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juudgeblog · 5 years

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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.

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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.

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legalfirmindia · 4 years

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WRIT OF QUO WARRANTO

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postolo · 6 years

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2018 SCC Vol. 6 July 14, 2018 Part 1

Constitution of India — Art. 14 — Invidious discrimination: Entitlement of former CMs of State of U.P. for allotment of government accommodation for their lifetime in terms of S. 4(3) of U.P. Ministers (Salaries, Allowances and Miscellaneous Provisions) Act, 1981 (as amended by U.P. Act 22 of 2016), violates doctrine of equality and is ultra vires the Constitution. Natural resources, public lands and public goods like government bungalows/official residence are public property and “Doctrine of Equality” which emerges from concepts of justice, fairness must guide State in distribution/allocation of same. Chief Minister, once he demits office is on a par with common citizen, though by virtue of office held, he/she may be entitled to security and other protocols. S. 4(3) of 1981 Act which creates a separate class of citizens for conferment of benefit by way of distribution of public property on basis of previous public office held by them, fails test of reasonable classification violating Art. 14 and is ultra vires the Constitution. Furthremore, U.P. Ex-Chief Ministers Residence Allotment Rules, 1997 were struck down by Supreme Court in Lok Prahari, (2016) 8 SCC 389 on ground that provision for accommodation for ex-CMs as made in the Rules was in direct conflict with S. 4 of 1981 Act. Insertion of S. 4(3), as substantive provision in statute, which sought to bring in same effect as 1997 Rules without curing defect as pointed out, is an invalid attempt to overreach judgment in Lok Prahari case. [Lok Prahari v. State of U.P., (2018) 6 SCC 1]

Constitution of India — Art. 226 — Maintainability of writ petition: In this case, second writ petition was filed after disposal of earlier one as withdrawn. Earlier petition was withdrawn only on account of pendency of appeal. Second writ petition challenging subsequent order passed in appeal, hence held, was maintainable. [Vinod v. District Selection Committee, (2018) 6 SCC 68]

Constitution of India — Art. 32 — Misuse of PIL — Casting aspersions on District Judiciary, High Court Judges, misrepresentation of facts, baseless allegations: In a case death of Special Judge conducting alleged Fake Encounter Death case (Sohrabuddin case), there was non-registration of FIR as inquest report and other materials indicated natural death. Discreet inquiry conducted by Commissioner, State Intelligence Department (SID) also concluding similarly. No complaint was lodged by any relative of said Special Judge in local police station about any suspicion regarding cause of death. Prayer for registration of FIR and court monitored investigation rejected. [Tehseen Poonawalla v. Union of India, (2018) 6 SCC 72]

Constitution of India — Arts. 226 and 32 — Scope of issuance of writ of quo warranto — Principles reiterated: As long as caste and income certificate is valid and in force, a writ of quo warranto cannot be issued on basis of assumptions, inferences and suspicions regarding fact of fulfilment of eligibility criteria. [Bharati Reddy v. State of Karnataka, (2018) 6 SCC 162]

Contract and Specific Relief — Performance of Contract — Time of Performance — Time of the Essence — Termination/Discharge/Compensation/Penalty for delayed performance: Government entered into power purchase agreement (PPA) with respondent contractor (successful bidder). Respondent got a term loan of Rs 267.37 crores and spent huge amounts to purchase 253 acres of land. Respondent completed project after a delay of only 16 days (claimed by respondent) disputed by appellant authorities. As per appellants 16 days’ delay was beyond extra time of 9 months permissible under PPA. Delay was due to resistance faced by project team like physical attacks at allotted site during land procurement. Said circumstance of delay though not force majeure, are unavoidable circumstances. In case of delay, Arts. 2.5 and 2.6 of agreement provide for penalty. By interim order, High Court direction for encashment of bank guarantee had been stayed subject to condition of restitution depending on outcome of case. Penalty of stated amount directed to be paid. Termination of contract, not proper. [M.P. Power Management Co. Ltd. v. Renew Clean Energy (P) Ltd., (2018) 6 SCC 157]

Criminal Procedure Code, 1973 — Ss. 340 and 195(1)(b)(i) — Perjury: As case of deliberate falsehood, not made out, initiation of prosecution for perjury in such case, not justified. Proceedings initiated under S. 340 CrPC r/w S. 195(1)(b)(i) CrPC, closed. [Chintamani Malviya v. High Court of M.P., (2018) 6 SCC 151]

Electricity Act, 2003 — Ss. 84(1) & (2) and Ss. 77, 85(2), (3), (5) & (6), 86(1)(f), 86, 112 and 113 and Statement of Objects and Reasons — State Electricity Commission: It is not mandatory that Chairman of State Commission should be a Judge but it is mandatory that there should be at least one person of law as a Member of the Commission, which requires a person, who is, or has been holding a judicial office or is a person possessing professional qualifications with substantial experience in the practice of law, who has the requisite qualifications to have been appointed as a Judge of the High Court or a District Judge. Consequential directions issued, but to apply prospectively. [State of Gujarat v. Utility Users’ Welfare Assn., (2018) 6 SCC 21]

Income Tax — Income: Amount received by assessee acting as a broker of Bank in trust, to be paid to certain parties on behalf of Bank, not income in the hands of assessee and not taxable. [CIT v. T. Jayachandran, (2018) 6 SCC 189]

Income Tax — Non-Residents/Offshore transactions — Permanent establishment (PE) in India — Relevance of — Arm’s length pricing i.e. where a non-resident compensates a Permanent Establishment (PE) at arm’s length price — Effect of: In this case, following the ruling in E-Funds IT Solution Inc., (2018) 13 SCC 294, held, once arm’s length price procedure has been followed, notice for the reassessment based only on the allegation that the appellant(s) has permanent establishment in India, cannot be sustained. [Honda Motor Co. Ltd. v. CIT, (2018) 6 SCC 70]

Industrial Disputes Act, 1947 — S. 9-A r/w Sch. IV Cl. 8 — Notice of change in any material terms of service to employee — Principles of Natural Justice — Compliance: Temporary decision to enhance age of superannuation of all Central Public Sector employees from 58 yrs to 60 yrs vide order dt. 19-11-1998 with a view to cut down losses, revoked vide order dt. 17-7-2002 and age of superannuation at 58 yrs restored without granting opportunity of hearing to employees, said order dt. 17-7-2002 was not sustainable. [Paradeep Phosphates Ltd. v. State Of Orissa, (2018) 6 SCC 195]

Labour Law — Workman: Employees working in canteen managed by a another party/contractor, providing canteen services to employees of establishment concerned, are entitled to be treated as employees of appellant with all attendant and monetary benefits on a par with regular employees. [Chennai Port Trust v. Industrial Employees Canteen Workers Welfare Assn., (2018) 6 SCC 202]

Transfer of Property Act, 1882 — Ss. 54, 7 and 8 — Sale of remaindermen’s interest during lifetime of holders of life estate: On partition between two brothers, certain properties including property in question coming to share of one I. On subsequent partition executed insofar as branch of I was concerned, the properties were equally divided among four sons of I. Having given ¼th share to each son, right of enjoyment of properties was retained by I and his wife M till their lifetime. In 1975, two sons of I i.e. K and S transferred their undivided share in property in question by executing registered sale deeds in favour of appellant herein. I and M died in 1975 and 1984 respectively. On basis of above sale deeds executed by K and S, appellant (in 1985) filed a civil suit seeking declaration that he was entitled to undivided half-share in property in question. Though K did not have any son, S had four sons, who were not made parties to above suit. Appellant later filed another suit seeking injunction against defendants named therein. In that suit, the four sons of S were added as parties. Trial court decreed former suit holding appellant to be entitled to one half-share in suit property and accordingly passed a preliminary decree in that behalf. However, it declining to grant any relief of permanent injunction against defendants, but, first appellate court held that since the four sons of S were not parties to suit for declaration and partition, insofar as branch of S was concerned, sale deed in favour of appellant would be valid only in respect of share of S. Thus, first appellate court held that appellant would be entitled to share of S in his branch (i.e. 1/4 × 1/6 = 1/24) and share of K. Resultantly, share of appellant was computed as 5/24. View taken by first appellate court was confirmed by High Court in second appeals. After going through the entirety of matter and relevant record, the Supreme Court held that assessment made by first appellate court and High Court, insofar as merits of matter was concerned, was proper and hence, no interference was called for. [A. Dharmalingam v. V. Lalithambal, (2018) 6 SCC 65]

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legalupanishad · 2 years

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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

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ledxlaw · 2 years

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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.

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loyallogic · 5 years

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Right to Constitutional Remedies

This article is written by Akash R. Goswami of faculty of law, Aligarh Muslim University. In this article, he has discussed the constitutional remedies and right to approach the Supreme Court provided by the Constitution of India, and the concept of Public Interest Litigation.

“Don’t interfere with anything in the Constitution. That must be maintained, for it is the only safeguard of our liberties.”

– Abraham Lincoln

Introduction

Rights make people powerful, although it is not necessary that all citizens have equal resources and wealth one thing is for sure that they have it in terms of equality, all the countrymen inherently by birth, have their fundamental rights.

But to protect their rights people must have an alternative to enforce them. Article 32 works in that sense. With great power comes with great responsibilities, people use these rights as a weapon of harassment and PIL become the Industry of vested interest. Despite that, no one can be allowed to infringe on the rights of others. To ensure the safety of his/her rights people must be aware of the remedies provided in our constitution. Let us talk about in particular.

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Article 32

In day to day life, people do some acts which result in the violation of someone else’s rights. They may not do so deliberately but their acts may result in the violation of rights. Some rights if contravene, people ask for compensation or damages like in contracts & torts. But if some rights especially the fundamental rights are violated then people seek to constitutional remedies.

“Constitutional remedies” is envisaged in our Indian Constitution under article 32 in Part III. Every citizen of India is guaranteed five fundamental rights, in totality it’s six but if any of the five fundamental rights are violated then the sixth fundamental right ensures people and protects other fundamental rights from being violated. concerning that, if any fundamental right is infringed, sixth fundamental right .ie. “Right to Constitutional Remedies” provides that people can enforce or claim these rights in the Hon’ble Supreme court.

Image Source: Pixabay

Remedies for enforcement of the rights conferred by Article 32

This article contains four clauses:

People have the right to move the Court by appropriate proceedings for the enforcement of their rights granted by part III of the Indian Constitution. In other words one can move to enforce his/her right to the apex court in way of proper proceedings is assured.

Apex Court shall have the power to Produce orders, directions, injunctions, and writs, including writs in the nature of habeas corpus, mandamus, quo warranto, prohibition and certiorari whichever may be suitable, for the enforcement of any of the rights conferred In part III.

Parliament can empower any other court to issue directions, does not include Supreme Court & High court. M.V Plyee rightly claims the first three clauses of article 32, together make fundamental rights under the constitution real and forming the Crowing part of the entire chapter.

The right to move to the Supreme Court shall not be suspended except provided by the constitution like in case of emergency. In other words, the President of India may under article 358 make separate proclamation by which Article 32 remains suspended even the person’s right is violated. This is because individual liberty is not more important than the interest of states.

Right to constitutional remedies works on the Doctrine “Ubi Jus Ibi Remedium” which means when there is right there is a remedy. As the people of India guaranteed many rights so no one can violate these rights, then there must be some remedies to protect them.

In case Ram Singh vs Delhi [1], the Supreme Court of India observed that it is the duty of the supreme court to see the right, intended to be fundamental must be kept fundamentally.

A mere threat to infringement of fundamental rights is enough to justify the issue of the writ in case of Simranjit vs Union Of India[2].

Article 226

Power to issue the writ is not only vested in the hands of the Supreme Court of India, but also in the hands of every High Court of India. Article 226 empowers the High Court to issue any person or authority and state institution, including the government call for directions, orders or writs. Writs in the nature of habeas corpus, mandamus, prohibition, certiorari, quo warranto or any of them.

Article 226 has four clauses

Notwithstanding anything in Article 32, every High Court shall have the power throughout the territory in which High Court exercises its jurisdiction issue writs, orders and directions for the enforcement of right conferred in part III and for any other purpose.

Power assured by clause (1) to issue directions,orders or writs by High Court within the territory exercising its jurisdiction in relation to the territory in which the reason of action, wholly or partially, arises for the exercise of such power, notwithstanding that the bench of such Government or authority or the residence of such person is not within those territories.

Where a writ petition has been filed against the respondent party an interim order by way of injunction or stay has been passed against respondent without-

Providing to such parties, copies of the petition and all documents in support thereof.

Giving such a party an opportunity to be heard.

If such respondent party moves an application for removing the interim order and gives a copy of such application to the petitioner, the Court is required to decide such application within two weeks from the date on which such application is filed or on the date on which the copy of such application is provided to another side whichever is later.

The power empowered to the High Court by this article shall not be in derogation of the powers entitled on the Supreme court by clause (2) of Article 32.

Writ petition only praying for refund of money against the State is not maintainable observed in the case Suganmal vs State Of Madhya Pradesh[3].

It is established that the remedy provided in Article 226 of the Constitution of India is a discretionary solution which means on its own will, and the High Court has always its discretion to refuse or to grant such grievances in certain circumstances even though a legal right might have been infringed.

Article 227

This article States that every High Court shall have superintendence over all Courts and Tribunal within the territory having the jurisdiction except the court established by the armed forces.

High Court can, under Article 227

Call for returns from such courts.

draft and issue general to maintain rules and regulations for smoothing the practice and proceedings of such courts.

Prescribe the mode in which books, documents, entries, and accounts be kept by the officers.

Settle salaries and remuneration allowed to the sheriff and clerks of such Court.

Difference between Article 32 & Article 226

Article 32

Article 226

Article 32 entitled the Supreme court to issue directions, orders, and writs in the nature of habeas corpus, mandamus, prohibition, certiorari, quo warranto.

Whereas, article 226 gives power to every High Court to issue directions, orders, and writs in the nature of habeas corpus, mandamus, prohibition, certiorari, quo warranto, and for any other purpose like an administrative tribunal.

Article 32 can be suspended during the time of emergency by the President of India (except article 21 & 22).

On the contrary, Article 226 can not be suspended even during times of emergency.

Article 32 is itself a Fundamental Right. An aggrieved party can approach the Supreme Court for redressal for the enforcement of a right, being it is a fundamental right.

On the other hand, Article 226 is not a right as that of article 32.

Being the guarantor of Fundamental Rights, the Supreme Court can not refuse to issue Writs.

But the High Court has the Discretionary power while issuing the Writs.

Supreme Court has the right to issue the Writ All over the Territory of India.

In comparison, the High Court can issue the Writs within the territory of India in which it exercises its jurisdiction.

Writs

Writs are the formal written document bearing the name of the court, or other legal authority to do some act, abstain or refrain from doing something. These writs have been borrowed from England, where the history of writs had a long development and counted for more number of technicalities.

Under Article 32 & 226 of the Indian Constitution supreme court and the high courts have the power to issue Writs respectively. In India, first writs were issued by the Supreme Court at Calcutta later by the supreme court of Bombay & madras and since 1861 & 1937 by high courts and Supreme Court of India respectively.

There are five types of writs which are as follows.

Habeas corpus

The term habeas corpus is derived from the Latin term which means “You must have the body”. In the legal context, it stands for habeas corpus Ad subjiciendum means writ for securing liberty. By the help of this writ Court direct the person or any authority and state institution whosoever detained/wrongfully confines another person, to produce the body of the prisoner before the court so as to decide by the court the validity, jurisdiction, and justification for such detention. The principle aim of this writ is to ensure judicial review of unlawful detention on liberty or freedom of an accused. And also enables an immediate claim of the right of a person as to his freedom.

Article 22 of the Indian Constitution provides that, if the police or any authority arrested the person is required to be produced before a magistrate within 24 specified hours of his arrest (excluding the journey hours) and miss out to do so would entitle the arrested person to be released.

This writ can not be granted where a person has been committed taken by police under an order from a competent court then its Prima facie (at first sight) the order does not appear to be without justification, jurisdiction or wholly illegal, hence writ of habeas corpus would not be work.

It is granted not only against state but also against the individual, where a person holds the wrongful detention of another person, in this case, it is the duty of the police to make necessary efforts and make sure that the detention of the person got released, but the police can not put under pressure to do the impossible.

In the case of the National Emergency imposed this Writ can not be issued and people can not seek the assistance of the court for illegal detention observed by the Supreme Court in Case A.D.M Jabalpur vs. Shivkant shukla[4]. Five Judges constitutional bench gave this controversial judgment with a ratio of 4 out 5.

Quo Warranto

This means what is your authority? This writ is used to Control the judicially Executive actions in the matter of appointment to public office under relevant provisions. This writ also helps in to protects citizens from the holder of a public office which he has no Right and calls upon the holder to public office to the Court on what Authority he is holding the office is a question. If he is not eligible for the office then the court directs the person to vacate the office and declares the office to be vacant.

This writ helps to maintain control over Executive from making appointments in public office against law and also protects the public from being deprived of public office to which the public has a right.

Quo Warranto also helps to prevent illegal usurpation of public office by an individual. To issue this writ there must be some conditions to be satisfied by the court that the office is in question must be public,created by the constitution or law or by statutory provisions and the person who is holding the office is not qualified to hold the office and the person has to show on what Authority he is holding the office. In the case of Jamalpur Arya samaj vs. Dr D ram[5], Patna High Court said that writ of Quo Warranto can not be issued against private association only public offices will be lying under this writ scope.

Mandamus

Derived from the Latin term meaning “We command”. It is issued by the Court to an authority directing to perform a public duty which is imposed on it by law. In other words, when a body omits to do Some act which it’s bound to do, it can be commanded to do the same.

Mandamus writs help to confines the limit of the body and exercise its Jurisdiction within the scope vested on it. To issue this writ there must be some conditions that are required to be fulfilled that the petitioner must have the legal right to the performance of the legal duty, the legal duty must be of public nature. The right sought to be enforced must be subsisting on the date of the petition and as a general rule mandamus is not issued in anticipation of injury.

Mandamus can not be invoked against the President & Governor of the state in his personal capacities, moreover no mandamus can lie against an officer or member of parliament or an officer or member of State legislature in whom power is vested by the Constitution for Regulating procedure and conduct of the business for maintaining Order and conduct in parliament as well as state legislatures.

Certiorari

In the literal sense, it means “to be informed” or “To be Certified”. It is issued by the apex/higher Court to the lower Court or to the Tribunal either to pass-on a case pending with the later to itself or to Squash the order of the later in a case. It is issued when there is an excess of jurisdiction or lack of jurisdiction or there is an error of law.

The writ of Certiorari is preventive as well as curative in nature and could be issued only against the judicial or quasi-judicial body and not against the administrative body. After 1991, the Supreme Court ordered that this writ can be issued against the Administrative body affecting the rights of individuals. But a writ of certiorari cannot be issued to produce a call for records or paper And proceeding of an Act or Ordinance and for Quashing such Act and Ordinance.

Prohibition

Stand for “order inaction” and issued by the Higher Court to the Lower Court or Tribunal Directing the judge or party to cease the litigation because the inferior court does not have jurisdiction to hear and decide before it. This writ is an extraordinary remedy, rarely used. Same as the writ of certiorari, this writ can be issued against the Judicial & Quasi-judicial body.

The fundamental distinction between Certiorari & Prohibition that they are issued at different stages of proceedings. When a subordinate court takes up a matter for a hearing over which it has neither jurisdiction nor it has legal power to decide the case the person against whom injunction/action is taken can proceed to the Higher Court for the affair of writ of prohibition on which order would be issued for refraining the subordinate court from continuing the proceedings and hearings .

On the other hand, if the court takes the matter and gives the decision which it’s not legally bound to do, the party would need to move to a higher court to quash the order.

Public Interest Litigation

Meaning

PIL stands for “PUBLIC INTEREST LITIGATION” Which simply means for the protection of public interest. PIL is a legal remedy initiated in a court of law for the enforcement of public interest or general interest in which masses have a peculiar interest by which their legal rights affected. In PIL it is not necessary that the aggrieved party itself approach the court anyone can introduce PIL even the Court itself or by any other private party. It is also not mandatory for the exercise of the jurisdiction of the Court, the victim approached the court personally. PIL is the power given to the general public by the Court through Judicial Activism, however, it is to be satisfied to the Court that the petition filed is for public protection, and not on the basis of lack of legal merit.

Concept of PIL

The concept of public interest litigation was initially planted in India by Krishna Iyer J., in 1976 in Mumbai Kamgar Sabha vs. Abdul Thai case[6], Moreover Indian PIL is the improved version of PIL of USA. Basically, public interest law provides legal representation to underprivileged groups and masses.

During the time of Emergency (1975-1977) the country witnessed the colonial nature of the Indian legal system, state repression and governmental lawlessness have been done on a wide scale, there is complete deprivation of civil and political rights. Many innocent people, including political opponents and journalists, were sent to jail, this will provide better circumstances and for the judges of the Apex Court to disregard the hindrance of the Anglo-Saxon procedure and give access to justice to the poor.

Before the 1980s, only the affected parties had the Locus Standi to file the case and continue the procedure and a non-affected person having no locus standi will not do so. However, all these scenarios gradually changed during the post-emergency period and Supreme Court tackles the problem of access to justice by radical changes and modification has been done in the requirement of locus standi and of party aggrieved.

Magnificent efforts of Justice P.N Bhagwati & Justice V.R Krishna Iyer been the main reason for the Juristic Revolution to convert the Apex Court of India into the Supreme Court for all the Indians.

First Case of PIL was reported in 1979 showing the inhuman conditions of prisons and trial prisoners and a new era of PIL proclamation is done by Justice P.N Bhagwati in SP Gupta vs. Union Of India[7]. In this case, held that any member of public action or group with bonafide intention invokes the writ of Jurisdiction from High Court and Supreme Court seeking redressal against violation of the legal or constitutional right of a person who due to social or economic or other reasons can not approach to the court.

Due to the influence of this case, PIL becomes a powerful weapon for the enforcement of public duties.

Importance of PIL

There is numerous importance of PIL, let us discuss below them-

PIL is the better use of law to advance human rights and cover the scope of broad public issues.

Through the concept of PIL court seek to protect human rights by creating a new regime and expanding the meaning of fundamental rights.

Filing of PIL is an inexpensive remedy anyone can get relief easily and hence remedial in nature.

PIL helps us to improve things, which is not done by the executive properly as the Judiciary haul up the executive.

If a person is unable to produce sufficient evidence to support his/her case due to the economic and social cause, the Court may appoint a commission to look into the matter and collect the relevant facts about the case.

Through judicial invigilation, Court seeks to maintain state institution or also protect the rights of minorities and countless efforts made through PIL to maintain a healthy environment.

Process of filling a PIL

Any citizen of India can file a PIL for the sake of public welfare where the interest of the masses get affected under Article 32 in Supreme Court or under Article 226 in High Court and under Court of Magistrate under section 133 of CRPC. .A court can treat a letter or telegram as a Writ Petition and takes action upon it if some conditions collateral to it should be satisfied.

Public Interest Litigation has been logged in the same manner, as a writ petition is filed. If a PIL is filed in the High Court, then two copies of the petition have to be filed. And for the Supreme Court, then Five copies Also, an advance copy of the petition has to be served to each of the opposite parties, and this proof of service must be affixed on the petition. After that a Court fee of Rs. 50, for each number of the party, have to be affixed on the petition. Proceedings, in the PIL, start and carry on in the same manner, as other cases.

However, during the procedure and hearing of case proceedings, if the Judge feels that he may appoint the commissioner, to investigate the facts and allegations like pollution being caused, trees being cut, etc. After givings of replies, by the opponent party, or reapplication by the petitioner, the final hearing takes place, and the judge gives his eventual decision.

Subject Matter of PIL

Some categories are as follows which will be entertained as PIL

Bonded labor

In the matter of exploitation of children

Non-payment of minimum wages

Petitions coming from jails, complaining about the harassment, speedy trial, death in jail as a fundamental right, etc.

complaint against police for refusing to register a case, bride-burning, etc.

Petitions against the cruel acts on women, in particular, harassment of bribe, bribe-burning, murder, rape, kidnapping, etc.

Petitions complaining harassment of persons belonging to scheduled caste and scheduled tribes

Petitions pertaining to environmental issues

Merits & Demerits of PIL

MERITS

DEMERITS

Help to serve people at large not only individuals but also a weaker of the society, as PILi a is the less expensive remedy.

Whereas, due to its less fee more number of PIL filed hence lead to a lack of legal merit only used as a tool of harassment.

PIL is a speedy trial method as it can be issued by the High Court as well as Supreme Court, so it is not necessary to move orderly in court.

Due to the pool number of PIL, it kept busy Courts hence Court pay less attention to other litigations.

The mechanism of human rights can be managed and protected and set a new democratic regime.

But, sometimes people used PIL as a mass destructive weapon for the sake of his own benefit.

Aspects of Public Interest Litigation

(a) Remedial in Nature: The remedial nature of PIL is from traditional Locus standi rules. It indirectly incorporated the principles envisaged in part IV of the Constitution of India into part III of the Constitution. the longing and emerging of part IV into part III of the Constitution had changed the procedural nature of the Indian law into the dynamic welfare of public interest. In Bandhu Mukti Morcha v/s Union of India[8]. Example of this change in the nature of the judiciary and for juristic revolution.

(b) Representative Standing: Representative standing can be viewed as an innovative standing exception which allows a third party (not an aggrieved party) to file a habeas corpus petition on the ground that if the aggrieved party cannot approach the court himself. And in this context, the Indian concept of PIL is much wider as compared to the American.

(c) Citizen standing: This doctrine marks a great expansion of all the court’s rule, and hence being a protector of an individual right to the guardian of the rule of law.

(d) Non-adversarial Litigation: The Supreme Court in case People’s Union for Democratic Rights v. Union of India[9], held that point with all the emphasis on that public interest litigation is a totally distinct kind of litigation and unlike from the traditional litigation which is essentially of an adversary nature where there is a dispute between two parties, one making claim or seeking relief against the other (appellant) and that other opposing such claim or resisting such relief (respondent).

(e) Smoothing the strict rule of Locus Standi: The stern rule of locus standi has been cut short by way of Representative standing, and Citizen standing which has explained earlier. In D.C.Wadhwa v. State of Bihar[10]. Supreme Court held that an applicant, a professor of political science who had done the relevant research and enormously interested in ensuring proper implementation of the constitutional provisions, challenged the practice which becomes the usage of the state of Bihar in proclaiming a number of ordinances without getting the approval of the legislature. The court held that the applicant as a member of the public has initiates ‘sufficient interest’ to maintain a writ petition under Article 32.

The strict rule of locus standi has been moderate and a person who is acting in a bonafide (good intention) and having sufficient interest in the proceeding of Public Interest Litigation will have a locus standi and he/she can approach the court to wipe out such violations of fundamental rights and genuine violation of statutory provisions, but not for personal gain or personal profit or political motive or for not any unlawful consideration. the court has to balance between two conflicting interests:

(i) nobody should be allowed to engage in wild and reckless allegations which result in harm in the character of others; and

(ii) nobody should be allowed to do public mischief and to avoid mischievous petitions which have no legal merit seeking strongly, for unlawful motives, is not justifiable by the executive and the legislature. It is unfortunate to note that on account of temporary proceedings initiated before the courts, number days are wasted, which could have been spent for the disposal of cases. Though the Supreme Court tries every possible effort in fostering and developing the concept of PIL and extending its arms of sympathy to the poor, ignorant, deserted or oppressed and the needy whose fundamental rights are infringed and violated and whose prayers go unnoticed, unrepresented and unheard.

(f) Epistolary Jurisdiction: The judicial activism played an important role and take the highest bonus when it’s ordered to wipe tears from some eyes. This jurisdiction is someway different from collective action. As anyone can send the petition in the form of a letter and postcard and it will be treated as a petition and there is no need to show Locus standi mere sufficient interest for public welfare with bonafide intention is enough. In order to that number of PIL cells were open all over India for providing the desk for help to the socially and weaker class of the society.

Factors that have contributed to the growth of PIL are as follows:

The nature of the Indian Constitution. Unlike Britain, India has a written constitution and Part III ( which includes Fundamental Rights) and Part IV (Directive Principles of State Policy) provides a structure for maintaining relations between the state and its citizens and between citizens and among themselves.

India has the most progressive social legislation to be found anywhere in the world either relating to bonded labour, minimum wages, environmental issues, etc. This has made it quite easier for the courts to force the executive and state institutions when it is not performing their duties in ensuring the rights of the poor as per the law of the land.

Political, social and economic rights given in the Indian Constitution under Part IV are not justifiable, courts have creatively put these into fundamental rights thereby making them judicially enforceable. For example, the right to life in Article 21 has been enlarged to include the concept right to free legal aid assistance, the right to live with dignity, the right to education, the right to work, etc.

In PIL cases where the complainant is not in a position to provide all the necessary evidence, either because socially economically weaker, courts have appointed commissions to collect relevant information or facts and present it before the Court.

The mechanism for protection of Human Rights through PIL

Features of PIL is the better mechanism of PIL for securing Human rights, the courts seek to safeguard human rights in the following ways:

1) By inventing a new regime of human rights and by making a wider concept of the fundamental right to equality, life, and personal liberty. this results in, the right to a speedy trial, free legal aid, dignity, means and livelihood, education, medical care, clean environment, right again sexual harassment, solitary confinement, bondage and exploitation and so on emerge as human rights. These new re-conceptualized rights enforced through PIL.

2) Transformation towards a democratic state helps to assure justice. This is done by enlarging the scope of the traditional rule of locus standi. Any public or social action group can approach the court on behalf of the victim. Courts observation can be drawn even by writing a letter or sending a telegram. This is called epistolary jurisdiction.

3) By means of new kinds of relief under the court’s writ jurisdiction. For example, the court can award temporary compensation to the victims of governmental lawlessness. This contradicts the Anglo-Saxon model of adjudication. The grant of damages in PIL matters does not prevent the aggrieved person from bringing a civil suit for damages. In PIL cases the court can furnish any relief to the victims.

Landmark cases pertaining to PIL

Prem Shukla v. Delhi Administration [11]. In this case, a prisoner sent a letter to the judge of the court, complaining about the forced fetter on him and demanded protection against humiliation. The court considered the PIL petition and orders necessary directions considering the calm rule of locus standi.

Dr.Upendra Baxi (I) vs. State of Uttar Pradesh & another [12] In this case, two law professors wrote a letter to the court and telling about the inhuman conditions in the Agra Protective Home for Women. The court considered the letter as a PIL and asked to improve the condition of the protective home for women.

Vishaka vs. State of Rajasthan[13]. In this case, a woman, who was a social worker, was brutally raped while she was in the course of her employment and on behalf of her; an NGO filed a PIL in the Supreme Court for the protection of the rights of women at the workplace. The court accepted the petition and laid down the guidelines to safeguard the interest of women at the workplace and after that Sexual Harassment of Women at Workplace (Prevention, Prohibition and Redressal) Act, 2013 was enacted based on the guidelines laid down by Supreme Court in this case.

M.C. Mehta vs. Union of India & Others[14]. In this case, a PIL was filed to prevent and protect the Taj Mahal from the harmful gases and toxic gases released by the industry near the Taj Mahal. The court accepted this petition as it was for the protection of the environment from exploitation and the court ordered to put a Ban on 299 industries from using coal and asked them to change over to Compressed Natural Gas (CNG).

Hussainara Khatoon vs. State of Bihar[15]. This cause many people regarded as have the first PIL in India as well. In this case, the attention of the Court was on the inhuman condition of under-trials prisoners in the state of Bihar, who had been in detention pending trial for periods far in superfluity of the maximum sentence for their offences. The Court not only ordered to make the right to a speedy trial regarding the main issue of the case but also passed the order of general release of about 40,000 under-trials who had undergone detention beyond such a time period.

Role of Judiciary

In India, the Supreme Court makes the lead by allowing volunteer social activists to represent the interests of the poor and weaker sections of the society in judicial proceedings. By fattening the doctrine of locus standi in filing the petition and court introduced epistolary jurisdiction, which means to treat a letter written on behalf of an aggrieved person as a petition and examine the matter of the grievance.

In India judicial activism played a very important role. Generally speaking, when the Court takes up a matter for hearing or adjudication, it must be satisfied that the person who approaches the court has sufficient interest in that matter, It was made so in favour of social cause and the court accepts its validity make to set things right. Undoubtedly, such litigation has provided each and every citizen of India access to all the courts of the country.

It has developed in a way to democratize the judicial process through radical changes. Moreover, the PIL has contributed to the rise of a form of judicial scrutiny for governmental institutions ranging from hospitals, prisons, covering issues of health, environment, safety, security, privacy and etc.

Judicial activism is a very frequent and common phenomenon for one and a half decades. Its foundation laid down in the year of 1986 by Justice P.N. Bhagwati who bring the tradition of hearing a PIL even on a postcard and telegram. Justice Bhagwati has clearly stated, “The Supreme Court has chosen to take up a proactive and newly conceptualized approach for the last two years, particularly, having regard to the peculiar socio-economic conditions prevailing in the country.

Hindi meaning of Public Interest Litigation

जनहित याचिका

Image Source: NPC observer

Conclusion

This article basically deals with the remedies which are mentioned in our Indian constitution under part III of articles 32. And in this article any person whose legal or fundamental rights violated he/she move to the Supreme Court and High Court for the enforcement of their Right under article 32 and 226 respectively. Both the articles empower the courts to issue the decree of writs.

Writs are formal legal documents bearing the order of the court including the nature of habeas corpus, mandamus, Quo warranto, certiorari, and prohibition. It is circumstantial depending on the facts of the case that which writs will be issued to resolve the problem, however High court has the discretionary power in this regard.

Judicial activism enables more people to access to court through PIL, it is a writ petition filing for the cause of public welfare. Anyone can file PIL as PIL is for the protection of human rights. Judiciary provides an opportunity through PIL to a weaker section or socially backward people to get justice in an inexpensive way, this leads to a democratized country and juristic radical revolution in context to social, political, and economic justice as mentioned in the basic structure of the constitution.

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References

1951 AIR 270

AIR 193 Sc 280

AIR 1956 Sc 1740

1976 Ssc 521

1954

1976 AIR 1455

1981

(1997) 10 SSC 549

1982 AIR 1473

1987 AIR 579

1980 AIR 1535

(1983) 2 SSC 508

(1997) 6 scc 241

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The Writ of Habeas Corpus

This article is written by Suryansh Singh, a 3rd-year law student from Indore Institute of law. This article mainly discusses under what circumstances the writ of habeas corpus is issued to a person.

Introduction

Constitution of India is the supreme law of the land which lays down rules and regulations for the protection of the rights of the people and imposed duties over them. This vast literature is considered as the guardian and protector of the fundamental rights guaranteed to an individual. The right of WRITS is one such right available to a person. The provisions of the Indian constitution are sanctioned by law thus the judiciary has the independent authority over the matters in which writs are to be issued. The concept of the writs is to enable the immediate determination of the rights of an individual and help the person to achieve the benefit of his right.

There are five types of writs in our constitution those are as follows:

Writ of habeas corpus

Habeas corpus is the Latin term which means ‘you must have the body’. It is the order issued by the court to present the detenu before the court and to check whether the arrest was lawful or not.

Writ of Mandamus

The writ of mandamus is the order or command issued by any statute or any authority sanctioned by law to any person, corporation or any other authority in order to perform any public duty.

Writ of prohibition

The writ of prohibition means is a writ issued by the higher authority to its subordinate authority in order to stop something which the law prohibits. This writ can only be issued against a judicial and quasi-judicial body.

Writ of certiorari

The term certiorari is a Latin word which means to be informed. This writ is issued by the higher court to review the actions of the lower court.

Writ of quo warranto

Writ of quo warranto means by what authority. This writ is issued which requires a person to show by what authority he has exercised his powers or rights.

The supreme court under Article 32 and the high court under Article 226 have the power to issue writs of these nature. Though under Article 32 the supreme courts issue the writs if there is any violation of the fundamental rights of a person but the High Court under Article 226 has a wider jurisdiction to issue the writ for both a violation of the legal as well as the fundamental rights.

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Meaning of the writ of habeas corpus

The writ of habeas corpus is the legal procedure which acts as a remedial measure for the person who is illegally detained. The term habeas corpus is the Latin word which means to bring or present the body before the court. It is the most important right available to the person detained unlawfully. The basic purpose for which this writ is used is to release a person from unlawful detention or imprisonment. This writ is of great importance as it determines a person his right to freedom and personal liberty.

Illustration

A has been taken into custody by B a police officer without a warrant. All the efforts made by A’s family to know the whereabouts of A turned out to be futile. As he was detained wrongfully by B (police officer), the writ of habeas corpus can be filed in court by A’s family on his behalf.

Nature of the writ of habeas corpus

The concept of habeas corpus can be traced way back in the thirteenth century. The writ of Habeas corpus cum causa is an order calling upon the person who has detained another person, to present the person in the court and justify his actions that on what grounds and under what authority he has confined that person. If the court doesn’t find any legal justifications for the cause, then it will order for the immediate release of the person confined or imprisoned.

Who may apply for the writ of habeas corpus

To answer this question the courts have made this clear in various cases that the person who may apply for the writ of habeas corpus should be

The person confined or detained illegally.

The person who is aware of the benefit of the case.

The person who is familiar with the facts and circumstances of the case and willingly files an application of the writ of habeas corpus under article 32 and 226 of the Indian constitution.

When the writ of habeas corpus is refused

The following conditions when the writ of habeas corpus is refused are as follows:

When the court doesn’t have the territorial jurisdiction over the detainer.

When the detention of a person is connected with the order of the court.

When the person detained is already set free.

When the confinement has been legitimized by the removal of the defects.

The writ of habeas corpus will not be available during an emergency.

When the competent court dismisses the petition on the grounds of merits.

Whether the doctrine of res judicata applies to this writ

When it comes to the illegal confinement of a person, the doctrine of res judicata is not applicable. Under article 32 successive petition for the writ of habeas corpus can be filed in the court with fresh grounds which were not covered in the earlier petition filed for the same. The petition for habeas corpus is maintainable if it is filed in the forum having its independent existence and separate jurisdiction and competency.

In Lallubhai Jogibhai Patel vs Union Of India & Ors on 15 December, 1980 it was held that no second petition for the writ of habeas corpus is maintainable in the court if filed on the same grounds as of the first one.

Preventive detention

Preventive detention is the confinement or imprisonment of a person in order to prevent him from committing any kind of offence in the future. It does not act as a punishment or penalty imposed upon a person, it’s just a precautionary method. The concept of preventive detention and habeas corpus comes hand in hand. Article 22 of the Indian constitution states the procedure of preventive detention and requires a strict adherence of law. Parliament is authorized to make laws for preventive detention for various reasons connected with it like:

Defence.

Foreign relations or foreign affairs of the country.

With the very purpose of providing security to India and its state.

For the maintenance of public order.

However, such detention may be monitored through judicial review by checking its preconditions.

Alternative remedy

If the defendant gives lawful justification for the detention or confinement the writ of habeas corpus may not be issued by the court. However, in case of an alternative remedy, the applicant still has the right of issuing the writ of habeas corpus. It is not refused on the grounds of availability of the alternative remedy to the applicant.

Burden of proof

The burden of proof lies over the person or the authority to satisfy the court that the detention or confinement of the person was made on legal grounds. And if the detenu alleges that the confinement was malicious and outside the jurisdiction of the authority detaining the person than the burden of proof lies over the detenu.

Territorial jurisdiction

Under Article 32 of the Indian constitution, the supreme court has jurisdiction over all the authorities within and outside the territorial jurisdiction of India. Under Article 226 the high court is empowered to deal with the matter when the high court is having control over that authority and the probable cause of action arises.

Writ of habeas corpus during an emergency proclamation

The writ of habeas corpus is maintainable during an emergency proclamation, as after the 44th amendment in 1978 it was stated that fundamental rights enshrined under article 20 and 21 cannot be suspended. And for the enforcement of these rights, the writ petition can be filed in court.

Cases

Additional district magistrate of Jabalpur v. Shiv Kant Shukla 1976 SC 1207

This case is also known as the habeas corpus case and it was based upon the grounds of issuance and the viability aspect of this writ. This whole case spins around the situation when the emergency was proclaimed and the question was raised whether the writ of habeas corpus is maintainable in this situation or not. It was held that as in the case of Liversidge v. Anderson during emergency all the rights were held suspended, the same was held in the instant case where a state has the power to restrain the rights especially right to life enshrined under article 21 of the Indian constitution in an emergency situation. This decision was considered to be the darkest day of Indian history.

Sheela Barse v. State of Maharashtra 1983 SCC 96

In the instant case, a letter was written to the supreme court regarding the condition of the women prisoners who were assaulted in the lockup and the writ petition was filed regarding this situation by the plaintiff who was a human rights activists. An investigative authority was sent by the court for crosschecking the situation and the allegations made by the plaintiff. It was found that the allegations were correct. It was held that if a person detained or confined can’t file an application for the writ than some other person can file it on his behalf which quashed the locus standi approach.

Sunil Batra v. Delhi Administration 1980 AIR 1579

In the instant case, it was held by the court that the writ petition of habeas corpus can be filed in the court that not only for the wrongful or illegal confinement of the prisoner but also for his protection from any kind of ill-treatment and discrimination by the authority responsible for his detention. Thus the petition can be filed for the unlawful detention and checks the manner in which the detention was caused.

Nilabati Behra v. The State of Orissa

In the instant case, the son of the petitioner was taken away by the Orissa police for the purpose of interrogation. All the efforts made in order to trace him turned out to be futile. So the writ petition of habeas corpus was filed in the court. During the pendency of the petition, the dead body of the petitioner’s son was found on the railway track. The petitioner was awarded compensation for Rs. 1,50,000.

Kanu Sanyal v. District Magistrate Darjeeling & Ors. 1974 AIR 510

In the instant case, it was held that instead of following the traditional method of producing the body before the court there must be complete focus on the legality of the detention by looking into the facts and circumstances of the case. This case majorly focused on the nature and scope of the case and stated that this writ is a procedural writ and not a substantive writ.

A.K. Gopalan v. The State of Madras

In the instant case, the preventive detention act was examined based on its constitutional validity. If a legislature restraints a person from his personal liberty should be competent enough to make such law in the first place. Detention is turned out to be unlawful if the law backing it up is unlawful. A person has the right to approach the court. A person can file an appeal in the supreme court against the order of high court in case of accepting or refusing the application for the writ of habeas corpus.

Conclusion

It can be concluded that the right of WRITS is one such right available to a person. The provisions of the Indian constitution are sanctioned by law thus the judiciary has the independent authority over the matters in which writs are to be issued. The concept of the writs is to enable the immediate determination of the rights of an individual and help the person to achieve the benefit of his right.

The writ of habeas corpus is the most important writ available to a person as it enables him to determine the right to his liberty. It acts as a remedial measure which ensures to set free the detained person from the illegal imprisonment. However, it doesn’t absolve any person from his liability. It demands lawful justification for the detention and protects the person from any kind of ill-treatment and discrimination from the authority which detained the person. In this manner, the judiciary is using this writ in such an effective manner in order to ensure security to a person from unlawful confinement.

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The Relation Between the Directive Principles of State Policy and Fundamental Rights

This article is written by Shreya Tripathi of Banasthali Vidyapith, Jaipur. The article explains the Relation between Fundamental Rights and Directive Principles of State Policy with various famous case laws under the Constitution of India.

Introduction

The constitution of India is considered as the longest written constitution of any sovereign nation in the world. At its birth, it had 395 articles in 22 parts and 8 Schedules and it currently has a Preamble, 25 Parts with 12 schedules, 5 appendices, 101 amendment and 448 articles. January 26 is celebrated as the Republic Day every year. The importance of the Constitution was given effect after 67 years and later on, it was amended 101 times also.

What are Fundamental Rights and DPSP?

Fundamental rights and DPSP as cherished in the Constitution of India together comprises the human rights of an individual. The Constitution expresses fundamental rights as an idea which appeared in India in 1928 itself. The Motilal Committee Report of 1928 clearly shows inalienable rights derived from the Bill of Rights enshrined in the American Constitution to be given to the individual. These rights were preserved in Part III of the Indian Constitution. of India.

Fundamental rights are also known as Inherent rights because they are inherent to every person by birth. These are the rights which provide an individual with some basic rights for the purpose of survival. No discrimination is made on the basis of religion, caste, race etc. and if any person feels so that his fundamental rights are being infringed then he can surely approach to court for the violation of his rights.

There are six fundamental right mentioned under the Constitution of India

Right to equality

Right to freedom

Right to freedom of religion

Right against exploitation

Cultural and educational rights

Rights to constitutional remedies

Right to Equality

Freedom Law is supreme in nature and everyone is equal before the law and equal treatment should be given to everyone. No discrimination should be done on the basis of race, caste, creed or gender. An equal amount of opportunity should be given to every individual in the field of employment. Abolition of untouchability and titles.

Right to Freedom

Every individual has the right to freedom to form an association, peacefully assemble, to travel or move freely reside and settle at any location and to go or opt for any profession throughout the territory of India. Right to education, life, liberty and dignity also fall under this right, protection in respect of arrest and detention and conviction of an offence.

Right against Exploitation

Prohibition of Child labour and Human trafficking and forced labour is a result of this right.

Right to Freedom of religion

This right provides us with the freedom to follow any religion without any question mark and freedom to attend any religious ceremony at a religious institution or education centre and pay tax for the promotion of religion. Nobody can force any individual who is not interested in paying any kind of tax for religious purposes.

Cultural and educational Right

It provides protection to different languages and varieties of culture present in India. It also protects the rights and culture of minorities. Establishing educational institutions and primary education to every child below the age of 14 years comes under this head.

Rights to seek Constitutional remedies

An individual has the right to move in any court of law if they feel fundamental rights are being violated. Our constitution consists of 5 writs. Here writs mean the “Order of court”. If only fundamental rights are violated then the individual can directly approach to Supreme Court of India. The writs are explained below:

Habeas corpus

Mandamus

Prohibition

Certiorari

Quo warranto

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Habeas Corpus

It simply means to ‘Produce the body’. This writ is issued to produce a person who has been detained and to present him before the court to release if such detention is illegal.

Mandamus

This means ‘We Command’. It is an order given by the Superior Court to the Inferior Court to perform a public duty.

Prohibition

It is basically known as Stay order which prohibits from doing certain actions by the authority where it has no jurisdiction to deal with the case.

Certiorari

This means ‘to be Certified’. This order can be issued by the Supreme Court for quashing the order which is already passed by any inferior court, tribunal or authority.

Quo – warranto

It signifies by what authority? It is a writ issued to restrain a person from holding a public office to which he is not entitled.

The concept of DPSP emerged from Article 45 of the Irish Constitution. DPSP imposes a duty upon the state not only to protect and acknowledge the Fundamental right of the individual but also to achieve Social-economic goals. DPSP was summarizing in Part IV of the Indian Constitution of India.

Certain guidelines are present for the state authority to work upon them for the protection of society. It mostly focuses on welfare and improvement of society altogether. As fundamental rights are enforceable in a court of law, DPSP cannot be enforced for making any rules, policy or guidelines.

Some of the examples of DPSP are:

Right to education

Maternity benefit

Uniform Civil code

Providing proper nutrition food

Providing adequate means of livelihood

However, it is already a controversial topic in the Constitution about the relationship of Fundamental rights and DPSP, as there would be conflict in the interest of individual at a micro level and benefit of the community at a macro level.

The central part of this controversy is the question person should have primacy in the case of conflict between Chapter III and IV of the Constitution of India.

Relationship between Fundamental Rights and DPSP

Constitution of India is a Grundnorm all the law which are made must conform to the constitution of India.

The difference between DPSP and FR are:

Fundamental Rights

DPSP

Limited scope.

Scope of DPSP is limitless.

Protect the rights of the individual and work at a micro level.

Protect the rights of a citizen and work at a macro level.

If anybody feels that his rights are being violated can approach the court of law.

DPSP are not enforceable by law.

For better understanding about the conflict between DPSP and Fundamental Rights lets study some of the important case laws and then we can decide what happens when a conflict arises between both of them.

The first case we are going to study is about Golak Nath vs the State of Punjab, A.I.R. 1976 SCR (2) 762. Firstly, we will see what the Supreme Court has said and then we will discuss what the parliamentary action was taken. In this case, S.C. said Fundamental rights cannot be diluted, abridged, diminished, finish or taken away and then in response to it by bringing Amendment Act of the Constitution and inserted Article 31 (C) in part III now what does Article 31 (C) say:

By making a law under Article 39 (B) which talk about material resources of community and Article 39 (C) discuss the operation for an economic system. They say that if any law is framed with effect to DPSP and if it violates Article 14, 19 and 21 then the law should not declare constitution as void merely on this ground.

In Champak Dorairajan vs. the State of Madras, the Supreme Court held that DPSP cannot override the provisions of Part III of the Constitution of India i.e. the Fundamental Rights. Now DPSP has to run subsidiary to the Fundamental rights and have to confirm them and this was very important judgement the parliament responded by amending various fundamental rights which were coming in conflict with DPSP.

So, now we will move to our next Case Kerala Education Bill where the Doctrine of Harmonious Construction was introduced by the Supreme Court.

Now, what is the Doctrine of Harmonious Construction? It says that you need to constitute the provision of the constitution in such a way that fundamental rights and DPSP go hand in hand so this was there to avoid the situation of conflict while enforcing DPSP and Fundamental rights. So you should construe each and every provision of the constitution is such a way so they work harmoniously.

Now as per this doctrine the court held that if no inherent power is present then no conflict will arise but if any conflict comes in force just because the court is trying to interpret a particular law so they should attempt to give effect to both as far as possible.

So to connect them together by doing something without doing any kind of amendment. After all the efforts to make everything look balanced if any interpretation is done then the court has to implement Fundamental rights over DPSP.

In the case of Kesavananda Bharathi, 1973 Supreme Court held that Parliament can amend any part of the Constitution but without destroying the basic structure of the constitution. Now, the second clause of Article 31 (C), as we have read earlier, was declared unconstitutional and void because that was against the basic structure. However, the first clause of Article 31 (C) was said to be valid. In response, the parliament brought the 42nd Amendment Act, 1976 and extended the scope of the above provisions of Article 31 (C).

Now in the case of Pathumma vs. the State of Kerala, 1978, the Supreme Court emphasised on the purpose of DPSP that is to fix some social- economic goals. The constitution aims at bringing about a combination between DPSP and Fundamental rights which is reflected in several other cases as well.

In Minerva Mills Case, the Court held that the law under Article 31 (C) would be protected only if it is made to implement the directive in Article 39 (b) and (c) and not in any other DPSP. Earlier protection was given to all the DPSP but after this case, it becomes restrictions and was declared that if protection is given to all DPSP it will be declared as void and unconstitutional in nature.

In State of Kerala vs. N.M.Thomas, 1976, the Supreme Court said that Fundamental rights and DPSP should be built in such a way to be with each other and every effort should be taken by the court to resolve the dispute between them.

In Olga Tellis vs. Bombay Municipal Corporation, 1985, the Supreme Court has submitted that DPSP are fundamental in the governance of the country so equal importance should be given to meaning and concept of fundamental rights

In Dalmia Cement vs. Union of India, the Supreme Court said that Fundamental rights and DPSP are supplementary and complementary to each other and the preamble to the constitution which gives an introduction, fundamental rights, DPSP are conscience of the Constitution.

In Ashok Kumar Thakur Vs. Union of India, 2008, the Supreme Court said that no difference can be made between the 2 sets of rights. Fundamental rights deal with Civil and political rights whereas DPSP deals with social and economic rights. DPSP are not enforceable in a court of law doesn’t mean it is subordinate.

So basically, in all these cases, what they are trying to explain is that Fundamental rights and DPSP go together. Neither of them is supreme to each other.

Government has done several acts for the implementation purpose like panchayat were established by 73rd amendment, Nagar Palika under Article 41, compulsory education to every child who is below the age of 14 years and it was made Fundamental rights, to protect monuments of national importance now this right was converted into a law that is Ancient and Historical Monuments and Archaeological sites and remains (Declaration of National Importance) Act, 1951.

Conclusion

It can be concluded by saying that the basic feature of the constitution is to maintain harmony between fundamental rights and DPSP. They are complementary and supplementary to each other. The theme of fundamental rights must be made in light to DPSP.

Reference

Mayank Shekhar, Relationship between Fundamental Rights and Directive Principles of State Policies, Legal bite – Law and beyond (September 16, 2019).

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Writs under the Indian Constitution

This Article is written by Adarsh Singh Thakur, 3rd-year student, Indore Institute of Law. He discusses the writs and their types under the Indian Constitution in detail.

Introduction

The Supreme Court and the High Courts have been provided with many powers which they exercise to provide justice to the people. One of the most important tools or power which the courts have been provided with by the constitution is the power to issue writs.

A Writ means a command of the Court to another person or authority by which such person/authority has to act or abstain from acting in a certain way. Thus, writs are a very essential part of the judicial power of the Courts.

Writs in the Constitution

In India, the constitution has provided the Supreme Court with the power to issue the Writ under Article 32 of the Constitution. Under Article 32, when any Fundamental Right of a citizen is violated, that person has the right to directly approach the Supreme Court for the enforcement of his rights and the Court can issue the appropriate Writ for enforcing such right.

The power to issue Writs are also provided to the High Courts of India under Article 226. While citizens can approach the Supreme Court only when his Fundamental Right is infringed, the citizens also have the right to approach the High Court for the issue of Writs in other matters in which the fundamental rights are not violated. For e.g. in the case of Smt. Imtiaz Bano vs Masood Ahmad Jafri And Ors. a mother had filed a writ petition for habeas corpus under Article 226 to get custody of her 2 children. The High Court allowed the petition and the writ was issued in her favour. Thus, the scope of the power to issue Writs is wider in the case of High Courts as compared to the Supreme Court.

Illustration: A is an Indian citizen whose Fundamental Right has been violated. Here A has the Right to either approach the Supreme Court or the High Court for enforcing his right. But if there is a violation of A’s right which is not a Fundamental Right then, he only has the right to approach the High Court under Article 226.

Therefore, a citizen has the right to approach either the Supreme Court or the High Court for issue of writs but if he chooses to approach any of the Court and his suit is dismissed by the court, the citizen cannot file the same suit in the other Court because in India, the principle of res judicata is being followed which means that a second case cannot be filed for the same cause of action. But if a person files the case in the High Court and the High Court does not decide in his favour, he has the right to appeal against the decision in the Supreme Court.

Illustration: A files a suit under Article 226 in the High Court and the Court accepts his suit. After the proceedings of the case are concluded, the High Court ruled in favour of the defendant. Here A has the Right to appeal in the Supreme Court against the decision of the High Court. But if the High Court had rejected the suit filed by A, then he does not have the right to appeal in the Supreme Court.

Types of Writs

The Indian Constitution provides 5 types of writs which can be issued by the Courts. They are:

Habeas Corpus

Mandamus

Certiorari

Quo Warranto

Prohibition

Habeas Corpus

The Writ of Habeas Corpus is issued by the Courts in those cases where a person is illegally detained. Habeas Corpus means ‘to have the body’ and it is one of the most effective remedies available to a person detained.

By this Writ, the Court commands the person or authority who has detained or restrained another person to present such person before the Court. The Court requires the detaining person to provide the grounds on which the person has been detained and if he fails to provide a valid ground, the person who has been detained will be released by the Court immediately.

Illustration: A is wrongfully detained by B, a police officer. A writes to the High Court regarding the same. The High Court summons B with A and asks the grounds for detaining A. If B fails to provide a valid ground or justification for A’s detention, A will be free to go.

This Writ is very important for the personal liberty of the citizens because if this Writ is not provided by the Constitution a person can be unlawfully restrained or detained by any authority and it will be a clear violation of the personal liberty of the citizens.

Even though the purpose this Writ is to prevent a person from being detained but it will be applicable only when the detention or restraint is unlawful. If the Court finds the grounds for detaining to be justified then this Writ cannot be issued. Also, if the Court orders the detention of a person then it does not amount to unlawful detention and this Writ cannot be issued.

This Writ can be applied not only by the person who is detained but it can also be done by some other person on behalf of the detained person.

Rules regarding the Writ of Habeas Corpus

The following are the rules related to the writ of Habeas Corpus:

The applicant should be in custody of another

Usually, the detained person and his family members are allowed to file an application for habeas corpus but the court has also allowed such application by strangers if it is done in public interest.

The manner prescribed for filing this writ is not necessary so both formal and informal applications in respect of the writ is accepted by the Courts. For e.g. a writ application can also be made by postcard. In the case of Sunil Batra v. Delhi Administration, the Supreme Court had accepted the application made through a letter by a co-convict (a stranger) due to the inhuman treatment of prisoners. In this case, the letter was accepted as an application and the writ of Habeas Corpus was issued.

A person cannot make the application for the Writ successively to different judges of the same court. Thus, if an application is rejected by one judge, the same application cannot be made to another judge of the same court and if it is done, such an application will be rejected because of the principle of res judicata.

This Writ will apply in case of an arrest made by the police when all the formalities and procedures which are required to be followed are not followed. For example – the requirement of presenting the arrested person before a magistrate or the officer in charge of the police station. [Section 56 of CrPC]

Liberal Approach of the Court

In the cases of Habeas Corpus, the Courts have recognised the existing socio-economic conditions in the country and the fact that still, many people are illiterate and poor. Thus, the Courts do not reject the application made by the petitioner on the grounds that he has failed to show the proper ground on which he has challenged the detention.

Mandamus

Mandamus is another important Writ which is provided for by the Indian Constitution. In the Writ of Mandamus, the superior courts order the Inferior Courts to do an act or to abstain from doing an act. This order can also be given to an Inferior Tribunal, Board, Corporation or any other type of administrative authority.

In India, the Supreme Court is the apex court, therefore it has the power to issue the Writ of Mandamus even against the High Court even though the High Courts have also been provided with the power to issue such Writs under Article 226. So, a High Court can issue this Writ under Article 226 only to the Inferior Courts such as the trial court of a district.

This Writ is useful for enforcing the duty which is required to be done by law or by the office which a person holds. For e.g. the Judge of the Court has a duty to follow the principles of natural justice and if the Judge fails to do so, a Writ can be issued by the Superior Court to observe the fulfillment of this duty.

One of the most important points about the Writ of Mandamus is that it cannot be issued against a private person and therefore only the State or the people who hold any office which falls in the category of a public office can be compelled to do or to abstain from doing an act.

Illustration: A is a public servant who has a duty towards B which he has to fulfil according to the law but he doesn’t fulfil the duty. B is aggrieved by this non-performance and therefore approaches the High Court for demanding the fulfilment of the duty by A. Here the High Court on being satisfied that the case of B is bona fide and there is a duty which should be fulfilled, will issue the Writ of Mandamus and A will be bound to fulfil the duty he has avoided until now. But if A was a businessman who had some duty towards B but he fails to perform it. In such a case A cannot approach the Court for Mandamus because this Writ cannot be issued against a private person.

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Grounds for Mandamus

This Writ can be issued by the Courts on the following grounds:

The petitioner has a right recognized by law. The whole purpose of this Writ is to enforce the rights of the citizens but if there is no right which accrues to a plaintiff, he cannot approach the court to issue the Writ of Mandamus.

The right of the petitioner has been infringed. Having a right does not automatically give ground for issuing the Writs because any person will approach the court without having any cause of action. Thus only when a right is violated, the Writ can be issued by the court.

The petitioner has demanded the authority to perform their duty but there has been non-performance of such duty. The Writ is issued to compel the authority to do the act which they are required to do by law or by the post they are holding thus it is an essential ground for Mandamus.

The last essential ground for Mandamus is the absence of an effective alternative remedy which can be resorted to by the petitioner to enforce the duty of the authority.

The petitioner has to show to the Court that a duty is owed to him by the authority and such authority has not performed their duty. This Writ can be issued against all the administrative actions which are unlawful in nature.

The authority has many duties, some of which are mandatory and while some are left at their discretion to be performed. Thus, if an authority does not perform their mandatory duty, the Writ of Mandamus will be issued by the Court. But in cases of discretionary duties, the writ cannot be issued but the authority still has to act in good faith while deciding whether the discretionary duty should be performed or not.

In the case of Vijaya Mehta v. State of Rajasthan, a petition was filed in the High Court for compelling the State to perform its duty of appointing a commission to look into the climate change and floods in the State. It was held by the Court that the State Government would have to appoint a commission only when a resolution was passed by the Legislature, moreover, it was a discretionary duty and not a mandatory duty, so the Writ of Mandamus was not issued in this case.

In the case of Bhopal Sugar Industries Ltd. v. Income Tax Officer, Bhopal, the Income Tax Appellate Tribunal had given clear directions to the respondent Income Tax Officer by its final order. The Income Tax Officer had still refused to carry out the directions given by the Tribunal. It was held by the Supreme Court that the Income Tax officer had a mandatory duty to fulfill the directions given by the Tribunal and non-performance of which amounted to grave injustice. Thus, the Writ of Mandamus was issued to direct the officer to carry out the directions of the Tribunal.

When is Mandamus not allowed?

The Writ of Mandamus is a discretionary power of the Court and is not a right which can be enforced by the petitioner therefore in many cases this Writ can be refused by the Courts.

The Courts can refuse to issue these Writs in the following cases:

Where the right of the petitioner has lapsed

The duty has already been fulfilled by the authority against which such a Writ is sought to be issued and therefore issuing the Writ would amount to nothing in such a situation.

Who can apply for this Writ?

Usually, the person whose right is infringed is allowed to apply for the Writs of Mandamus but after the Supreme Court adopted a liberal view and the advent of Public Interest Litigation in India, a public-spirited citizen can also apply for the issuing of the Writ of Mandamus on other people’s behalf.

In order to issue a Writ of Mandamus the following considerations are of great importance:

The duty which is sought to be enforced is a public duty.

Such duty is enforceable by law.

In the case of Ratlam Municipality v. Vardhi Chand, it was held that Ratlam Municipality was a statutory body which owed duties to the public such as removing night soil and rubbish, removing any public nuisance etc. and therefore the Writ of Mandamus was issued by the Court to enforce these duties by the Municipality.

Thus, an application for Mandamus can be made not only by the affected people but also by those who want to enforce these Writs on behalf of others in the public interest.

Certiorari

Certiorari is a different type of writ when compared with other Writs. This Writ is corrective in nature which means the purpose of this Writ is to correct an error which is apparent on the records.

Certiorari is a Writ which is issued by a superior court to an inferior court. This can be issued when the superior court wants to decide a matter in the case itself or if there is an excess of jurisdiction by the inferior court. This Writ can also be issued when there is a fundamental error in the procedure followed by the inferior court or if there is a violation of the principles of natural justice.

If the superior court finds out that there has been a violation of natural justice or a fundamental error on the procedure adopted, it can quash the order of that inferior court.

Illustration: There is a case in the District Court and the court has no jurisdiction to decide such cases. Still, the District Court Judge tries the case and gives his decision and an application is made by A (the aggrieved party by such decision) to the High Court. Hereby the power of issuing Writs, the High Court will issue a Writ of Certiorari on the order of the District Court, as a result, the order of the District Court will be quashed.

Grounds for Certiorari

The Writ of Certiorari can be issued on the following grounds:.

On the grounds of jurisdiction, a Writ can be issued by the superior court. Whenever an inferior oversteps its jurisdiction or abuses the jurisdiction provided to it or when there is an absence of jurisdiction of the inferior court, the Writ will be issued to quash the order made by the inferior court.

The violation of principles of natural justice is another ground on which the Writ of Certiorari can be issued by the court. The principles of natural justice form an important part of the Indian Constitution as these principles have been recognized by the Constitution such as the principle of Audi alterum partem which means hearing of both the sides is an essential part of the Indian Constitution.

When there is an error apparent on the record, it becomes a valid ground for issuing the Writ of Certiorari. This Writ can be issued when the error is based on a clear disregard to the provisions of law and not merely because the judgement was wrong.

Important Conditions for Certiorari

For the Writ of Certiorari the following conditions should be fulfilled:

The body or person has legal authority.

Such authority is related to determining those questions which affect the rights of the people.

Such a body or person has a duty to act judicially in doing its functions.

Such a person or body has acted in excess of their jurisdiction or legal authority.

When all these conditions are fulfilled, only then a Writ of Certiorari can be issued against the body or person who has acted in excess of their jurisdiction.

Rule of Proceeding in Personam

In the cases related to the Writ of Certiorari, the person who is aggrieved by the wrongful exercise of jurisdiction by the court should bring the petition before the superior court. In this regard, this Writ is different from the Writ of Habeas Corpus as Habeas Corpus can be applied for even by a non-aggrieved person and the courts will accept such an application.

The proceeding in case of Certiorari is an original proceeding before the superior court which can be initiated by a petitioner before he High Court under Article 226 and before the Supreme Court under Article 32 of the Indian Constitution.

Against whom this Writ lies?

The Writ of Certiorari lies against those bodies which are judicial or quasi-judicial in nature. Thus, when anybody or a person is performing a judicial act, their acts can be subjected to the Writ of Certiorari.

It also means that the scope of the application of this Writ is limited to only the judicial bodies or the bodies which perform judicial functions and it will not extend to the Central, State or Local Governments because their functions are administrative in nature and not judicial.

Quo Warranto

The Writ of Quo Warranto is issued by the courts against a private person when he assumes an office on which he has no right. Quo Warranto literally means ‘by what authority’ and it is an effective measure to prevent people from taking over public offices.

Illustration: A who is a private citizen and has no qualifications for the post of sub-inspector assumes such office. Here a Writ of Quo Warranto can be issued against A to call into question his authority on which he has taken the control of the office of sub-inspector.

The power to issue this Writ is discretionary on the courts and therefore nobody can demand that the court is bound to issue this writ.

Conditions for issuing Quo Warranto

The Writ can be issued only when these conditions are fulfilled:

The office which has been wrongfully assumed by the private person is a public office.

The office was created by the Constitution or by any other statute.

The nature of the duties which arises from this office is public.

The term of the office must be of a permanent nature and it should not be terminable at any person or authority’s pleasure.

The person against whom the Writ is sought to be issued is in actual possession of the office and is using such office.

This Writ can also be issued in those cases where a person was entitled to hold the office earlier but after getting disqualified he is still in possession of the office.

Thus in cases where the office is of private nature, this Writ cannot be issued by the Court. This view was held by the court in the case of Niranjan Kumar Goenka v. The University of Bihar, Muzzfarpur, in which the court observed that the Writ of Quo Warranto cannot be issued against a person who is not holding a public office.

In the case of Jamalpur Arya Samaj Sabha v. Dr. D Rama, an application for the Writ of Quo Warranto was made by the petitioner in the Patna High Court against the Working Committee of Bihar Raj Arya Samaj Pratinidhi Sabha which was a private body. The court refused to issue the Writ because it was not a public office.

Prohibition

The last Writ which can be issued under the Constitution is the Writ of Prohibition. This Writ is not issued often and is an extraordinary remedy which a Superior Court issues to an inferior court or tribunal for stopping them from deciding a case because these courts do not have the jurisdiction.

If the court or tribunals does not have jurisdiction and it still decides the case, it will be an invalid judgement because for an act to be legal it should have the sanction of law. For e.g., if a District Court is hearing an appeal against the judgement of the High Court, such an act is bound to be prohibited because the District Court does not have the power to hear such an appeal. So, a Writ of Prohibition will be issued against such an act of District Court.

Rules of Writ of Prohibition

In cases of Writ of Prohibition the following rules are observed:

The Writ can be issued only when:

The inferior court or tribunal has overstepped its jurisdiction

The court or tribunal is acting against the provisions of law

In cases where the court is partly acting within its jurisdiction and partly outside it, the Writ will be issued against the act which is partly outside its jurisdiction.

The fact that the applicant has a right to appeal against the order of the inferior court will not be a bar to issue this Writ.

This Writ can be issued only when the proceedings are pending in the inferior court and not when an order has already been passed by that court. Thus, this Writ is a preemptive remedy which is exercised by the superior court to prevent the inferior court from acting outside its jurisdiction.

The Writ of Prohibition can be issued only against a judicial or a quasi-judicial body and it cannot be issued against any administrative body.

Difference between Prohibition and Certiorari

Both the Writs Certiorari and Prohibition appear to be the same but there is one major difference between the two. In the Writ of Prohibition, the superior court issues the writ before the final order is passed by the inferior court and therefore this is a preventive remedy, while in Writ of Certiorari the superior court issues the Writ after the inferior court has made the final order. Thus the Writ of Certiorari is a corrective remedy by which the order of the inferior court is quashed.

Conclusion

The Constitution of India has provided the power to issue Writs to the Supreme Court under Article 32 and to High Courts under Article 226. These Writs are a command which is given by the Courts for the performance of an act to the public authority which has a duty to perform it.

There are five types of Writs which are Habeas Corpus, Mandamus, Certiorari, Quo Warranto and Prohibition and all these writs are an effective method of enforcing the rights of the people and to compel the authorities to fulfil the duties which are bound to perform under the law.

Of these Writs, the scope of Mandamus is the widest. While other Writs are issued in certain circumstances only, such as when a person is illegally detained (Habeas Corpus) or when there is overstepping of jurisdiction by a court (Certiorari), Mandamus can be issued in those cases where there is on the performance of duty the authority.

So, all these Writs have played a key role in enforcing the rights of the people and have also improved the scope of the power judicial review of courts.

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loyallogic · 5 years

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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

Public Interest Litigation Explained

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Development and Expansion of Public Interest Litigation

Drawbacks of Public Interest Litigation

Control on Frivolous and Vexatious Litigations

Conclusion

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loyallogic · 6 years

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Different Writs Enshrined in the Constitution

This article is written by Mansi Jain, Student, National Law University, Jodhpur. Here she discusses the different types of Writs.

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.

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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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juudgeblog · 6 years

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Writs

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

Against whom can a writ be issued?

Who can approach Court under writ jurisdiction?

What are the different writs enshrined in the Constitution?

Habeas Corpus

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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.

Mandamus

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.

Prohibition

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

Certiorari

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

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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loyallogic · 6 years

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Right to constitutional remedies – Analysis of Article 32 of the Indian Constitution

In this article, Kabir Jaiswal does analysis of Article 32 of the Constitution of India.

Article 32 is the “soul of the Constitution and the very heart of it”.

The best conferment of the Constitution is the Fundamental Rights. Somehow or another, they frame the rampart of our Constitution. Each one of these Rights is trivial if there exists no instrument to authorize them. Article 32 gives such a component. That is the reason it is the gem, the delegated wonder, the heart, and the spirit of the Constitution.

Right to constitutional remedies

Article 32 is known as the “spirit of the constitution and exceptionally heart of it” by Dr. Ambedkar. Preeminent Court has included it in fundamental structure regulation. Further, it is clarified that privilege to move to Supreme Court can’t be suspended with the exception of generally given by the Constitution. This suggests this privilege suspended amid a national crisis under article 359.

Article 32 makes the Supreme Court the safeguard and underwriter of the major rights. Further, the capacity to issue writs goes under the original jurisdiction of the Apex Court. This implies an individual may approach SC straightforwardly for a cure as opposed to by appeal.

Article 32 can be used only to get a remedy for fundamental rights enshrined in Article 12-35. It isn’t there for some other legal right for which diverse laws are accessible.

What is WRIT?

A precept in writing, couched in the form of a letter, running in the name of the king, president, or state, issuing from a court of justice, and sealed with its seal, addressed to a sheriff or other officer of the law, or directly to the person whose action the court desires to command, either as the commencement of a suit or other proceeding or as incidental to Its progress, and requiring the performance of a specified act, or giving authority and commission to have it done. For the names and description of various particular writs, see the following titles.

In old English law. An Instrument In the form of a letter; a letter or letters of attorney. This is a very ancient sense of the word.

In the old books, “writ” is used as equivalent to “action;” hence writs are sometimes divided into real, personal, and mixed.

In Scotish law. Writing; an instrument in writing, as a deed, bond, contract, etc.

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Constitutional Philosophy of Writ Jurisdiction

An individual whose privilege (Fundamental Right) is encroached by an arbitrary administrative action may approach the Court for a suitable remedy. Article 32(2) of the Constitution of India gives: “The Supreme Court will have the capacity to issue bearings or requests or writs, incorporating writs in the idea of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever might be suitable, for the requirement of any of rights given by this Part.” Article 32 is a basic Right directly under Part – III of the Constitution. Under this Article, the Supreme Court is enabled to loosen up the customary standard of Locus Standi and permit general society to intrigue case in the name of public interest litigation (PIL).

Comparative Analysis of Article 32 & 226

Article 32 isn’t to be conjured for encroachment of an individual right of the agreement (contract), nor is to be summoned for unsettling questions which are fit for transfer under other laws. Article 226(1) of the Constitution of India, on the other hand says,” Notwithstanding anything in Article 32, every High Court shall have powers, throughout the territories in relation to which it exercise jurisdiction, 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.”

As is obvious from the uncovered dialect, this Article ensures a person to move the High Court for implementation of the fundamental rights and also for implementation of some other lawful right. Article 226 gives wide powers on the High Courts. It fills in as a major repository of legal capacity to control organization. Its capacity under Article 226 can’t be diminished by enactment. In this manner, forces of High Courts gave under Article 226 are more extensive when contrasted with forces presented on the Supreme Court under Article 32 of the Constitution of India.

Types of WRITS

Habeas Corpus:

Meaning: This writ is in the nature of an order calling upon the person who has detained another to produce the latter before the Court, in order to let the Court, know on what ground he has been confined and to set him free if there is no legal justification for the confinement. In Rudul Sah v. State of Bihar added a new dimension to judicial activism and raised a set of vital questions, such as, liability of State to compensate for unlawful detention, feasibility of claiming compensation from the State under Article 32 for wrongful deprivation of fundamental rights, propriety of the Supreme Court passing an order for compensation on a habeas corpus petition for enforcing the right to personal liberty.

The General Principle: The principle on which Habeas Corpus function is that a person illegally detained in confinement without legal proceedings is entitled to seek the remedy of habeas corpus.

Nature of Writs: While deciding whether Habeas Corpus writs are civil or criminal in nature, it was held in Narayan v. Ishwarlal that the court would rely on the way of the procedures in which the locale has been executed.

How a Writ of Habeas Corpus is filed?

An application for habeas corpus can be made by any person on the behalf of the prisoner/detenu as well as the prisoner/detenu himself.

Even a letter to the judge mentioning illegalities committed on prisoners in jail can be admitted. In Sunil Batra v. Delhi Administration., a convict had written a letter to one of the Judges of the Supreme Court alleging inhuman torture to a fellow convict. The late justice Krishna Iyer treated this letter as a petition of habeas corpus and passed appropriate orders.

Courts can also act Suo motu in the interests of justice on any information received by it from any quarter/source.

Habeas Corpus is not issued in certain cases

Where the person who is detained or against whom the writ is issued is not within the jurisdiction of the Court.

To save the release of a person who has been imprisoned by a Court for a criminal charge.

To interfere with a proceeding for contempt by a Court of record or by Parliament.

Implication in Emergency: In the Landmark case of ADM Jabalpur v. Shivakant Shukla which is also known as the Habeas Corpus case, it was held that the writ of Habeas Corpus cannot be suspended even during the emergency (Article 359).

Damages: The Court may also award exemplary damages. In Bhim Singh v. State of Jammu & Kashmir , the Hon’ble Apex Court awarded the exemplary damages of Rs.50,000/- (At that time this was a very significant amount.

Thus, writ of habeas corpus is a bulwark of personal liberty. It has been described as “a great constitutional privilege” or “first security of civil liberty”. The most quintessential element is a speedy and effective remedy.

Notable Cases for Writ of Habeas Corpus:

In Kanu Sanyal v. District Magistrate, while enunciating the real scope of writ of habeas corpus, the Supreme Court opined that while dealing with a petition for writ of habeas corpus,the court may examine the legality of the detention without requiring the person detained to be produced before it.

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

Mandamus

Meaning: “A writ issued by a court to compel performance of a particular act by lower court or a governmental officer or body, to correct a prior action or failure to act.” It is used for enforcement of various rights of the public or to compel the public statutory authorities to discharge their duties and to act within the bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties.

The rule of Locus Standi: is strictly followed in while issuing writ of mandamus. The petitioner has to prove that he has a right to enforce public duty in his favour. The mandamus is “neither a writ of course nor a writ of right but that it will be granted if the duty is in nature of public duty and it especially affects the right of an individual, provided there is no more appropriate remedy.”

The necessary conditions for the issue of the writ of mandamus are:

1. Error of jurisdiction = Lack of jurisdiction/ Excess of jurisdiction. 2. Jurisdictional facts 3. Violation of the principles of natural justice = Principles of Rule against bias and Rule of Audi alterum partem 4. Error of law apparent on the face of record – 5. Abuse of jurisdiction. –

Conditions for Issue of Writ of Mandamus

Their ought to be a legal right of the applicant for the performance of the legal duty.

The nature of the duty must be public. In The Praga Tools Corporation v. C.V. Imanual, and Sohanlal v. Union of India,the Supreme Court stated that mandamus might under certain circumstances lie against a private individual if it is established that he has colluded with a public authority.

On the date of the petition, the right which is sought to be enforced must be subsisting.

The writ of Mandamus is not issued for anticipatory injury. But Anybody who is likely to be affected by the order of a public officer is entitled to bring an application for mandamus if the officer acts in contravention of his statutory duty

Exceptions & Limitations (Mandamus)

In India, mandamus will lie not only against officers who are bound to do a public duty but also against the Government itself as Article 226 and 361 provided that appropriate proceedings may be brought against the Government concerned.

Further, Mandamus will not be granted against the following persons:

The President or the Governor of a State, for the exercise and performance of the powers and duties of his Office or for any act done or purporting to be done by him in the exercise and performance of those powers and duties. In India, it will not lie upon the President and the Governor of a State in their personal capacities.

Mandamus does not lie against a private individual or body whether incorporated or not except where the State is in collusion with such private party, in the matter of contravention of any provision of the Constitution or a Statute or a Statutory Instrument.

It will not lie against the State legislature to prevent from considering enacting a law alleged to be violative of constitutional provisions.

It will not lie against an inferior or ministerial officer who is bound to obey the orders of his superiors.

Inferior Courts: This writ is also available against inferior Courts or other Judicial bodies when they have refused to exercise their jurisdiction and thus to perform their duty.

Alternate Remedy: Mandamus is not refused on the ground that there is an adequate alternative remedy where the petitioner complains that his fundamental right is infringed. In Rashid Ahmad v. Municipal Board , it was held that in relation to Fundamental Rights the availability of alternative remedy cannot be an absolute bar for the issue of writ though the fact may be taken into consideration.

Hence the writ of mandamus is to protect the interest of the public from the powers given to them to affect the rights and liabilities of the people. This writ makes sure that the power or the duties are not misused by the executive or administration and are duly fulfilled. It safeguards the public from the misuse of authority by the administrative bodies. Thus, Writ of Mandamus is a general remedy whenever justice has been denied to any person.

Landmark Cases for Writ of Mandamus

The courts are unwilling to issue writ of mandamus against high dignitaries like the President and the Governors. In the case of S.P. Gupta v. Union of India, judges were of the view that writ cannot be issued against the President of India for fixing the number of judges in High Courts and filling vacancies.

In C.G. Govindan v. State of Gujarat, it was refused by the court to issue the writ of mandamus against the governor to approve the fixation of salaries of the court staff by the Chief Justice of High Court under Article 229. Hence, it is submitted that the Governor or the President means the state or the Union and therefore issuance of mandamus cannot take place.

Prohibition

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

The Purpose: The basic purpose is to secure that the jurisdiction of an inferior court or tribunal is properly exercised and that it does not usurp the jurisdiction which it does not possess. Thus, writ of prohibition is available during the pendency of the proceedings and before the order is made.

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

The writ of prohibition can be issued on the following grounds:

1. Absence or Excess of jurisdiction 2. Violation of the principles of natural justice 3. Unconstitutionality of a Statute 4. Infraction of Fundamental Rights.

Landmark Case Laws for Writ of Prohibition

In the case of East India Commercial Co. Ltd v. Collector of Customs a writ of prohibition was passed directing an inferior Tribunal prohibiting it from continuing with the proceeding on the ground that the proceeding is without or in excess of jurisdiction or in contradiction with the laws of the land, statutes or otherwise.

Also, it was held in the case of Bengal Immunity Co. Ltd , the Supreme Court pointed out that where an inferior tribunal is shown to have seized jurisdiction which does not belong to it than that consideration is irrelevant and the writ of Prohibition has to be issued as a right.

Certiorari

Meaning: The writ of certiorari issued to quash a decision after the decision is taken by a lower tribunal while prohibition is issuable before the proceedings are completed. The law has always been, that a writ of certiorari is issued against the acts or proceedings of a judicial or quasi-judicial body conferred with power to determine question affecting the rights of subjects and obliged to act judicially.

The Purpose: of the writ of certiorari is not only negative in the sense that it is used to quash an action but it contains affirmative action as well. It is preventive as well as curative in nature. The power of judicial review is not restricted where glaring injustice demands affirmative action.

Ways in Which a Writ of Certiorari is Issued?

Certiorari is not issued against purely administrative or ministerial orders and that it can only be issued against judicial or quasi-judicial orders.

1. Either without any jurisdiction or in excess 2. In violation of the principles of Natural Justice. 3. In opposition to the procedure established by law. 4. If there is an error in judgement on the face of it

The conditions necessary for the issue of the writ of certiorari are:

1. Anybody of persons. 2. Having legal authority 3. To determine questions affecting the rights of subjects 4. Having the duty to act judicially. 5. Act in excess of legal authority

The grounds on which the writ of certiorari may be issued are:

1. Error of Jurisdiction Lack of jurisdiction. 2. Excess of jurisdiction. a) Abuse of jurisdiction. b) Error of law apparent on the face of the record. c) Violation of principles of natural justice.

Landmark Cases On Writ of Certiorari

In Naresh S. Mirajkar v. State of Maharashtra , it was said that High Court’s judicial orders are open to being corrected by certiorari and that writ is not available against the High Court.

In the case of T.C. Basappa v. T. Nagappa & Anr., it was held by the constitution bench that certiorari maybe and is generally granted when a court has acted (i) without jurisdiction or (ii) in excess of its jurisdiction.

In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court has explained the meaning, ambit and scope of the writ of Certiorari. It was held that Certiorari is always available against inferior courts and not against equal or higher court.

In A.K. Kripak v. Union of India, it was held that the Supreme Court should issue the writ of certiorari to quash the selection list of the Indian Forest Service on the ground that one of the selected candidates was the ex-officio member of the selection committee.

Quo Warranto

Meaning: The writ of Quo Warranto (by what warrant) is issued to inquire about the legality of a claim by a person or authority to act in a public office, which he or she is not entitled to. The writ of Quo Warranto is a mode of judicial control in the sense that the proceedings review the actions of the administrative authority which appointed the person.

The writ is issued to the person ousting him from holding a public post to which he has no right. It is used to try the civil right to a public post. Accordingly, the use of the writ is made in cases of usurpation of a public office and removal of such usurper. Conversely, it protects citizen from being deprived of public office to which he may have a right. A petition for the writ of Quo Warranto can be filed by any person though he is not an aggrieved person.

The conditions necessary for the issue of a writ of Quo Warranto are:

The office must be public and it must be created by a statute or by the constitution itself. In the case of Jamalpur Arya Samaj v. Dr D. Ram , the writ was denied on the ground that writ of quo warranto cannot lie against an office of a private nature. And also, it is necessary that office must be of substantive character.

The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.

There has been a contravention of the Constitution or a statute or statutory instrument, in appointing such person to that office.

The claim should be asserted on the office by the public servant i.e. respondent.

The court issues the Writ of Quo Warranto in the following cases:

When the public office is in question and it is of a substantive nature. A petition against a private corporation cannot be filed.

The office is created by the State or the Constitution.

Conclusion

In the hands of the Supreme Court PIL in India has taken a multidimensional character. The deep-rooted ill-disposed framework has been given a pass by. With the coming of legal activism, letters, paper reports, dissensions by open lively people, social activity bunches conveying to the notice of the Court in regards to infringement of major rights were managed regarding them as writ petitions and the alleviation of pay was additionally allowed through writ jurisdiction.

Article 32 gave to the subjects are the incredible powers with prompt impact. Furthermore, the writs are generally summoned against the state and are issued when PILs are recorded. The Writ Jurisdictions which are presented by the Constitution, however, have privilege controls and are optional in nature but then they are unbounded in its breaking points. The carefulness, in any case, is practiced on legitimate standards.

Hence, obviously immense forces are vested with the Judiciary to control a managerial activity when it encroaches fundamental privileges of the subjects or when it goes past the soul of Grundnorm of our nation i.e Constitution of India. It guarantees the Rule of Law and appropriate check and equalizations between the three organs of our vote-based framework. The rationality of writs is very much synchronized in our Constitutional arrangements to guarantee that privileges of nationals are not smothered by a self-assertive authoritative or Judicial activity.

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