Introduction:

The maxim that there is no wrong without a remedy does not mean, as is it is
sometimes supposed, that there is a legal remedy for every moral or political
wrong. If this were its meaning it would be manifestly untrue. There is no legal
remedy for the breach of a solemn promise not under seal, nor for many kinds of
verbal slander, though each may involve ruin...The maxim means only that legal
wrong and legal remedy are correlative terms and it would be more intelligibly
and correctly stated, if it were reversed, so as to stand, When there is no legal
remedy, there is no legal wrong.1

The history of the freedom struggle2had made it inevitable that fundamental

rights would be written into the Constitution itself. First Article 13(1) made all
existing laws pro tanto void if they were inconsistent with fundamental rights,
and Article 13 (2)made all the laws enacted by state pro tanto void if they took
away or abridged the fundamental rights. The State and law were defined
very widely by Articles 12 and 13(3) respectively. Articles 32 and 226 provide
effective and speedy remedies for asserting fundamental right and it runs as
follows:

Copy article 32 and 226...

The reason for mentioning five prerogative writs by name in the Article 32 and
Article 226 are not surprising that the Constituent Assembly found in these writs
the most effective of enforcing fundamental rights. The writ of habeas corpus is
the most renowned contribution of the English Common law to the Protection of
the Human Liberty.3 The writs of mandamus, prohibition, certiorari and quo
warranto had proved their effectiveness in compelling the performance of public
duty, in preventing inferior tribunals from going beyond their jurisdiction, in
reviewing orders and conviction of the inferior tribunals, and in inquiring into the
right of a person to hold a public office. Speaking on Article 32 (draft Art. 25) in
the Constituent Assembly, Dr. Ambedkar describes the Article as the very soul of
the Constitution because it provided effective remedies against violation of
fundamental rights- remedies which no legislature could take away. 4

The application of writ and the decision in regards to its failure was observed by
Mukherjee J. In T.C.Bassappa vs. T. Nagappa5 that it was open to our Courts to
issue any appropriate writ to an aggrieved party, and his application for a writ
would not fail because he had applied for the wrong kind of writ.
1 Bradlaugh v. Gosset (1884) 12 Q.B.D. 271 at p. 285

2 Constitutional Law of India A Critical Commentary, H.M.SEERVAI, Fourth

Edition, Vol.2, pg.1449

3 De Smith's Judicial Review of Administrative Action, 4th Edition

4 C.A.D. Vol. II, p . 953

Habeas Corpus:

1)Who can file:

The person illegally detained is entitled to apply for a writ of habeas corpus, but
it is not necessary that it should proceed from him. Any person entitled to
institute proceedings for the purpose of liberating another may apply for the writ.
Where access to the person illegally detained is denied, the application may be
made by any relation or friend.6

Normally the person entitled to apply for habeas corpus would be the person
illegally detained, but if it is not possible for him to make an application, a
relation or a friend may make the application. Accordingly, it has been held that
where it is alleged that a child was illegally detained, a person entitled to move
for Habeas Corpus was the person entitled to her custody or to represent her
legally. Where such a person did not exist or was not capable of making an
application, a friend might apply, stating that no person and entitled to make an
application existed or could make an application for the reasons stated in the
affidavit and, secondly that the person applying was interested in childs welfare.
On the fact of the case it was held that the applicant was not interested in childs
welfare and in fact the applicants interest appeared to be in conflict well being
of the child who was and subsequently rescued from a brothel and subsequently
detained in a rescue home.7

2) Habeas Corpus against Whom:

Section 491 (1) (b) Cr.P.C. (omitted in 1973) embodies the principle of English law
that habeas corpus is available against illegal detention by a public authority or a
private person. However in Smt Vidya Varma vs. Dr. Shiv Narayan Varma 8 the
Supreme Court held that no question of infringement of any fundamental right
under Article 21 arose, and a petition under Article 32 did not lie where the
detention complained of was by a private person and not by or under the
authority or orders of State. It is further stated that such an application for the
infringement of any fundamental right would lie under Article 226 and u/s 491 of
Cr.P.C before the High Courts and the High Courts can issue the Writ of habeas

5 (1955) 1 S.C.R. 250, 256

6 Halsbury, Vol. 11, (3rd ed.) p.37.

7 Raj Bahadur v. Legal Remembrancer (1953) AIR Cal. 522

8 (1995) 2 S.C.R. 983

corpus, or directions in the nature of habeas corpus, against illegal detention by
private persons.

3) Object of Habeas Corpus

The broad principles which govern the writ of habeas corpus in England have
applied in India. In Kedar Nath vs. Punjab 9, the court cited with approval of Lord
Herschells Observation in Gossages 10 and held that apart from custody cases,
the writ of habeas corpus was a writ for determining the legality or illegality of
detention and not for punishing the person for a past offence, where a person
was arrested for an alleged theft and ill-treated but released, a petition for writ of
habeas corpus became infructuous.

The Honble Supreme Court in Naranjan Singh v. Punjab 11, held that, Once it is
conceded that in habeas corpus proceedings the court is to have regard to the
legality or otherwise of the detention at the time of the return and not with
reference to the date of the institution of the proceeding, it is difficult to hold, in
the absence of proof of bad faith, that the detaining authority cannot supersede
an earlier order of detention challenged as illegal and make a fresh order
wherever possible which is free from defects and duly complies with the
requirements of the law in that behalf.

The decision of Naranjan (supra) was followed in Ram Narayan Singh v. Delhi 12
and B.R.Rao v. Orrisa13. In Dealing with Gopalan vs. Govt. 14 Wanchoo J. Said:

It is well settled that in dealing with the petition for habeas corpus the court has
to see whether the detention on the date on which the application is made to the
court is legal, if nothing more has intervened between the date of the application
and the date of hearing.

In Talib Hussain v. J & K15 it was held that, In regards to the submission that the
petitioner was arrested and deprived of his personal liberty long before the order
of his arrest and this invalidated his detention, it is sufficient to point out that in

9 (1960) Punj. 162

10 Barnardo vs Ford: Gossages Case (1892) A.C. 326, 339

11 (1952) S.C.R. 395, p.400, p.401.

12 (1953) AIR SC 277

13 (1971) AIR SC 2197

14 (1966) 2 S.C.R. 427

15 (1971) AIR SC 62
habeas corpus proceedings the Court has to consider the legality of the
detention on the date of hearing. If on the date of hearing it cannot be said that
the aggrieved party has been wrongfully deprived of his personal liberty, and his
detention is contrary to law, a writ of habeas corpus cannot issue.

In re Prahlad Krishna kurane16 the Bombay High Court held the view regarding
successive application for writ of Habeas Corpus and that that, and held that the
article 226 restored to the high court the power to issue the common law writ of
habeas Corpus, the power was entrusted to the high Court and where a judge or
a bench of the high court exercised that power, the order dismissing the
application was the order of the whole Court, and no further application could be
entertained by that Court. The court observed that this result caused no hardship
because the petitioner had an independent right to approach the Supreme Court
under article 32 and also by the special leave under article 136.

QUO WARRANTO

An information in the nature of a quo warranto took the place of the obsolete
writ of quo warranto which lay against a person who claimed or usurped an
office, franchise, or liberty, to inquire by what authority he supported his claim,
in order that the right to the office or franchise might be determined. It also lay
in cases of non-user, abuse, or long neglect of a franchise.

Originally, the writ of quo warranto was a writ of right for the King against the
subject who claimed or usurped any office, franchise or liberty, to inquire by
what authority he supported his claim, in order to determine the right.

The House of Lords adopted the opinion delivered by Tindal C.J. who said:

After the consideration of all the cases and dicta on the subject, the result
appears to be, that this proceeding by information in the nature of quo warranto
will lie for usurping the office, whether created by charter alone, or by the Crown,
with the consent of Parliament, Provided the office be of Pubic Nature and a
substantive office, not merely the function or employment of a deputy or servant
held at the will and pleasure of others

Lord Reading C.J. held that :

16 (1951) AIR BOMBAY 25 (F.B.)

Whereas formerly a quo warranto was held to lie only where there was an
usurpation of a prerogative of the Crown or of a right of franchise, a proceeding
by information in the nature of quo warranto has long since been extended
beyond that limit and is remedy available to the discretion of the Court to refuse
or grant it. From so acting and might (if the case required) declare the office to
be vacant.

Pg.1481

Decided cases so that the description of the writ of quo warranto given
in hillsboro has been frequently affected with approval in University of
Mysore what is Govinda Rao the supreme court quoted the following passage
from albury from husband information in the nature of quo warranto took the
place of obsolete writ of quo warranto which play against a person who claimed
or acid an office, friend on liberty, enquire why water authority buy water
authority is supported he supported hip clean his claim, in order that the right to
the office are franchise might be determined and observed inverted,s the
procedure of covalent the procedure of warrant kalpa jurisdiction and authority
on the Judiciary to control executive action in the matter of making appointment
to public offices again the relevant statutory provisions it also protects uS citizen
from being deprived of public office to which he might have a ride right full stop
it would that be seen that is this proceedings are adopted subject to the
conditions recognise in that Bihar, to protect the public from a surprise of public
office in some cases, persons not entitled to public office may be allowed to
occupy them and to continue to hold them as a result orphan events of the
executive or with its active health, such cases, of the court to issue writ of quo
warranto is properly in walk, invoke, the surfer can be Austin and the public and
the person and titled to the post allowed to occupied it is thus clear that before a
citizen can claim writ of quo warranto, in findacode, that the opposite question
the office in question is a public office and is held by a circle without legal
authority, this really need to enquiry as to whether the appointment of alistair
circuit has been made in accordance with law or not

Applicant writ of quo warranto can ask the court to examine whether a
person holding public office has been married Lee appointed under
charter croma the applicant will to Chalun validity not be permitted to
challenge validity of the charter and information in the nature of War
warranto warrant would not have been permitted for the purpose of
attacking the literacy of the charter of incorporation granted to what
town through an officer appointed surrender accordingly and
information calling upon the defendant to show by what authority you
claim to be Corona of Varun on the ground that the burrow Charter had
not been properly granted was refused
Is GD kar kare appointment of advocate general was challenged on the
ground that under the constitution only person qualified to be
appointed as a judge of High Court could be appointed it was over 60
years of the age he was not qualified to be appointed have an advocate
general the advocate general is appointed by google office during his
pleasure article 155 it was held that the Governor was not accountable
for his actions to the court writ of quo warranto operated on the holder
of the office which was a high public office and following Spears case it
was said that it was respectful to assume that was there was declared
by the court the Governor would not let it bother any person of the year
because of an advocate general was a high public office of the public
acting in good faith former who conduct did not get an title hymn to
relieve hymn to relieve could apply for writ of quo warranto without
erasing the violation of any specific legal right full stop stranger pink
banner 3D,

If a stranger acting bola feed a acting bonafide can apply for writ of quo
warranto of oratory person having the special interest in the office
would be entitled to do so dot dot dot consequently the petitioner are
registered graduate at sufficient interest to indicate a candidate at the
election

Although any member of the public acting in good faith can apply for a
writ of quo warranto the remedy is discretionary and the court will be
related person to apply for the writ accordingly that will not be granted
a person who was candidate in election and who did not object to the
nomination of another reached at the electric Wizard in the very act of
which we can is application the remedy is discretionary it may be used
on the ground delay especially if search delete wood Randa the grant of
writ partially futile that's where the election of a municipal corporation
first 10 months after the election and when only a few hours left before
he would like it is the quote that used to grant array although and
alternative remedy does the jurisdiction of the core the ready refused if
the alternative remedy is equally effective 2016 15651 that's where
thus where section 51 madras district municipalities act act provided
am machinery for deciding disputes arising out of halogens
disqualification of any number who had office and the applicant had
failed to have erased ansals of that remedy a ready to go on and dog
was refused array a read read wr ID mantle

Writ of quo warranto is issued to prevent a continued exercise of

unlawful authority and it cannot be used to call still order did how to
indicate Private Ryan