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RESEARCH PROJECT ON
ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES
SUBMITTED TO
THE TAMILNADU NATIONAL LAW SCHOOL, TIRUCHIRAPPALLI.
In Fulfillment of the Requirements for Internal I nternal Component in
CONSTITUTIONAL LAW By
Arvind.G
(Regd. No. BA0130012)
Under the guidance & Supervision of Prof. Nageshwar Rao
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DECLARATION
I, Arvind.G hereby declare that the project entitled “ ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES ” submitted to the Tamil Nadu National Law School; Tiruchirappalli, is a record of bonafide and independent work done by me under the supervision and guidance of Senior Professor of Constitutional Law, Nageshwar Rao, Faculty of Department of Constitution, Tamil Nadu National Law School; Tiruchirappalli. All information furnished in the project for scrutiny is the true to the best of my knowledge. This project consists of of secondary secondary data.
Arvind.G Section- A 2-11-14.
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ACKNOWLEDGEMENTS
At the outset, I take this opportunity to thank my Professor Nageshwar Rao from the bottom of my heart who have been of immense help during moments of anxiety and torpidity while the project was taking its crucial shape. Secondly, I convey my deepest regards to the administrative staff of TNNLS who held the project in high esteem by providing reliable information in the form of library infrastructure and database connections in times of need. Thirdly, the contribution made by my parents and friends by foregoing their precious time is unforgettable unforgettable and highly solicited. Their valuable advice and timely supervision paved the way for the successful completion of this project. Words aren‟t sufficient to acknowledge the tremendous contributions of various people involved in this project- as I know „Words are Poor Comforters‟. I once again once again wholeheartedly and earnestly thank all the people who were involved directly or indirectly during this project making which helped me to come out with flying colours.
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SUPERVISOR’S CERTIFICATE
This is to certify that the Research Project entitled: “ARTICLE 32:RIGHT TO CONSTITUTIONAL REMEDIES ” submitted to the Tamil Nadu National Law School; Tiruchirappalli, in fulfillment of the requirements requirements for internal component for B.A; LL.B (HONS.), Third Semester is an original and bonafide research work carried out by ARVIND.G . No part of this study has been submitted to any University for the award of any Degree or Diploma whatsoever.
Prof. Nageshwar Rao (
)
Date: 2-11-14 Place: Tiruchirappalli
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CONTENTS LIST OF CASES REFFERED……………………………………………6
INTRODUCTION…………………………………………………………7 ARTICLE
32 AND IT’S SCOPE…………………………………………8
MANDAMUS…………………………………………………………… ...10 CERTIORARI…………………………………………………………….14 PROHIBITION……………………………………………………………16 WRITS OF PROHIBITION AND CERTIORARI …………………… ..17 QUO WARRANTO ……………………………………………………… .18 HABEAS CORPUS ……………………………………………………… .19 CONCLUSION…………………………………………………………… 21 BIBLIOGRAPHY………………………………………………………… 22
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LIST OF CASES REFFERED
State of Bombay v. Hospital Mazdoor Subba
Juggilal Kamalapat v. The Collector of Bombay
Shantabai v. Bombay
Calcutta Gas Co. v. State of W.B.
Rampal v. State of Raj.
Jiwat Bai & Sons v. G.C. Batra.
Prakaslt v. Principal, A.l.R.
Kalyan Singh v. State of U.P.
Guruswami v. State of Mysore
Bengal Immunity Co. Ltd. vd. State of Bihar
Choteylal v. State of U.P.
Shankar v. Returning Officer
State of Bombay v. United Motors.
The Praga Toots Corporation v. C.V. immanuel
State of Bombay v. United Motors
Veerappa Pillaiv. Raman Rtimin Ltd..
S.I. Syndicate v. Union of India
Amrit Lal v. Colllector, C.E.C. Revenue
The Stateman v. Fact finding Committee
Ryots of Garabandho v. Zamindar of Parlakimed
Hari Vishnu Kamath Vs. Ahmad Ishaque
Sonu Sampat v. Jalgaon Borough Municipality
Kanu Sanyal v. District Magistrate
Barse v. State of Maharashtra
Nilabati Behera v. State of Orissa
Malkiat Singh v. State of U.P
STO V. Shiv Ratan AIR
UP Sales tax service assn. v. taxation bar assn
Syed Yakoob v. K.S.Radhakrishnan
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INTRODUCTION Rights without remedies are meaningless so founding fathers have inserted article 32 by which an individual can get a remedy by infringement of fundamental right. Article 32 of the Constitution gives power to the Supreme Court to issue writs in case of breach of Fundamental rights of any citizen by the state. By such writs the Judiciary can control the administrative actions and prevent any kind of arbitrary use of power and discretion. There are 5 kinds of writs - Mandamus - Certiorari - Prohibition - Quo warranto - Habeas corpus
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Article 32 in The Constitution Of India
32. Remedies for enforcement of rights conferred by this Part (1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have 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 conferred by this Part (3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ). Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under under clause ( 2 ). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
SCOPE OF ARTICLE 32
Only fundamental rights can be enforced under article 32. Some decisions have pointed out that since the remedy under article 32(1) is itself the enforcement of fundamental right, Supreme Court is under duty to grant relief for violation of a substantive fundamental right. 1 Supreme court has stated that where relief through High Court is available under article 226, the party should first approach High Court. 2 The Supreme Court is constituted as guarantor and protector 3 of fundamental rights, and it cannot refuse to entertain applications seeking protection against infringement of such rights. 4 Article 32 has been described as the very soul and heart of Indian Constitution . Jurisdiction conferred on article 32 is an important and integral part of the basic structure of Constitution of India and no act of Parliament can abrogate it or take it away except by way of impermissible erosion of fundamental principles of constitutional scheme. It provides an inexpensive and expeditious remedy. In Ambedkar's memorable words: 'If I was asked to name any particular Article in i n the Constitution as the most important - an Article without which this Constitution would be a nullity- I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it'. LOCUS STANDI
Any person complaining of infraction of any fundamental right guaranteed by the constitution is guaranteed to move to the Supreme Court but the rights that could be involved under article 32 must ordinarily be rights of person who complains infraction of such rights and approaches the court for relief , as to the nature of rights that is stated to have been infringed. 5 PUBLIC INTEREST LITIGATION
In Indian law, public interest litigation means litigation for the protection of the public interest. It is litigation introduced in a court of law, not by the aggrieved party but by the court itself or by any other private party. It is not necessary, necessar y, for the exercise of the court‟s jurisdiction, j urisdiction, that the person who is the victim of the violation of his or her right should personally approach the court. Public interest litigation is the
1
Kochunni v. State of Madras AIR 1959 SC 725 P.N.Kumar v. municipal corp. of Delhi 1987 4 SCC 609 3 Rashid Ahmed v. The Municipal Board, Kairana, AIR 1950 SC 124 4 Ramesh Thapar v. State Of Madras AIR 1950 SC 124 5 Narinderjit Singh Sahni v. UOI 2002 2 SCC 708 2
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power given to the t he public by courts through judicial activism. However, the person filing the petition petit ion must prove to the satisfaction of the court that the petition is being filed for a public interest and not just as a frivolous litigation by a busy body. The development of PIL has largely modified the rule of locus standi. PIL may be transferred to appropriate High Court. 6 A letter in PIL should be addressed to the court court not to an 7 individual judge. PIL cannot be entertained where stand taken was contrary to stand taken by those who are affected by action.8
6
Kasturi Lal Ralia Ram JAIN V. State of UP AIR 1965 SC 1039 Sachdev v. UOI 1991 1 SCC 605 8 Rameshwar Prasad v. UOI AIR 2006 SC 980 7
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MANDAMUS
A writ of mandamus or mandamus (which means "we command" in Latin), or sometimes mandate, is the name of one of the prerogative writs in the common law, and is "issued by a superior court to compel a lower court or a government officer to perform mandatory or purely ministerial duties correctly". Mandamus lies to enforce a public duty in the performance of which the petitioner has a sufficient legal interest, but he must show that he has demanded performance which has been refused. 9 It is discretionary and will not be granted if there is an alternative remedy equally beneficial, convenient and effective. 10
Definition of Mandamus
Mandamus according to Black's law dictionary, Ninth Edition "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 fail ure to act." The order of mandamus is of a most extensive remedial nature, and is in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in nature of a public duty. Mandamus is not a writ of right, it is not consequently granted of course, but only at the discretion of the court to whom the application for it is made; and this discretion is not exercised in favour of the applicant, unless some just and useful purpose may be answered by the writ. A writ of mandamus or remedy is pre -eminently a public law remedy and is not generally available against private wrongs. 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.11 Mandamus in Indian Law prior to the Constitution
Mandamus was introduced in India by the Letters Patent creating the Supreme Court in Calcutta in 1773. The Supreme Courts in the Presidency towns were empowered to issue the writ. The Supreme Court can also issue mandamus for the enforcement of fundamental rights. Interpretation of Public right and mandamus
Mandamus lies against authorities whose duty is to perform certain acts and they have failed to do so. Under following circumstances mandamus can be issued : (i) The applicant must have a legal right to the performance of a legal duty. 12 It will not be issued where to do or not to do an act is left to the discretion of the authority. 13 It was refused where the
9
R. v. Baker (1762) 3 Burr. 1265, 1267. Syndicate v. Union of India. A.I.R. 1975 S.C. 460 11 Binny Limited vs. V. Sadasivan 2005 AIR (SC) 3202 12 Dr. Rai Shivendra Bahadur v, Governing Body of the Nalunda College, A.I.R. 1962 S.C. 1210. 13 Controller of Monghyr v. Keshav Prasad, A.I.R. 1962 S.C. 1694 10
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legal duty arose from an agreement which was in dispute. 14 The duty to be enforced by a writ mandamus could arise by a provision of the Constitution 15 or of a statute 16 or of the common law. 17 (ii) The legal duty must be of a public nature. In The Praga Tools Corporation v. C.V. Imanual, A.l.R. 1969 S.C. 1306 : 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. It will not issue against a private individual to enforce a private right such as a contract. 18Even though mandamus does not lie to enforce a contract inter partes, it will lie where the petitioner's contractual right with a third party is interfered with by the State. 19 If the authority were under law obliged to exercise discretion, mandamus would lie to exercise it in one way or the other. Mandamus can be issued to compel an income-tax officer to carry out the instructions issued by income-tax appellate tribunal exercising its appellate power 20. Again it can be issued to a municipality to discharge its statutory stat utory duty. Where there is no statutory provision, executive instructions fill in the gap and are capable of conferring rights on the citizen imposing obligations on the authorities. In appropriate cases the courts may even compel the performance of such a duty. 21 Mandamus is not available where the order upon which the alleged right of the petitioner is founded is itself ultra vires. 22 Where provisions are merely directory, non-compliance with them does not render an act invalid and hence no mandamus issues. (iii) The right sought to be enforced must be subsisting on the date of the petition. If the interest of the petitioner has been lawfully terminated before that date, he is not entitled to the writ. 23 (iv) As a general rule, mandamus is not issued in anticipation of injury. There are exceptions to this rule. 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. 24 A person against whom an illegal or unconstitutional order is made is entitled to apply to the court for redress even before such order is actually actuall y enforced against him or even before something to his detriment is done in pursuance of the order. For, the issue of such order constitutes an immediate encroachment on his rights.25
14
Carlsbad Mineral Water Mfg. Co. v. H.M. Jagtiani, A.I.R. 1952 Cal. 315. Chintaman Rao v. State of M.P., A.l.R. 1951 S.C. 118 16 State of Bombay v. Hospital Mazdoor Subba, A.l.R. I960 S.C. 610 17 Juggilal Kamalapat v. The Collector of Bombay, A.l.R. 1946 Bom. 280. 18 Shantabai v. Bombay, A.l.R. 1958 S.C. 532 19 Calcutta Gas Co. v. State of W.B., A.l.R. 1962 S.C. 1044 20 Rampal v. State of Raj. AIR 1981 SC 121 21 Jiwat Bai & Sons v. G.C. Batra. A.l.R. 1976 Delhi 310 22 Prakaslt v. Principal, A.l.R. 1965 M.P. 217 23 Kalyan Singh v. State of U.P., A.I.R. 1962 S.C. 1153 24 Guruswami v. State of Mysore, A.I.R. 1954 S.C. 592 25 Bengal Immunity Co. Ltd. vd. State of Bihar, A.I.R. 1955 S.C. 661 15
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Against whom Mandamus will not be issued i ssued
In India, it will not lie upon the President and the Governor of a State in their personal capacities. 26 However, the Constitution expressly provides that appropriate proceedings may be brought against the Government of India and the Government of a State. 27 No mandamus will lie against an officer or member of parliament or an officer or member of the legislature of a State In whom powers are vested by or under the Constitution for regulating procedure or the conduct of business or for maintaining order in Parliament or the State legislature.28 Mandamus will not be issued to a legislature to forbid it from passing legislation repugnant to the fundamental rights. 29 Article 329 of the Constitution restrains any law courts from entertaining electoral matters such as the validity any law relating to the delimitation of constituencies or the allotment of seats to such constituencies, made or purporting to beside under article 327 or article 328 and provides that no election to either House of Parliament or to the House or either House of the le gislature of a State shall be questioned except by an election petition presented as provided by Parliament. Election includes everything from the issue of the notification to the announcement of the result. It is not therefore possible to obtain mandamus against officials conducting the various stages of an election, ft was refused against a returning officer who rejected a nomination paper. 30 This ban however applies only in respect of elections to Parliament and State legislatures. Mandamus lies to secure the performance of a public duty. If the petitioner has sufficient legal interest in the performance it will issue even if the body against which it is claimed is not a statutory body. Thus it was issued against the Sanskrit Council; which was constituted by a resolution of the state government to compel it to hold the examination and publish the results. 31 However, it will not lie to secure performance by a company of a duty towards its employees which is not of a public nature. 32 Alternative Remedy: A Bar to Mandamus
Mandamus is not refused on the ground that there is an adequate alternate remedy where the petitioner complains that his fundamental right is infringed. 33 The courts are duty bound to protect the fundamental rights and therefore mandamus is issued. It is only when mandamus is issued "for any other purpose" that the existence of an alternate remedy bars its issuance. 34Mandamus will not, however, be refused when ordinary civil proceedings or administrative appeals or revision do not provide an equally effective and convenient remedy. Demand and refusal
For the issue of mandamus against an administrative authority the affected individual must demand justice and only on refusal he has right to approach the Court. In S.I. Syndicate v. Union of India 35, the Supreme Court has adopted the following statement of law in this regard. :
26
Article 361 Articles 300 and 361 28 Article 122 (2) and 212 (2) 29 Choteylal v. State of U.P., A.l.R. 1951 All 228 30 Shankar v. Returning Officer, A.I.R. 1952 Bom 277 31 State of Bombay v. United Motors. A.I.R 1953 S.C. 252 32 The Praga Toots Corporation v. C.V. immanuel, A.I.R. 1969 S.C 1306 33 State of Bombay v. United Motors, A.I.R. 1951 S.C. 252 34 Veerappa Pillaiv. Raman Rtimin Ltd.. A.I.R. 1952 S.C. 192 35 AIR 1975 SC 460 27
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"As a general rule the orders would not be granted unless the party complained of has known what it was he was required to do, so that he had the means of considering whether or not he should comply, and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus desires to enforce, and that the dem and was met by a refusal." Thus, a party seeking mandamus must show that the demand justice from the authority concerned by performing his duty and that the demand was refused. In S.I.Syndicate the court refused to grant mandamus as there was no such demand or refusal. Where a civil servant approached the court for mandamus against wrongful denial of promotion, he was denied the relief because of his failure to make representation to the government against injustice.36 The demand for justice is not a matter of form but a matter of substance and it is necessary that a "proper and sufficient matter has to be made". 37 The demand must be made to the proper authority and not to an authority authority which is not in a position to perform its duty in manner manner demanded. It is suggested that the court should not fossilize this rule into something rigid and inflexible but keep it as flexible. Demand may also not be necessary "where it is obvious that the respondent would not comply with it and therefore it would be but an ideal formality." Conclusion
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. Hence it forms one of basic tool in the hands of the common people against the administrative bodies if they do not fulfil the duties which by statutes they are bound to perform.
36 37
Amrit Lal v. Colllector, C.E.C. Revenue, A.I.R. 1975 S.C. 538 The Stateman v. Fact finding Committee, A.I.R. 1975 Cal. 14
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CERTIORARI
Certiorari is a Latin word meaning "to be informed of, or to be made certain in regard to". Literally, Certiorari means to be certified. The writ of certiorari is issued by the Supreme Court to some inferior court or tribunal to transfer the matter to it or to some other superior authority for proper consideration. It is a writ (order) of a higher court to a lower court to send all the documents in a case to it so the higher court can review the lower court‟s decision. Appellate review of a case that that is granted by the issuance of certiorari is sometimes called an appeal, although such review is at the discretion of the appellate court. A party, the petitioner, files a petition for certiorari with the appellate court after a judgment has been rendered r endered against him in the inferior court. Certiorari may apply when the administrative or executive authority fails to observe their duty to act fairly with respect to the administrative functions. The writ of Certiorari may also be issued against a subordinate tribunal even if the decision impugned is pronounced. A leading case of Ryots of Garabandho v. Zamindar of Parlakimedi38 , was the first decision on the writ of Certiorari- "The ancient writ of certiorari in England is an original writ which may issue out of a superior Court requiring that the record of the proceedings in some cause or matter pending before an inferior Court should be transmitted into the superior Court to be there dealt with. The writ is so named because, in its original Latin form, it required that the King should "be certified" of the proceedings to be investigated, and the object is to secure by the exercise of the authority of a superior Court, that the jurisdiction of the inferior tribunal should be properly exercised. This writ does not issue to correct purely executive acts, but, on the other hand, its application is not narrowly limited to inferior "Courts" in the strictest sense. Broadly speaking, it may be said that if the act done by the inferior body is a judicial j udicial act, as distinguished from being a ministerial act, certiorari will lie. l ie. The remedy, in point of principle, is derived from the superintending authority which the Sovereign's Superior Courts, and in particular the Court of King's Bench, possess and exercise over inferior jurisdictions. This pri nciple has been transplanted to other parts of the King's dominions, and operates, within ce rtain limits, in British India." in Hari Vishnu Kamath Vs. Ahmad Ishaque 1955-I S 1104 : ((s) AIR 1955 SC 233) and the following four propositions were laid down :"(1) Certiorari will be issued for correcting errors of jurisdiction; (2) Certiorari will also be issued when the Court or Tribunal acts illegally in the exercise of its undoubted jurisdiction, as when it decides without giving an opportunity to the parties to be heard, or violates the principles of natural justice; (3) The court issuing a writ of certiorari acts in exercise of a supervisory and not appellate jurisdiction. One consequence of this is that the court will not review findings of fact reached by the inferior court or tribunal, even if they be erroneous. (4) An error in the decision or determination itself may also be amenable to a writ of certiorari if it is a manifest error apparent on the face of the proceedings, e.g., when it is based on clear ignorance or disregard of the provisions of law. In other words, it is a patent error which can be corrected by certiorari but not a mere wrong decision." Certiorari jurisdiction though available is not to be exercised as a matter matte r of course. The High Court would be justified in refusing the writ of certiorari if no failure of justice has been occasioned. In exercising the 38
AIR 1943 PC 164
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certiorari jurisdiction the procedure ordinarily followed by the High Court is to command the inferior court or tribunal to certify its record or proceedings to the High Court for its inspection so as to enable the High Court to determine whether on the face of the record the inferior court has committed any of the preceding errors occasioning failure of justice.
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PROHIBITION
Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. It is a writ issued by a superior court to lower court or a tribunal forbidding it to perform an act outside its jurisdiction. After the issue of this writ, proceedings in the lower court come to a stop.
A writ of prohibition is issued primarily to prevent an inferior court from exceeding its jurisdiction, or acting contrary to the rule of natural justice, for example, to restrain a Judge from hearing a case in which he is personally interested. The term “inferior courts” comprehends special tribunals, commissions, magistrates and officers who exercise judicial powers, affecting the property or rights of the citizen and act in a summary way or in a new course different from the common law. It is well established that the writ lies only against a body exercising public functions of a judicial or quasi- judicial character and cannot in the nature of things be utilised to restrain legislative powers. These Writs are issued as “alternative” or “peremptory.” An alternative Writ directs the recipient to immediately act, or desist, and “Show Cause” why the dir ective dir ective should not be made permanent. A peremptory Writ directs the recipient to immediately immediatel y act, or desist, and “return” the Writ, W rit, with wit h certification certificati on of its compliance, within a certain time. The writ can be issued only when the proceedings are pending in a court if the proceeding has matured into decision, writ will not lie. In Syed Yakoob v. K.S.Radhakrishnan 39 The writ of prohibition or certiorari can be issued on the following grounds: -When the body concerned proceeds to act without, or in excess of jurisdiction, or -fails to exercise its jurisdiction40 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 court are based on no evidence or -it proceeds to act against principles of natural justice or -it proceeds to act under a law which is itself invalid, ultra vires or unconstitutional or -it proceeds to act in contravention of fundamental rights 41 -
39
AIR 1964 SC 477 STO V. Shiv Ratan AIR 1966 SC 142 41 UP Sales tax service assn. v. taxation bar assn. 1995 5 SCC 716 40
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Writs of Prohibition and Certiorari The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, prohibiting the latter to continue proceedings in a particular case, where it has no legal jurisdiction of trial. While the writ of mandamus commands doing of particular thing, the writ of prohibition is essentially addressed to a subordinate court commanding inactivity. Writ of prohibition is, thus, not available against a public officer not vested with judicial or quasi-judicial powers. The Supreme Court can issue this writ only where a fundamental right is affected. The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court. In other words, while the prohibition is available at the earlier stage, certiorari is available on similar grounds at a later stage. It can also be said that the writ of prohibition is available during the tendency of proceedings before a sub-ordinate court, certiorari can be resorted to only after the order or decision has been announced. There are several conditions necessary for the issue of writ of certiorari, which are as under: (a) There should be court, tribunal or an officer having legal authority to determine the question of deciding fundamental rights with a duty to act judicially. (b) Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority authorit y vested by law in such court, tribunal or law. The order could also be against the principle of natural justice or it could contain an error of judgment in appreciating the facts of the case.
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QUO WARRANTO
The word Quo-Warranto literally means "by what warrant?" It is a writ issued with a view to restraining a person from acting in a public office to which he is not entitled. The writ writ of Quo- warranto is used to prevent illegal assumption of any public office or usurpation of any public office by anybody. The meaning of the term Quo Warranto is „by what authority‟. The writ of quo warranto may be is sued against a person holding a public office or governmental privilege. The issue of summon is followed by legal proceedings, during which an individual‟s right to hold an office or governmental privilege is challenged. The writ requires the concerned person to explain to the Court by what authority he holds the office. If a person has usurped a public office, the Court may direct dir ect him not to carry out any an y activities in the t he office or may announce the office to be vacant. The writ is issued by the Court after reviewing the circumstances of the case. There are a few f ew conditions which must be fulfilled for the grant of the writ of quo warranto India: The concerned office must be a government unit or public office which performs public duties. Examples of such office members are advocate general, university officials, members of a municipal board. The public office must have a real existence. It should be permanent and cannot be terminated. A person against whom the writ of quo warranto is issued must have the real possession of the public office. The writ shall be issued only when the public office is held by a particular person in an illegal manner In Sonu Sampat v. Jalgaon Borough Municipality 42 , “If the appointment of an officer is illegal, everyday that he acts in that office, a fresh cause of action arises and there can be therefore no question of delay in presenting a petition for quo warranto in which his very, right to act in such a responsible post has been questioned.” A writ of quo warranto is not a petition, but a notice of demand, issued by a demandant, to a respondent claiming some delegated power, and filed with a court of competent jurisdiction, to hold a hearing within 3 to 20 days, depending on the distance of the respondent to the court, to present proof of his authority to execute his claimed powers. If the court finds the proof insufficient, or if the court fails to hold the hearing, the respondent must cease to exercise the power. If the power is to hold an office, he must vacate the office. The writ is unlike a petition or motion to show cause, because the burden of proof is on the respondent, not on the demandant.
42
(1957) 59 BOMLR 1088
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HABEAS CORPUS It is a Latin term which literally means ‘to have the body of’. It is basically an order of court to person who has
detained another to produce latter before the court, to check cause and legality of detention. So this writ under article 32 is a powerful measure against arbitrary detention either by private individuals or executive. However Habeas Corpus under Article 32 can’t be issued if a) detention is lawful b) proceeding is for contempt of a legislation or court order and c) detention is outside jurisdiction of court.
43
The history of this powerful writ appears to be traced to Anglo- Saxon common law roots; it’s precise mention occurring in the Magna Carta or The Great Charter of the Liberties of England in 1215. The oblique reference states “…no free man shall be taken or imprisoned or disseised or exiled or in any way destroyed e xcept by the lawful judgment of their peers or by the law of the land.” The right to invoke this writ lies with the person detained or
another person on his behalf to move to the court to object to the detainment. The person himself, or his representative, must prove that the authority/court ordering the detainment has made a factual or legal error. Clearly, the writ of Habeas Corpus remains the most powerful process by which any citizen may question the correctness of restraint on individual liberty. Article 21 of the Indian constitution guarantees the right to life and liberty to each and every citizen of the nation. Right to move to the court to enforce this article was suspended under Article 359 of the constitution when ‘internal’ emergency was imposed (1975-77). The logical question that
followed whether the writ of Habeas Corpus was enforceable in such a situation? The landmark Supreme Court case or the Habeas Corpus case attempted to answer this question, and was the reason for the 44th Constitutional Amendment in 1978. This amendment, passed unanimously, ensure that Article 21 cannot be suspended even during an Emergency.
44
The writ of habeas corpus is issued to a detaining authority, ordering the detainer detainer to produce the detained person in the issuing court, along with the cause of his or her detention. If the detention is found to be illegal, the court issues an order to set the person free. A remedy available to any person detained or imprisoned, not to hear and determine the case upon the evidence, but to immediately and in a summary way test the validity of the person's detention or imprisonment.
The Indian judiciary in a number of cases has effectively resorted to the writ of habeas corpus mainly in order to secure release of a person from illegal detention. Personal liberty has always been considered a cherished value in India & the writ of habeas corpus protects that personal liberty in case of illegal arrest or detention. As personal liberty is so important, the judiciary has dispensed with the traditional doctrine of locus standi. Hence if a detained person is not in a position to file a petition, it can be moved on his behalf by any other person. The judiciary while going one step further, has also dispensed with strict rules of pleadings. The increasing scope of writ of habeas corpus may be explained with the help of following cases decided by the Indian judiciary.
43
http://indiaopines.com/a-d-m-jabalpur-shukla-emergency-1975-77/ http://indiaopines.com/a-d-m-jabalpur-shukla-emergency-1975-77/
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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. 46
In Sheela Barse v. State of Maharashtra , while relaxing the traditional doctrine of locus standi, the apex court held that if the detained person is unable to pray for the writ of habeas corpus, someone else may pray for such writ on his behalf. 47
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. 48
In Malkiat Singh v. State of U.P , the son of a person was allegedly kept in illegal custody by the police officers. It was established that the son was killed in an encounter with the police. The court awarded Rs. 5,00,000 as compensation to the petitioner. Conclusion: In this manner, writ of habeas corpus has been used effectively by the judiciary for protecting personal liberty by securing the release of a person from illegal custody.
45
AIR 1973 SC 2684
46
AIR 1983 SC 378
47
AIR 1993 SC 1960
48
AIR 1999 SC 1522
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CONCLUSION Access to courts has been made much easier through the introduction of Public Interest Litigation. Locus standi has been made flexible thereby making access to courts much easier. Government would now be under close scrutiny as various remedies are provided under Article 32 to ensure that fundamental rights are not infringed. It is a part of the basic structure of our Constitution. The sole object of the Article 32 of the Constitution of India is the enforcement of the fundamental rights guaranteed under Part III of the Constitution of India and the purpose has been fulfilled by courts and their decisions. Though Though mistakes have been committed by court in interpreting this article (habeas corpus case) it has been corrected accordingly by constitutional amendment. Hence, it can be said that the intention of Constitution in framing this articlemakers has been achieved by courts through its decisions.
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