By Nirupam Deo
Published On August 26, 2021 12:35 IST
The central drafter of the Constitution, Dr. B.R. Ambedkar among every Article was asked to point out one Article which will fulfil the objective of the creation of the Constitution and he retorted with Article 32, The Legal Remedies.
Legal Remedies were called “Heart and Soul of the Constitution” by none other than Dr. B.R. Ambedkar . For it was the only Article which will necessitate for the Constitution to fulfill its responsibilities and will protect the rights of its people so the Justice can Prevail
Many different kinds of Remedies are available to the people of India. All of them issue commands of a particular kind. Most of them relate to judicial and quasi-judicial bodies and are taken in case any violation of Fundamental Rights occur.
A person has the right to move to Supreme Court or High Court if his Rights are violated owing to this Section. The individual can move on to Supreme Court without any hassle for the duration of his Rights.
This Article also delegates the Supreme Court as the Supreme guardian of Fundamental Rights therefore it becomes the responsibility of the Supreme Court to make sure the Rights of people are not violated in any given circumstance.
What are fundamental rights?
Fundamental Rights are the basic rights given to every human being irrespective of their background. These can be compared to the Human Rights given internationally. Fundamental Rights are stated in Part 3 of the Constitution of India extending from Articles 12 to 35. The Remedies can be sought out only for the violation of these Fundamental Rights and not in case of violation of Legal Rights.
What are the remedies if fundamental rights are infringed?
The Remedies are infused with the help of Writs. Writs are various sets of commandments enshrined in Article 32 of the Constitution of India. They are the Precepts giving Power to the Remedies sought exactly how they can be inaugurated under what circumstances.
These written forms of commandments are backed by Supreme Authority and proclaim order.
Legal Remedies and their interpretation
Article 32(2) clearly states “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 adequate, for the requirement of any of rights given by this Part.”
This Article defines the extent of all the different types of Writs that can be issued by the Supreme Court of India.
The High Court yet has wider scopes for the implementation of Writs as given by Article 226(1) it says “Notwithstanding anything in Article 32, every High Court shall have Powers, throughout the regions about which it exerts Jurisdiction, to hand out to any person or council, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs like 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.”
The Article thoroughly instils the High Court to Adjudicate in the courses of infringement of Fundamental Rights.
What are Writs?
There are various Legal Remedies commonly known as “Writs” which confers the remedies in case the Fundamental Rights of people are violated in any way. There are various Legal Remedies with each having its specific functions, they are:
This writ in a literal sense asks the question ” on what authority” it asks the individual does he have the authority to perform the actions which it is currently performing or is beyond its area of Jurisdiction.
The writ will oust the person out of the office they hold if it’s ultra vires and they are not entitled to the office. The usage of Quo Warranto is in case of usurpation of a public office and when this usurper needs to be removed. This writ can be appealed to by anyone.
The claims of Quo Warranto should be ascertained against a Public Servant. The Office must be substantive for the order to take effect.
It is used to challenge the people holding seats of high Power, like Mayors, Politicians, Attorney Generals, etc. It is a prerogative writ that is used to embark whether a person who is holding a seat of Power is entitled to it.
Quo Warranto was created as a means for the kings to determine whether a person holding it is eligible for the seat or is usurping it. The King had the Power to remove people found guilty in such cases. But it remained as a Civil Law back then while through the discourses of time Quo Warranto has become a Criminal Law and the perpetrators can be punished.
- The person holding an office should be justified to keep it – The University of Mysore Vs C D Govinda Rao[i]
In this case, the appellant sued Mr CD Govinda Rao for holding the position of Research Reader in a college in Bangalore. The High Court favoured the defendant but the Supreme Court believed that the person holding an office should be justified to keep it.
The Supreme Court gave rise to the role of Quo Warranto and wrote down:
“Considerably stated, the quo warranto proceeding affords a Judicial Remedy by which any person, who holds an independent substantive public office or franchise or liberty, is called upon to show by what right he holds the said office, franchise or liberty, so that his title to it may be duly determined, and in case the finding is that the holder of the office has no title, he would be ousted from that office by judicial order.”
Thus, Quo Warranto is a method used to counteract the Executives’ abuse of power and favouring their people to seats of Power. The Judiciary can intervene in such cases and remove the Person holding such a seat of Power. Thus the people nominated to a seat can be removed if it was entirely done as a result of acquiescence or apathy.
This Judgement laid down two basic postulates for Quo Warranto to come into effect:
- The post in issue should be an autonomous substantive public office.
- It should be clasped by an individual illegally.
- An appeal was made for the removal of the Chief Minister of Andhra Pradesh for non-performance of his Constitutional duties – Dr. Y.S. Rajasekara Reddy Vs Nara Chandra Babu Naidu[ii]
The Court in this case believed that the Writ of Quo Warranto cannot be used against Legislative bodies which are elected as a result of direct votes by the people on the question of mismanagement or non-performance of his duties. The people cannot use the Court to get their ends meet through political parties.
It is furthermore a well-recognized tenet that where one delinquency to execute an obligation he is enjoined to accomplish by law, the complaint can be remedied by allocation of applicable Writ and cannot be remedied by quo warranto.
The Court made it clear that other writs like Mandamus can be issued in such a case but Quo Warranto is only to be used under special circumstances.
- Jamalpur Arya Samaj Vs Dr D. Ram[iii]
In this case, the courts believed,
“The Office must be created by the State or the Constitution. The office must be Public and not Private.”
This Writ is held in high esteem. Nicknames like “bulwark of personal liberty”, “a great constitutional privilege” or “first security of civil liberty” clearly makes the impression. In a literal sense, it means “produce the body” which connotes the very fact that a person cannot be punished without hearing his side.
It is in relegation with the maxim “Audi alteram partem” which means hear the other party. It is in construction with the principle of Natural Justice and is in the favor of hearing before the decision of a trial.
It asks the question that on what grounds has the person is being confined and if he is confined wrongfully then he must be taken out of the judicial custody. The principle on which the Habeas Corpus function is that a person illegally detained in confinement without legal proceedings is entitled to seek the remedy of habeas corpus.
Habeas Corpus can be initiated by the prisoner or any person on their behalf. If the prisoner is treated unfairly in custody, then also, they can vitiate Habeas Corpus against the torture. Courts can initiate the writ in their cognizance of any information.
There are certain conditions when Habeas Corpus cannot be initiated. They are when the High Court is exercising powers which is Ultra Vires to the scope of its Jurisdiction. When the Prisoner has made a Contempt of Court or when he is confined as Punishment for a Criminal Charge.
This Writ is used in every case where there are accusations of Unlawful Detention and Violation of Personal Liberty. The writ requires the person who is detained to be produced before the Court. The Court then must ascertain whether the person in question must be set free or not upon hearing his point of view and evaluating other Justifications.
The burden of Proof rests with the detainee and they must prove it beyond doubt that the person detained in the case is indeed guilty or he must be released.
In the case of filing Writs, it’s mostly accepted that the aggrieved person must file the Writ Petition but in the case of filing Habeas Corpus, any relative or friend affected can file this petition.
The few conditions under which the Petition can be filed are as follows:
- The person in the question is detained and is not produced before the Magistrate within 24 hours.
- The person is detained for an Unconstitutional Law.
- The person is detained without any infringement of Law done by him.
- The Person detained in the case is done so with malafide intention and with the vigour to cause harm.
- Kanu Sanyal Vs District Magistrate[iv]
It was held that the Judge can do the investigation without actually presenting the Prisoner in the Court.
It was held that the Writs cannot be suspended under any condition. Not even under the Emergency Article 359
- Ranjit Vs Pepsu[vi]
The Court in this case was of opinion that Habeas Corpus is indeed monumental at determining the Rights of People’s Liberty.
- Bissewar Roy Vs Emperor[vii]
It was held in this case that the High Court is eligible to issue the Writ of Habeas Corpus for illegal detention made by any Executive.
- AK. Gopalan Vs Government of India[viii]
Gopalan, a Communist Leader was detained in Madras prison under the Preventative Detention Act, 1950. He was of the view that it was a breach of his Fundamental Rights under articles 19, 20 and 21. But the Courts at that time believed that Gopalan had been detained under the procedure established by the law. The court was of the view that these Articles are to be dealt with separately and not together.
In this case, the Courts for the first time declared that the Petitioner needs not to be the person aggrieved but anyone be it family or friend can appeal for the said Writ.
In this case, for the first time, the Courts made out the connection between Articles 14, 19 and 21. They were of the view that Article 21 cannot operate alone without the interpretation of Articles 14 and 19 as well. It was also of the view that personal freedom cannot be curbed by the reasons like “to enable Law”. It said that Law should be just, fair, and reasonable.
Prohibition is a Preventive Petition claiming the Court assigned to be performing powers which are Ultra Vires to it and asking it to stop dealing with the case at once. This order is always issued by a higher court against a proceeding going out in the lower court.
The principle dealt with is “prevention is better than cure” and it strives to stop the ongoing proceedings at once. It is issued when the given party is Adjudicating a matter in which there is either excess or absence of Judication.
It can be issued when the Rights of a party is violated or the Statute is unconstitutional or is in violation of the Principles of Natural Justice.
The spectrum of a Writ of Prohibition is slimmer than that of a Writ of Habeas Corpus or even Mandamus. A Writ of Prohibition can only be handed out to a Judicial body, and not to administrative bodies.
To explore a bit deeper into the spectrum of this Writ, this Writ is imposed both when there is an excess of Jurisdiction and when there is a dearth of Jurisdiction. Plop barely, the Writ is relevant when the Courts infringe their Jurisdiction and where the Courts have no jurisdiction at all.
- East India Commercial Co. Ltd Vs Collector of Customs, 1962 AIR 1893, 1963 SCR (3) 338[xi]
It was held in the case that a mandate for Prohibition can be performed when the lower Court exercises either excess or absence of Jurisdiction.
- Hari Vishnu Kamath Vs Syed Ahmad Ishaque[xii]
In this case for the first time distinction between Writs Prohibition and Certiorari was drawn in India.
- S Govinda Menon Vs Union of India[xiii]
Govinda Menon was a member of the Indian Administrative Service. The Government had begun austere investigations on him. After a languished petition by Menon, the Government handed out a show-cause heed to Menon after an investigation was conducted by a retired I.C.S. officer. Menon thereafter pleaded for a writ of prohibition to stop the Government from proceeding on the show-cause report.
Over the procedure of the proceedings, the Court substantiated the cases where a Writ of Prohibition can be issued:
“The Jurisdiction for authorization of a Writ of prohibition is largely supervisory and the issue of that Writ is to deter Courts or inferior Tribunals from practicing a Jurisdiction which they do not contain at all or else to stave off them from outperforming the thresholds of their Jurisdiction. In other words, the subject is to constrain Courts or Tribunals of inferior or limited Jurisdiction within their rims.”
The Courts laid down such provision for the Writ of Prohibition to accentuate in the case:
- Excess of Jurisdiction
- Absence of Jurisdiction
- Withdrawal from any rules of Natural Justice
Certiorari is a Curative petition which is used to counter the Adjudication of the lower Court. It quashes the decision of the lower court because of the Ultra Vires or Infra Vires nature of the Act. It can be implemented only on Judicial or Quasi-Judicial bodies.
It has similar provisions to Prohibition appeal and arises under the circumstance of exercise of excess or absence of Jurisdiction. It is also enforceable if there were errors in the judgement of a lower court or if it was violative to the Principles of Natural Justice or in Opposition to Procedure established by Law.
How Writ of Certiorari strays from Prohibition is in that a Writ of Certiorari is pleaded for after the Court has declared its judgment in a specific Case.
The Writ of Certiorari must not be conflated with a plea. A writ of certiorari will not topple any outcomes of proof by the party against which the Writ is handed out; that, Courts have ruled, would debase the Legislature’s objective and strategy. Certiorari is used to correct omissions of Jurisdiction of Courts.
- Surya Dev Rai Vs Ram Chander Rai & Ors.[xiv]
It was held by the Court that the Certiorari can only be exercised on Lower Courts and not on Courts with Equal Power.
- Naresh S. Mirajkar Vs the State of Maharashtra[xv]
It was held by the Court that Certiorari cannot be exercised against decisions of High Courts.
- Hari Vishnu Kamath Vs Syed Ahmad Ishaque[xvi]
The principles laid down in the following case were:
- A Tribunal/Court functions without Jurisdiction, over it, or fails to exert it.
- The Court does not authorize the groups to be listened to or oversteps the doctrines of Natural Justice.
- There is a mistake of Law on the face of the Judgement.
- Nagendra Nath Bora Vs Commissioner of Hills[xvii]
The principles governing the Writ of Certiorari was placed down in the case and it was made loud and clear that mere formal and technical error won’t be considered for appealing the case of Certiorari.
Mandamus is an Order directing a Public Officer to do the work he’s assigned for in case he is flaking his responsibilities. This Writ compels the person to do his job, the writ can only be pointed at Public Authorities.
This Writ comes into action if the said officer is abusing their Powers or are not performing their responsibilities. The Order is aimed at not imposing Rights but the Duties of a Public individual. The one they are avoiding.
The Petitioner has to prove in the Court of Law that his grievance is justified. Mandamus is not only limited to Public Officers but it can be taken as a relief against the Government itself.
Mandamus cannot be taken against a Private Officer, an Officer of Lower Stature who is bound by the rules of his Superiors, against State Legislature and the Governor and President of India.
An Alternate solution could be taken to a Problem. Mandamus is a solution to the public at large against the corrupt officials which can be used anytime against them which comes as a huge relief to the people.
- S.P. Gupta Vs Union of India[xviii]
It was held that the Jurisdiction of Mandamus does not extend to asking President to perform the duty of filling the Judges in Supreme Court
- C.G. Govindan Vs the State of Gujarat[xix]
It was held that the Power cannot be used to compel Governor to increase the salaries of the Chief Justice and other Judges of the High Court.
- S. P. Gupta Vs President of India[xx]
In this case, Chief Justice Bhagwati, dissertation for the preponderance, expanded a few anomalies to the contrarily stringent Laws of who can plead for a Writ of Mandamus. Two of them correlate to the prominence of taxpayers to local administrations to question illegal activities and mishandling of reserves by said councils.
In the first locale, a ratepayer of a local council is accorded standing to question an illicit activity of the regional council. Thus, a ratepayer can question the effort of the Municipality in bestowing a cinema license to a person, vide: K.R. Shenoy Vs Udipi Municipality. Furthermore, the liberty of a taxpayer to question the misuse of reserves by a Municipality has also been recognized by the Courts vide: Varadarajan Vs Salem Municipality.
Besides, the Court also held that in cases of marginalized denizens, another individual can file a plea for them.
But it must now be heeded as a Fundamental Law where an individual who has endured Legal harm or Legal Right is overstepped, is incapable to move toward the Court on account of some disability or it is not feasible for him to stride the Court for some other adequate explanations, such as his socially or economically deprived stance, some other individual can conjure the service of the Court to furnish Judicial relief to the individual wronged or injured so that the Legal wrong or injury caused to such person does not go unredressed and Justice is done to him.
- Vemula Prabhakar Vs Land Acquisition Officer[xxi]
In this Lawsuit, a three-judge bench of the Andhra High Court held that in the circumstance that a remedy is accessible under the Code of Civil Procedure, a Court cannot fascinate a Writ of Mandamus.
The Judges said “In this impression of the course, we believe that it cannot be asserted that the remedy furnished for under the Code of Civil Procedure, 1908 is not sufficient Remedy to facilitate this Court to engage the Writ Petition.
While not revolutionary, the Case is necessarily a crucial Judgement because of its constraint on handing out writs of Mandamus, especially when alternative remedies in the Civil Procedure Code are available.
- K. Roy Vs Union of India[xxii]
This Case comprised a crucial review of the Court’s power to issue a writ of mandamus. If Parliament cedes room to the Executive to conduct a policy as they please, it is not in the Power of the Court to hand out a directive compelling the Executive to execute contrarily.
Thus, all in all the Remedies have been a huge savior to India and its people. The Powers of the Writs are capable of restricting many evils in society just by the proper implementation of it.
Rightly called the “heart and soul of Constitution” it is the only Article that compels for the enforcement of Fundamental Rights which is the backbone of our Constitution. Without a doubt, these remedies can be called the Guardian and the Savior of the Constitution.
It has been a key in restricting the illegalities in a Corruption infested country. One of the Articles which prompts action instead of Ideals has led to huge responsibility to our Judiciary to take claim to the ideals with which the Constitution was made.
[i] The University of Mysore Vs C D Govinda Rao, 1965 AIR 491, 1964 SCR (4) 576
[ii] Dr Y.S. Rajasekara Reddy Vs Nara Chandra Babu Naidu, 1999 (6) ALD 623, 1999 (6) ALT 406
[iii] Jamalpur Arya Samaj Vs Dr D. Ram AIR 1954 Pat. 297
[iv] Kanu Sanyal Vs District Magistrate, 1974 AIR 510, 1974 SCR (3) 279
[v] ADM Jabalpur Vs Shivakant Shukla, 1976 AIR 1207, 1976 SCR 172
[vi] Ranjit Vs Pepsu, AIR 1959 SC 843
[vii] Bissewar Roy Vs Emperor, 1925, AIR CAI 1961
[viii] Gopalan Vs Government of India, AIR 1950 SCR 88
[ix] Sheila Bharse Vs State of Maharashtra, AIR 1983 SC 378
[x] Maneka Gandhi Vs Union of India, AIR 1978 SC 597
[xi] East India Commercial Co. Ltd Vs Collector of Customs, 1962 AIR 1893, 1963 SCR (3) 338
[xii] Hari Vishnu Kamath Vs Syed Ahmad Ishaque, 1955 AIR 233
[xiii] S Govinda Menon Vs Union of India, 1967 AIR 1274
[xiv] Surya Dev Rai Vs Ram Chander Rai & Ors, Appeal (civil) 6110 of 2003
[xv] Naresh S. Mirajkar Vs the State of Maharashtra, AIR, 1 1966 SCR (3) 744
[xvi] Hari Vishnu Kamath Vs Syed Ahmad Ishaque, 1955 AIR 233
[xvii] Nagendra Nath Bora Vs Commissioner of Hills, 1958 AIR 398
[xviii] S.P. Gupta Vs Union of India, AIR 1982 SC 149, 1981 Supp (1) SCC 87, 1982 2 SCR 365
[xix] C.G. Govindan Vs the State of Gujarat, (1992) IILLJ 473
[xx] S P. Gupta Vs President of India, AIR 1982 SC 149
[xxi] Vemula Prabhakar Vs Land Acquisition Officer, 2002 (1) ALD 200, 2002 (1) ALT 322
[xxii] K. Roy Vs Union of India, 1982 AIR 710, 1982 SCR (2) 272