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INSTITUTE OF LAW
Submitted By:
Submitted To:
Prof. Tarkesh
interlocutory
reliefs.
Although
threat
of
infringement
of
Fundamental right is enough to justify the issue of writ 2. A writ under the
said Article 32 would not lie to enforce the Government policy 3 or a
Directive Principle4. Also provisions of this Article does not work
retrospectively5
Clause 4 , lays down that this right shall not be suspended except as
otherwise provided for by the Constitution.
However, a writ may lie under Article 226 of the Constitution of India to
the High Courts. The Writ Jurisdiction of Supreme Court can be invoked
1
2
3
4
5
itself
is
amended
by
means
left
open
to
the
Thus for the same reason, in the case of Kihota v. Zachilhu7 Supreme
Court held it as a basic feature of the Constitution of India, and hence
beyond the plae of ameandibility.
However, the Court will not entertain any application under Article 32
unless the matter falls within the scope of any of the fundamental rights
guaranteed in Part III of the Constitution.
As the guardian of fundamental rights the Supreme Court has two types
of jurisdiction, original and appellate. Under its original jurisdiction, any
person who complains that his fundamental rights have been violated
within the territory of India may move the Supreme Court seeking an
appropriate remedy. The fact that he may have a remedy in any of the
High Courts does not preclude him from going directly to the Supreme
Court. Unless a question of violation of Fundamental Rights are involved,
it does not apply.
We have already seen under Article 32(4) that the Right to Constitutional
Remedies
may
be
suspended
under
certain
circumstances.
These
Until 1976 the Supreme Court had power to consider the constitutional
validity of any State law in any proceedings initiated under Article 32. But
this power was taken away by the Forty-second Amendment (1976).
As a result the Supreme Court could consider the constitutional validity of
any State law only if the constitutional validity of any Central law was also
an issue in such proceedings. The Forty-third Amendment (1978) however
has restored the original position
However, Article 32 is referred to as the "Constitutional Remedy" for
enforcement of Fundamental Rights. This provision itself has been
included in the Fundamental Rights and hence it cannot be denied to any
person. Dr. B.R.Ambedkar described Article 32 as the most important one,
without which the Constitution would be reduced to nullity. It is also
referred to as the heart and soul of the Constitution. By including Article
32 in the Fundamental Rights, the Supreme Court has been made the
protector and guarantor of these Rights. An application made under Article
32 of the Constitution before the Supreme Court, cannot be refused on
technical grounds.
In addition to the prescribed five types of writs, the Supreme Court may
pass any other appropriate order. Moreover, only the questions pertaining
to the Fundamental Rights can be determined in proceedings against
Article 32. Under Article 32, the Supreme Court may issue a Writ against
any person or government within the territory of India. Where the
infringement of a Fundamental Right has been established, the Supreme
Court cannot refuse relief on the ground that the aggrieved person may
have remedy before some other court or under the ordinary law.
The Jurisdictions of Supreme Court under Article 32 of the Constitution of
India and of different High Courts in India under Article 226 of
Constitution are original in nature and writ Petition directly lies to
This extraordinary jurisdiction was exercised by the Supreme Court for the
enforcement of fundamental rights, in its jurisdiction under Article 32,
where two Law Professors addressed a letter to the Supreme Court
complaining that the fundamental rights of the inmates of the Protective
Home under Article 21 were being violated by the Government Home.
In Gupta's case10 where Upendra's case11 was referred to, the doctrine of
public interest litigation was formulated by a Bench of 7 Judges in a
comprehensive form, to apply to any case of public injury arising from
the breach of any public duty, or the violation of some provision of the
Constitution, or of the law
Though the doctrine was initially applied by the Supreme Court to enforce
fundamental rights under Article 32, it soon came to be applied by the
High Courts, in their jurisdiction under Article 226, not only to enforce
fundamental rights but also to restrain the Executive from undermining
the public interest. As the Government is encouraging sports, grant of
lease of land for that purpose even at concessional rates cannot be said to
be not to sub-serve the public purpose.
The power of the court is not only preventing the infringement of
Fundamental Right, but is also remedial in scope and provides relief
against breach of Fundamental Right already committed. 12 The Court may
grant both compensation and exemplary cos tin various cases, directing
the state to pay the same in some cases where there is infringement of
Fundamental Rights13
The Supreme Court under Article 32(1) is free to devise any procedure
appropriate for the particular purpose of the proceeding, namely,
10
11
12
13
enforcement of a Fundamental Right and under article 32(2) the court has
the implicit power to issue whatever directions, order or writs is necessary
in a given case, including all ancillary powers necessary to secure
enforcement of Fundamental Rights.
Under the doctrine of Judicial review, High Courts and the Apex Courts
exercise a supervisory jurisdiction over persons who are charged with the
performance of public acts and duties. What is generally reviewed is is not
the merits of the action but the decision making process itself. Thus
administrative action is subject to judicial review on three grounds:
illegality
irrationality
procesual impropriety14
Judicial Review is not concerned with the matters of economic policy.15 The
court
will
not
interfere
with
an
administrative
order
when
it
is
14
15
16
17
Supreme Court Advocates -on Record Association v. UOI, AIR 1994 SC 268
Shri Sitaram Sugar Co. Ltd. V UOI, AIR 1990 SC 1277
R. Gandhi v. UOI (1999) 8 SCC 106
Bennett Colemann & co. v. UOI, AIR 1973 SC 106
Writs
The Supreme Court under Article 32 and the High Courts under Article 226
are vested with the powers to issue directions, orders or writs in the
nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, which ever may be appropriate in the case. A brief explanation
of these remedies is appropriate here.
(i)Writ of Certiorari:
The term of the old writ was that of a royal demand to be informed
(certiorari) of some matter, and in early times it was used for many
different purposes. It became a general remedy to bring up for review in
the court of Kings Bench any decision or order of an inferior tribunal or
administrative body. In the modern times the scope of certiorari was laid
down in the Electricity Commissioner's case by Lord Atkin which is
classical and approved in many English and Indian decisions. Lord Atkin
said:
Wherever any body of persons having legal authority to determine
questions affecting the rights of subjects and having the duty to act
judicially, act in excess of their legal authority, they are subjected to the
controlling jurisdiction of the Kings Bench Division exercised in these
writs.
According to the above statement the conditions are:
18
19
20
21
writ
of
mandamus
is
issued
against
any
court,
tribunal
or
order issued by the High Court calling upon the person by whom a
prisoner is alleged to be kept in confinement to bring him before the Court
to let the Court know on what ground the prisoner is confined. However,
the production of the body of the person alleged to be unlawfully detained
is not essential in modern times.29
The rule of standing is relaxed in habeas corpus petition which can be
made by any person on behalf of the prisoners but not an utter stranger.
Application for habeas corpus has to be accompanied by an affidavit
stating the nature and circumstances of the restraint. If the court is
satisfied that there is prima facie case, it issues a rule nisi requiring the
opposite party to show cause, on a day specified, why an order granting
the writ should not be made. After hearing the parties, the court may
make the rule absolute or it may discharge it as the case may be.
The writ of habeas corpus has assumed great importance in the
administrative process as wide powers of detention are conferred on the
administrative authorities in the modern times. The fundamental right to
personal liberty as a human right has further enhanced the importance of
this remedy. The grounds of habeas corpus are the same grounds of
judicial review based on ultra vires doctrine. So if the detention powers
are used mala fide or based on irrelevant or extraneous considerations or
are used in violation of statutory provisions, the writ of habeas corpus will
issue to quash such a detention. There is no need for a separate certiorari.
The writ of habeas corpus is issued against any order of detention by any
authority including the Speaker of Parliament or State Assemblies 30.
However, no writ of habeas corpus will lie in regard to a person who is
undergoing imprisonment on a sentence of a court in a criminal trial even
on the ground of erroneousness of conviction31.
29 Kanu Sanyal v. D.M Darjelling A.I.R 1973 SC 2684
30 Ganpati v. Masi Nafisul Hasan A.I.R 1954 SC 636
31 (1984) 4SCC 251.
prevailing
in
England
where
detention
conditions
cannot
be
The writ of quo warranto is issued against the holder of a public office
calling upon him to show with what authority he holds that office. It is
issued against the usurper of an office.
The object is to confer jurisdiction upon the judiciary to control the
executive action in making appointments to public offices and also to
protect the public from usurpers of public offices.
The law of standing is relaxed so that any member of the public can
challenge the action by this writ.
32 B.K Basu v. State of West Bengal A.I.R 1997 SC 610, Vishakha v. State of Rajasthan 1997 SC 3011
writs in the nature of' should be understood. The courts have been very
liberal in this regard. It is the duty of the court to provide appropriate
remedy to the petitioner. A petition will not be thrown out on procedural
and technical defects. However, broad principles must be followed. Apart
from these writs, the court can issue any directions or orders to
supplement the writs, for examples, declaratory orders or injunctions in
the same petitions. In fact declaratory orders are the appropriate remedy
for setting aside an ultra vires rule or legislative measure and not the writ
of certiorari which is appropriate for quashing a determination or decision
of a body or authority. In Prabodh Verma v. State of U.P., the Supreme
Court deprecated the slipshod drafting of a writ petition asking for
certiorari to quash a legislative measure. Proper pleading rules must be
followed since ill-drafted pleading results in wastage of precious time of
the court.
The power of issuing directions or orders is frequently used to provide
relief to the parties and monitor the implementation of the decision of the
court.
Articles 32 and 226 are the provisions of the Constitution that together
provide an effective guarantee that every person has a fundamental right
of access to courts. Article 32 confers power on the Supreme Court to
enforce the fundamental rights. It provides a guaranteed, quick and
summary remedy for enforcing the Fundamental Rights because a person
can go straight to the Supreme Court without having to go undergo the
dilatory process of proceeding from the lower to higher court as he has to
do in other ordinary litigation. The Supreme Court is thus constitution the
protector and guarantor of the fundamental rights.
Thus The High courts have a parallel power under Article 226 to enforce
the fundamental rights. Article 226 differs from Article 32 in that whereas
Article 32 can be invoked only for the enforcement of Fundamental Rights,
Article 226 can be invoked not only for the enforcement of Fundamental
Rights but for any other purpose as well. This means that the Supreme
Courts power under Article 32 is restricted as compared with the power of
a High Court under Article 226, for, if an administrative action does not
affect a Fundamental Right, then it can be challenged only in the High
Court under Article 226, and not in the Supreme Court under Article 32.
Another corollary to this difference is that a PIL (Public Interest Litigation)
writ petition can be filed in Supreme Court under Article 32 only if a
question concerning the enforcement of a fundamental right is involved.
Under Article 226, a writ petition can be filed in a High court whether or
not a Fundamental Right is involved.
The provision of legal aid is fundamental to promoting access to courts.
The Supreme Court of India has taken imaginative measures to promote
access
to
justice
when
people
would
otherwise
be
denied
their
fundamental rights. It has done this by the twin strategy of loosening the
traditional rules of locus standi, and relaxing procedural rules in such
cases. Thus where it receives a letter addressed to it by an individual
acting pro bono publico, it may treat the letter as a writ initiating legal
proceedings. In appropriate cases it has appointed commissioners or
expert
bodies
to
undertake
fact-finding
investigations.
Thus,
the
Article 32 and Article 226 both deal with enforcement of right of the
citizen against the Government or Governmental Authorities. However, the
scope of Article 32 is limited to the extent of enforcement of the
fundamental rights stated in the Part III of the Constitution, whereas the
scope of Article 226 of the Constitution is much wider than Article 32 of
the Constitution. The High Court while exercising the Article 226 can give
reliefs in case of quasi-Judicial Tribunals and authorities or other acts by
such lower authorities even though the acts of such authorities do not
infringe the fundamental rights.
The Supreme Court is competent to give relief under Article 32 against
any authority within the territory of India. The power of High Court under
Article 226 is confined to its territorial Jurisdiction, so that even where
fundamental rights have been infringed, the High Court cannot grant
reliefs against an authority located outside its territorial jurisdiction except
in certain exceptional cases, namely where the causes of action arises, in
whole or in part, within territorial jurisdiction of that Court. However, a
writ against Union of India can be filed in any High Court in India.
Amplitude
of
Supreme
Court's
jurisdiction
under
Article
32
The powers given to the Supreme Court under Article 32, for the
enforcement of fundamental rights, are not confined to issuing prerogative
writs only, and are not necessarily circumscribed by the conditions which
limit the exercise of the prerogative writs. The said Article is wide enough
to consider even claims for compensation arising from the violation of
fundamental rights. The range of judicial review recognised in the superior
judiciary of India is, perhaps, the widest and the most extensive known to
the world of law. The power extends to the examining the validity to even
an amendment to the Constitution. No Constitution amendment can be
sustained which violates the basic structure of the Constitution.
Who may apply under Article 32
Any person who complains of infraction of any of the fundamental rights
guaranteed by the Constitution is at liberty to move the Supreme Court,