shares of ABS-CBN Corporation transferred to it from Lopez, Inc. pursuant to a financial scheme devised by its Filipino owners. Clearly, the creation of ABS-CBN holdings was intended simply to circumvent and overcome the Filipino ownership requirement of the Constitution for mass media. These can be gleaned from its financial records in the Securities and Exchange Commission (SEC). These are what the financial records of ABS-CBN Holdings in the SEC disclosed: "On September 29, 1999, the Company offered 132,000,000 PDRs relating to 132,000,000 ABS-CBN shares. Each PDR was issued for a total consideration of P46.00, which consists of a deposit of P45.90 and a PDR option price of P0.10." "Each PDR grants the holder, upon the payment of the exercise price . . . the delivery of one ABS-CBN share or the sale of and delivery of the proceeds of such sale of one ABS-CBN share. The Company remains to be the registered owner of the ABS-CBN shares covered by the PDRs. The Company also retains the voting rights over the ABS-CBN shares." "Immediately prior to the closing of the PDR offering . . . Lopez, Inc. transferred 132,000,000 ABS-CBN shares to the Company in relation to which the PDRs were issued. For as long as the PDRs are not exercised, these shares underlying the PDRs are, and will continue, to be registered in the name of and owned by, and all rights pertaining to these shares, including voting rights, shall be exercised by the Company. The obligations of the Company to deliver the ABS-CBN shares on the exercise of the right contained in the PDRs are secured by the Pledge of Shares in favor of the Security Agent acting on behalf of each holder of a PDR over the ABS-CBN shares." "The Company has not conducted any business other than in connection with the issuance of Philippine Depositary Receipts (PDRs), the performance of obligation under the PDRs and the acquisition and holding of shares of ABS-CBN Corporation (ABS-CBN) in respect of PDRs issued." "Any cash dividend or other cash distribution distributed in respect of ABS-CBN shares received by the Company (or the Security Agent on its behalf) shall be applied towards the operating expenses then due of the Company (including but not limited to applicable taxes, fees, and maintenance costs charged by the Philippine Stock Exchange shown as 'Operating Expenses' in the statements of comprehensive income) for the current and preceding years. Any further amount equal to the Operating Expenses in the preceding year (the 'Operating Fund') shall be set aside to meet operating or other expenses for the succeeding years. Any amount in excess of the aggregate of the Operating Expense paid and the Operating Fund for such period (referred to as 'interest') shall be distributed to Holders pro-rata on the day after such cash dividends are received by the Company." The word "Company" in those quoted words refers to ABS-CBN Holdings and the word "Holders" in the immediately preceding paragraph refers to the holders of PDRs. From those disclosures and admissions of ABS-CBN Holdings in its financial records in the SEC, it is clear that it is nothing but an alter ego of Lopez, Inc. Its corporate existence was an expedient measure to skirt something that was probably prohibited by law. Its corporate veil could, therefore, be pierced. Also, from those disclosures, my question is: What was the consideration, if any, received by Lopez, Inc. when it transferred to ABS-CBN Holdings 132,000,000 ABS-CBN shares before the closing of the PDRs offering? Was it the 132,000,000 PDRs with an issue value each of P46.00, or, in monetary terms, P6,072,000,000.00, which is the result of multiplying 132,000,000 PDRs by P46.00? This was not clearly disclosed and clarified in the financial records of ABS-CBN Holdings in the SEC. Another question is: Was the transfer of those 132,000,000 ABS-CBN shares from Lopez, Inc. to ABS-CBN Holdings free from income taxation? At the end of September, 2019, the financial records of ABS-CBN Holdings in the SEC shows the "movements of PDRs and the underlying ABS-CBN shares as follows: Number Investment of Shares in ABS-CBN PDRs ________________________________________________________________ Balance at December 324,843,700 P15,099,383,017 P15,066,898,647 31, 2017 Conversion of PDRs (4,951,600) (120,577,465) (120,082,305) Exchanges of ABS-CBN share with PDRs - - - ___________________________________________________________________ Balance at December 319,892,100 14,978,805,552 14,946,816,342 31, 2018 Conversion of PDRs (10,998,400) (208,943,818) (207,843,978) Exchanges of ABS-CBN shares with PDRs - - - ________________________________________________________________ Balance at September 308,893,700 P14,769,861,734 P14,738,972,364 30, 2019 ________________________________________________________________ From the above figures, it can be gleaned that the original 132,000,000 PDRs on September 29, 1999, grew to 327,541,274 in 2017, to 324,930,790 in 2018, and to 320,412,442 at the end of September 2019, with probably a corresponding growth of their counterpart and matching ABS-CBN shares. It is not farfetched to think that some, if not many, of those huge number of PDRs floating around have fallen into the hands of foreigners who have no right whatsoever to have any economic interest in mass media business in the country. It is also obvious from the financial records of ABS-CBN Holdings in the SEC that the PDRs are "securitization" of the 132,000,000 ABS-CBN shares that Lopez, Inc. transferred to its alter ego, ABS-CBN Holdings, before the closing of the PDR offering. Those PDRs of ABS-CBN Holdings are clones or virtual replications of the 132,000,000 ABS-CBN shares it acquired from Lopez, Inc. The PDRs have all the earmarks or attributes of ownership: possession, enjoyment, and disposition. The holders of PDRs have possession of their PDRs; they enjoy the fruits or dividends accruing to those 132,000,000 ABS-CBN shares; and they can trigger the disposition of any of those 132,000,000 ABS-CBN shares through the exercise of the option attached to each PDR. The only right denied to them is the voting rights of those 132,000,000 ABS-CBN shares. A good question to ask is: Can Lopez, Inc. or ABS-CBN Holdings, or both, trigger on their sole discretion the sale of any of those 132,000,000 ABS-CBN shares without any holder of a PDR exercising the option attached to a PDR? I doubt it because the power to trigger the disposition of those 132,000,000 ABS-CBN shares was removed from Lopez, Inc. and ABS-CBN Holdings, the registered owner, and transferred to the holders of PDRs. I think the Solicitor General is correct in raising the issue before the Supreme Court. Article XVI, Section 11(1) provides that "The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or association, wholly owned and managed by such citizens." It is about time for the Supreme Court to clarify this issue once and for all for the benefit of the nation.

I prepared an analysis on the ABS-CBN problem, and am posting it here for the benefit of those who are interested – THE ABS-CBN PROBLEM By Juan Ponce Enrile The central figure of a contentious legal and political problem in our society today is ABS-CBN – the largest and, to me, the most powerful and influential media entity in the country. The ABS-CBN problem revolves principally around the validity and extension of its expiring congressional franchise. The problem threw Congress in a quandary and discord, and pushed the Government to file a quo warranto proceeding against ABS-CBN Corporation before the Supreme Court. It also aroused a cacophony of diverse opinions among businessmen, lawyers, and ordinary people in our general public. The problem of ABS-CBN actually started years ago. On March 30, 1999, a thinly capitalized corporation named Worldtech Holdings Corporation, was organized. The authorized capital stock of Worldtech Holdings then was only P1,000.00, divided into 1,000 common shares, and with a par value each of P1.00. The owners of 400 subscribed and issued shares of Worldtech Holdings were Lopez, Inc., 50%, and certain directors and officers of Lopez, Inc., 50%. All are admittedly Filipinos. The primary purpose of Worldtech Holdings was to invest, purchase and hold real and personal properties, shares of stock, bonds, debentures, notes, evidences of indebtedness, or other securities or obligations. On September 16, 1999, the name of Worldtech Holdings was changed to and became ABS-CBN Holdings Corporation. From March 30, 1999 until today, Worldtech Holdings, which is now ABS-CBN Holdings, never had any business of its own. It is more of a shell corporation created with no other business purpose of its own than as sole issuer of Philippine Deposit Receipts (PDRs), and as a receptacle and custodian of common shares of ABS-CBN Corporation transferred to it from Lopez, Inc. pursuant to a financial scheme devised by its Filipino owners. Clearly, the creation of ABS-CBN holdings was intended simply to circumvent and overcome the Filipino ownership requirement of the Constitution for mass media. These can be gleaned from its financial records in the Securities and Exchange Commission (SEC). These are what the financial records of ABS-CBN Holdings in the SEC disclosed: “On September 29, 1999, the Company offered 132,000,000 PDRs relating to 132,000,000 ABS-CBN shares. Each PDR was issued for a total consideration of P46.00, which consists of a deposit of P45.90 and a PDR option price of P0.10.” “Each PDR grants the holder, upon the payment of the exercise price . . . the delivery of one ABS-CBN share or the sale of and delivery of the proceeds of such sale of one ABS-CBN share. The Company remains to be the registered owner of the ABS-CBN shares covered by the PDRs. The Company also retains the voting rights over the ABS-CBN shares.” “Immediately prior to the closing of the PDR offering . . . Lopez, Inc. transferred 132,000,000 ABS-CBN shares to the Company in relation to which the PDRs were issued. For as long as the PDRs are not exercised, these shares underlying the PDRs are, and will continue, to be registered in the name of and owned by, and all rights pertaining to these shares, including voting rights, shall be exercised by the Company. The obligations of the Company to deliver the ABS-CBN shares on the exercise of the right contained in the PDRs are secured by the Pledge of Shares in favor of the Security Agent acting on behalf of each holder of a PDR over the ABS-CBN shares.” “The Company has not conducted any business other than in connection with the issuance of Philippine Depositary Receipts (PDRs), the performance of obligation under the PDRs and the acquisition and holding of shares of ABS-CBN Corporation (ABS-CBN) in respect of PDRs issued.” “Any cash dividend or other cash distribution distributed in respect of ABS-CBN shares received by the Company (or the Security Agent on its behalf) shall be applied towards the operating expenses then due of the Company (including but not limited to applicable taxes, fees, and maintenance costs charged by the Philippine Stock Exchange shown as ‘Operating Expenses’ in the statements of comprehensive income) for the current and preceding years. Any further amount equal to the Operating Expenses in the preceding year (the ‘Operating Fund’) shall be set aside to meet operating or other expenses for the succeeding years. Any amount in excess of the aggregate of the Operating Expense paid and the Operating Fund for such period (referred to as ‘interest’) shall be distributed to Holders pro-rata on the day after such cash dividends are received by the Company.” The word “Company” in those quoted words refers to ABS-CBN Holdings and the word “Holders” in the immediately preceding paragraph refers to the holders of PDRs. From those disclosures and admissions of ABS-CBN Holdings in its financial records in the SEC, it is clear that it is nothing but an alter ego of Lopez, Inc. Its corporate existence was an expedient measure to skirt something that was probably prohibited by law. Its corporate veil could, therefore, be pierced. Also, from those disclosures, my question is: What was the consideration, if any, received by Lopez, Inc. when it transferred to ABS-CBN Holdings 132,000,000 ABS-CBN shares before the closing of the PDRs offering? Was it the 132,000,000 PDRs with an issue value each of P46.00, or, in monetary terms, P6,072,000,000.00, which is the result of multiplying 132,000,000 PDRs by P46.00? This was not clearly disclosed and clarified in the financial records of ABS-CBN Holdings in the SEC. Another question is: Was the transfer of those 132,000,000 ABS-CBN shares from Lopez, Inc. to ABS-CBN Holdings free from income taxation? At the end of September, 2019, the financial records of ABS-CBN Holdings in the SEC shows the “movements of PDRs and the underlying ABS-CBN shares as follows: Number Investment of Shares in ABS-CBN PDRs ________________________________________________________________ Balance at December 324,843,700 P15,099,383,017 P15,066,898,647 31, 2017 Conversion of PDRs (4,951,600) (120,577,465) (120,082,305) Exchanges of ABS-CBN share with PDRs – – – ___________________________________________________________________ Balance at December 319,892,100 14,978,805,552 14,946,816,342 31, 2018 Conversion of PDRs (10,998,400) (208,943,818) (207,843,978) Exchanges of ABS-CBN shares with PDRs – – – ________________________________________________________________ Balance at September 308,893,700 P14,769,861,734 P14,738,972,364 30, 2019 ________________________________________________________________ From the above figures, it can be gleaned that the original 132,000,000 PDRs on September 29, 1999, grew to 327,541,274 in 2017, to 324,930,790 in 2018, and to 320,412,442 at the end of September 2019, with probably a corresponding growth of their counterpart and matching ABS-CBN shares. It is not farfetched to think that some, if not many, of those huge number of PDRs floating around have fallen into the hands of foreigners who have no right whatsoever to have any economic interest in mass media business in the country. It is also obvious from the financial records of ABS-CBN Holdings in the SEC that the PDRs are “securitization” of the 132,000,000 ABS-CBN shares that Lopez, Inc. transferred to its alter ego, ABS-CBN Holdings, before the closing of the PDR offering. Those PDRs of ABS-CBN Holdings are clones or virtual replications of the 132,000,000 ABS-CBN shares it acquired from Lopez, Inc. The PDRs have all the earmarks or attributes of ownership: possession, enjoyment, and disposition. The holders of PDRs have possession of their PDRs; they enjoy the fruits or dividends accruing to those 132,000,000 ABS-CBN shares; and they can trigger the disposition of any of those 132,000,000 ABS-CBN shares through the exercise of the option attached to each PDR. The only right denied to them is the voting rights of those 132,000,000 ABS-CBN shares. A good question to ask is: Can Lopez, Inc. or ABS-CBN Holdings, or both, trigger on their sole discretion the sale of any of those 132,000,000 ABS-CBN shares without any holder of a PDR exercising the option attached to a PDR? I doubt it because the power to trigger the disposition of those 132,000,000 ABS-CBN shares was removed from Lopez, Inc. and ABS-CBN Holdings, the registered owner, and transferred to the holders of PDRs. I think the Solicitor General is correct in raising the issue before the Supreme Court. Article XVI, Section 11(1) provides that “The ownership and management of mass media shall be limited to citizens of the Philippines, or to corporations, cooperatives or association, wholly owned and managed by such citizens.” It is about time for the Supreme Court to clarify this issue once and for all for the benefit of the nation.

https://m.facebook.com/JuanPonceEnrile/posts/10158391825213783

Sent from my iPad Air

[legalfirmindia]

Criminal Defense

ADVOCATES FOR CRIMINAL DEFENSE IN CHENNAI

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[ledxlaw]

Types of Writs In the Indian Constitution

Writs a word no one can be unfamiliar with, especially a law student. This word holds a lot of importance and power. Legal professionals in the field of civil law, criminal law, or any other legal field must come across these writs and cases related to them at least once in their whole career. It is necessary for law aspirants to know what they are, how many types of writs are there in the Indian constitution and when they are used, all these are a little difficult to grasp at once that’s why many online legal courses make sure to teach or mention writs in lectures once in a while. So, What are writs? A writ is a legal order to do or not do something issued by the court of law or in simple terms, the writ means an order, given by the authority. 

In the Indian, Constitution writs mean, “ Writs are the written order from the Supreme court or High Courts that commands constitutional remedies for the Indian constitution against any kind of violation of their fundamental rights.” This order can be given to any individual, organization or state, that has violated the fundamental rights of a citizen. The power to issue Writs is considered the most important tool which is given to the Courts by the Indian constitution. This makes them, very essential part of the Indian judiciary system.  

Writs in Indian constitution:

Article 32 (i.e, according to Article 32, an individual can move to the supreme court of India when their fundamental rights are being violated or destitute and the Supreme court has the power to issue directions and orders or writs for the enforcement of the Fundamental Rights) and Article 226( This article confers power to High Court to issue writs to any person or authority within their jurisdiction for the enforcement of the fundamental rights or any legal rights) of the Indian constitution, gives power to the Supreme Court and High Court of India to issue writs. Article 32 is a fundamental right ( Right to Constitutional Remedies) which makes it unrefutable and absolute.

About Writs Petition:

A writ petition can be filed by any individual, whose Fundamental rights have been violated or are being deprived of their rights by the state or an individual. This petition can be filed either in High Court or Supreme Court. There is a  complete procedure for filing this petition with required documents and requires a legal professional for the process of petition filling. Thus every legal writ petition requires a legal professional with complete knowledge and experience in this aspect, that’s why many law aspirants opt for online legal certification courses to learn about this process from top legal industry experts.

Types of Writs In Indian Constitution: 

The constitution of India provides five types of writs which can be issued by the court, they are as follows;

Habeas Corpus

Mandamus

Prohibition

Certiorari

Quo-Warranto

Habeas Corpus:

Writ Habeas Corpus is the translation of Latin words “To find the Body of” or “You(shall) have the body”. This kind of writ is issued by the court, to order an individual, an authority or a police department to produce a body or present physically the person who is illegally detained in front of the court. The writ Habeas Corpus is used in the enforcement of the fundamental right of liberty of an individual against detention. The petition of this type of writ can be filed in the Supreme court or High court by the public, relatives or friends of the person who is alleged, to be in illegal detention. But this writ is not applicable if the detention is lawful, and is for contempt of Court.

Mandamus:

Indian Constitution provides another writ jurisdiction “Mandamus” which in Latin means “We Command”. This writ is issued by the court to an authority to perform the public duty which they are bound to perform but refused or failed to do so. This writ can be issued to a public individual, public authority, public body, lower courts or government tribunals. This writ can only be passed when a public authority denies performing its duty when asked by the petitioner. But this writ can not be issued when the duty was optional, not mandatory or against the Chief Justice of India, or any private individual or organization.

Certiorari:

The meaning of the writ Certiorari is “to be certified” or “to be informed”. This writ is issued by the Higher court to the lower court against the order passed by them in cases, and also to direct them to pass the pending case to the higher court. This writ is passed rarely and issued only when the Higher court feels that the tribunal court or lower court has passed a judgement or taken a case which is beyond their power or jurisdiction. Before this writ is issued only to judicial courts and quasi-judicial courts. After 1991, this writ can be issued to both the judicial and administrative systems. This writ can be issued only after the judgement is passed.

Prohibition:

As the word suggests itself, the meaning of the writ of Prohibition is “to forbid”. The Higher court(such as the Supreme court and High Court) issues the writ of prohibition to the lower courts or quasi or tribunal judicial bodies when this court tries to cross their power or jurisdiction limit. The prohibition writ cannot be issued against any public or private individual, authorities or bodies. 

Quo-Warranto:

The term of writ Quo-Warranto means “by what warrant. This writ issued is issued, to an individual holding a public office or issued by the court to the public official asking them by which authority did they hold the public offices. This writ also reviews the action of administrative authorities who make appointments to the public offices. This writ is applicable to only public offices and not to a private individual or organization.

Conclusion:

These are the 5 writs i.e, Habeas Corpus, Mandamus, Prohibition, Certiorari, and Quo-Warranto of the Indian Constitution. The most widely issued writ is Mandamus, the other rest. These writs are said to be taken from British law in old times. For every citizen of India, it is necessary to know all these writs and situations and the requirements for filing them. Also, every law aspirant must be versed in these writs, as it will help them in their career. Many online legal learning platforms provide information about the writs of the Indian constitution through online law certification courses in India. The violation of Fundamental rights is a crime and these writs are protection given by the framers of the Indian Constitution to their country’s citizen's most basic rights.

[benrleeusa]

[Sam Bray] English or Mulvaney at the CFPB? Time for quo warranto!

Office of Management and Budget Director Mick Mulvaney. (Jabin Botsford/The Washington Post)

Who is the acting director of the Consumer Financial Protection Bureau? That might seem to be a straightforward question, along the lines of “Who was buried in Grant’s Tomb?” It is instead a matter of hot debate. This post is not about who the acting director is, but about how the question could be decided. Many people assume that we would have to wait until some regulatory action is taken (either by Leandra English or Mick Mulvaney), which could then be challenged on the basis of invalid appointment. Other commentators have suggested that if one claimant isn’t paid a salary, there could be a suit for the lost wages.

Enter the writ of quo warranto. This is an old prerogative writ that “came to be used as a means of determining which of two claimants was entitled to an office.” Newman v. United States ex rel. Frizzell, 238 U.S. 537, 544 (1915). What the writ of quo warranto does is allow immediate action on the question of who holds the office, without waiting for any regulatory moves.

The common law of quo warranto is modified by statute for the District of Columbia:

D.C. Code Ann. § 16-3501. Persons against whom issued; civil action. A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.

D.C. Code Ann. § 16-3502. Parties who may institute; ex rel. proceedings. The Attorney General of the United States or the United States attorney may institute a proceeding pursuant to this subchapter on his own motion or on the relation of a third person. The writ may not be issued on the relation of a third person except by leave of the court, to be applied for by the relator, by a petition duly verified setting forth the grounds of the application, or until the relator files a bond with sufficient surety, to be approved by the clerk of the court, in such penalty as the court prescribes, conditioned on the payment by him of all costs incurred in the prosecution of the writ if costs are not recovered from and paid by the defendant.

The bottom line: the question could be resolved through a quo warranto action brought by Attorney General Jeff Sessions or U.S. Attorney Jessie K. Liu. There is no need to wait, as some commentators have surmised, for one of the two claimants to take some official action that could be challenged in court.

A few other brief notes about quo warranto:

A recent case applying these provisions is Taitz v. Obama, 707 F. Supp. 2d 1 (D.D.C. 2010).

Federal Rule of Civil Procedure 81(a)(4) recognizes quo warranto.

The writ of quo warranto is “legal” not “equitable.” One implication is that there have occasionally been jury trials on factual questions in quo warranto actions (e.g., Newman v. United States ex rel. Frizzell, 238 U.S. 537 (1915)). Another implication is that there are cases saying that when statutory restrictions make the writ unavailable, a court can issue an injunction — because the plaintiff would have “no adequate remedy at law.” See Andrade v. Lauer, 729 F.2d 1475, 1498 (D.C. Cir. 1984) (“This court has held that equity will not be barred from issuing an injunction to restrain invalidly appointed officers if the alternative remedy of quo warranto is inadequate.”).

[nancyedimick]

English or Mulvaney at the CFPB? Time for quo warranto!

Office of Management and Budget Director Mick Mulvaney. (Jabin Botsford/The Washington Post)

Who is the acting director of the Consumer Financial Protection Bureau? That might seem to be a straightforward question, along the lines of “Who was buried in Grant’s Tomb?” It is instead a matter of hot debate. This post is not about who the acting director is, but about how the question could be decided. Many people assume that we would have to wait until some regulatory action is taken (either by Leandra English or Mick Mulvaney), which could then be challenged on the basis of invalid appointment. Other commentators have suggested that if one claimant isn’t paid a salary, there could be a suit for the lost wages.

Enter the writ of quo warranto. This is an old prerogative writ that “came to be used as a means of determining which of two claimants was entitled to an office.” Newman v. United States ex rel. Frizzell, 238 U.S. 537, 544 (1915). What the writ of quo warranto does is allow immediate action on the question of who holds the office, without waiting for any regulatory moves.

The common law of quo warranto is modified by statute for the District of Columbia:

D.C. Code Ann. § 16-3501. Persons against whom issued; civil action. A quo warranto may be issued from the United States District Court for the District of Columbia in the name of the United States against a person who within the District of Columbia usurps, intrudes into, or unlawfully holds or exercises, a franchise conferred by the United States or a public office of the United States, civil or military. The proceedings shall be deemed a civil action.

D.C. Code Ann. § 16-3502. Parties who may institute; ex rel. proceedings. The Attorney General of the United States or the United States attorney may institute a proceeding pursuant to this subchapter on his own motion or on the relation of a third person. The writ may not be issued on the relation of a third person except by leave of the court, to be applied for by the relator, by a petition duly verified setting forth the grounds of the application, or until the relator files a bond with sufficient surety, to be approved by the clerk of the court, in such penalty as the court prescribes, conditioned on the payment by him of all costs incurred in the prosecution of the writ if costs are not recovered from and paid by the defendant.

The bottom line: the question could be resolved through a quo warranto action brought by Attorney General Jeff Sessions or U.S. Attorney Jessie K. Liu. There is no need to wait, as some commentators have surmised, for one of the two claimants to take some official action that could be challenged in court.

A few other brief notes about quo warranto:

A recent case applying these provisions is Taitz v. Obama, 707 F. Supp. 2d 1 (D.D.C. 2010).

Federal Rule of Civil Procedure 81(a)(4) recognizes quo warranto.

The writ of quo warranto is “legal” not “equitable.” One implication is that there have occasionally been jury trials on factual questions in quo warranto actions (e.g., Newman v. United States ex rel. Frizzell, 238 U.S. 537 (1915)). Another implication is that there are cases saying that when statutory restrictions make the writ unavailable, a court can issue an injunction — because the plaintiff would have “no adequate remedy at law.” See Andrade v. Lauer, 729 F.2d 1475, 1498 (D.C. Cir. 1984) (“This court has held that equity will not be barred from issuing an injunction to restrain invalidly appointed officers if the alternative remedy of quo warranto is inadequate.”).

Originally Found On: http://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/11/25/english-or-mulvaney-at-the-cfpb-time-for-quo-warranto/

[juudgeblog]

Writs

This article is written by Mansi Jain, BBA LLB National Law University, Jodhpur

Article 32(2) provides for the writ jurisdiction of the Supreme Court in India. Similarly, writ jurisdiction for High Courts is provided as 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 III and for any other purpose.[i]

Against whom can a writ be issued?

It’s a duty of the state to not abridge a person from the fundamental rights provided to him by the Constitution, hence a writ can be enforced against the State (as defined under Article 12 of the Constitution). But some fundamental rights such as rights under Article 17, 21, 23 and 24 are also available against private individuals hence writs can be enforced against violation of such rights by private persons.

Who can approach Court under writ jurisdiction?

The general principle is that the locus standi to approach the Supreme Court or High Court for enforcement of rights belongs to the person whose fundamental rights has been infringed. In common law, by the way of Public Interest Litigation(PIL) the locus standi to approach the court has been relaxed and stretched to a public-spirited third party.

What are the different writs enshrined in the Constitution?

The Supreme Court and High Courts 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[ii] in part III of the Constitution. Hence, the five writs are,

Writs Origin Meaning 1. habeas corpus  Latin You may have the body 2. mandamus  Latin We command 3. prohibition  English To stop/ forbid 4. quo warranto  Latin By what authority 5. certiorari  Latin To be Certified

Habeas Corpus

This writ has been described as the writ of right which is grantable ex debito justitae. The writ of habeas corpus is used to secure the release of a person who has been detained unlawfully or without lawful justification. Value of the writ is an immediate determination of a person‘s right to freedom.

click above

When can detention be called unlawful?

Detention may be lawful if inter alia it is,

not in accordance with the law or

the procedure established by 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

Is made under legislation enacted exciting its limits.[iii]

Article 22 of the Constitution provides for the rights of a person under detention and Article 21 provides for the right to personal liberty.

This writ of Habeas Corpus may be prayed by the prisoner or the person detained himself or his relatives may also pray before the court on his behalf to question the validity of detention or curtailment of his personal liberty

Other than against the state, Habeas Corpus may also be issued against illegal custody or detention by the private person. This writ can also be evoked for custody of an infant, where the court may adjudicate and award the custody of infant proper person.[iv]

Mandamus

The writ of mandamus is issued to enforce the performance of public duties by authorities of all kinds. The court may command a public authority to perform duty belonging to the office of statutory nature. The object is to prevent the disorder from a failure of justice, where justice despite demanded has not been granted. Mandamus is a very wide remedy and which must be easily available to reach injustice wherever it is found technicalities should not come in the way of granting this relief.

In Common-law the courts do not only issue mandamus for the performance of a duty of public character but also has recognized promissory estoppel and legitimate expectations as the cause of action for evoking the mandamus jurisdiction.

To maintain a balance of power and to avoid abuse of power there are certain conditions in which this writ cannot be issued,

Mandamus cannot be issued against the government to perform non-statutory functions.

Mandamus cannot be issued against the government directing it to approve the rules made by the court regarding the salary et cetera of the staff.

Mandamus cannot be issued to direct the government on the matters in which the government has discretionary or optional power.

Mandamus cannot be issued for the rights of purely private nature.

Mandamus cannot be issued to compel it to pass an order in violation of statutory provisions.

Although the court cannot issue a writ of mandamus quashing the decision made by the state using its discretionary powers yet, the court can quash the order if the discretion has been abused or not properly exercise or if the decision is taken on purely political consideration without any material.

Prohibition

The writ of prohibition is also called as preventive writ. Prohibition is issuable before the proceedings are completed. It is issued to restrain a lower court from acting under an unconstitutional law. In the absence of very cogent and strong reason issuance of the writ of prohibition is improper. It was pointed out since, under CPC, the civil court has sufficient power to decide its own jurisdiction and the High Court erred in interfering by Prohibition and directed the civil court to decide preliminary issues as the maintainability of the suit and applicability/ estoppels.

The writ of prohibition is issued inter alia on the following grounds,

when the body concerned proceed to act without or excess of jurisdiction, or

fails to exercise its jurisdiction, or

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 tribunal are based on no evidence, or

it proceeds to act in violation of the principles of natural justice, or

it proceeds to act under a law which itself invalid, ultra vires or unconstitutional, or

it proceeds to act in contravention of fundamental rights[v]

Quo Warranto

This writ calls upon the holder of a public office to show to the court under what authority he is holding that office. Its views to restrain a person from acting in the public capacity which he is not entitled to.

The Court may oust a person from an office to which he is not entitled. It is issued against the usurper of the office and the appointing authority is not a party. The Court can thus control election or appointment to the office against the law and protect from being deprived of a public office in which he may be entitled.

The writ lies only in respect of a public office of a substantial character. The motive of appointing an officer in making the appointment in question is irrelevant in a Quo Warranto petition. This writ cannot be issued against the appointment of a council of ministers, chief ministers, and governors. neither can it question the authority of private institutions to hold an office of a private character.

Certiorari

The writ of certiorari is issued to quash the decision after the decision has already been taken by a lower Tribunal. It may be that in the proceeding before an inferior court the High Court may have issued both prohibitions to prohibit the body from proceeding and certiorari further to invalidate what it has already been done by it.

The jurisdiction to issue certiorari is a supervisory jurisdiction and the High Court exercising it is not entitled to act as an appellate court.

But it is issued against the act or proceedings of judicial or quasi-judicial body where it has not acted judicially. Since the courts are obliged to act in a certain manner the court can issue this writ even when the list is between private individuals.

As stated in the law lied down in Syed Yakoob v. K.S. Radhakrishnan Certiorari can be issued in following grounds,

when the body concerned proceed to act without or excess of jurisdiction, or

fails to exercise its jurisdiction, or

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 tribunal are based on no evidence, or

it proceeds to act in violation of the principles of natural justice, or

it proceeds to act under a law which itself invalid, ultra vires or unconstitutional, or

it proceeds to act in contravention of fundamental rights[vi]

[i] Article 226, The Constitution of India

[ii] Article 32, The Constitution of India

[iii] State in Bihar v. K.P. Verma, AIR 1965 SC 575

[iv] M.P. Jain, Indian Constitutional Law (7th Edition, 2014), LexisNexis, New Delhi.

[v] Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477

[vi] Syed Yakoob v. K.S. Radhakrishnan, AIR 1964 SC 477

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