Article 32: As the very heart and the very soul of the Constitution

A RESEARCH MADE BY- Ravi Prakash

- B.A. LL.B.(Hons.)

- 1756 (Section: A)

FINAL DRAFT SUBMITTED TO –Prof. Dr. Anirudh Prasad,

Professor of Law

A research submitted for fulfillment for the course of Constitution Law-1, for
attaining the degree B.A. LL.B.(Hons.)

Chanakya National Law University, Nyaya Nagar, Mithapur,

Patna, Bihar 800001

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 DECLARATION

I, Ravi Prakash hereby declare that the project entitled “Article 32: As the very heart and
the very soul of the Constitution” submitted to the Chanakya National Law University,
Patna is a record of bonafide and independent work done by me under the supervision and
guidance of Professor of Constitutional Law, Prof. Dr. Anirudh Prasad, Professor of Law.

All information furnished in the project for scrutiny is the true to the best of my knowledge.
This project consists of secondary data.

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 ACKNOWLEDGEMENTS

At the outset, I take this opportunity to thank my Prof. Dr. Anirudh Prasad, Professor of Law
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 CNLU 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 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
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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Contents
1. Introduction........................................................................4
2. Article 32 & It’s Scope.........................................................6
3. Types Of Writs Under Article 32.........................................9
4. Conclusion.........................................................................21
BIBLIOGRAPHY.......................................................................21

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 1. Introduction

Article 32 of the Indian Constitution gives the right to individuals to move to the Supreme
Court to seek justice when they feel that their right has been ‘unduly deprived’. The apex
court is given the authority to issue directions or orders for the execution of any of the rights
bestowed by the constitution as it is considered ‘the protector and guarantor of Fundamental
Rights’.1

Under Article 32, the parliament can also entrust any other court to exercise the power of the
Supreme Court, provided that it is within its Jurisdiction. And unless there is some
Constitutional amendment, the rights guaranteed by this Article cannot be suspended.
Therefore, we can say that an assured right is guaranteed to individuals for enforcement of
fundamental rights by this article as the law provides the right to an individual to directly
approach the Supreme Court without following a lengthier process of moving to the lower
courts first as the main purpose of Writ Jurisdiction under Article 32 is the enforcement of
Fundamental Rights.

Dr Ambedkar stated that:

“If I was asked to name any particular article in this 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 and I am
glad that the House has realized its importance.”2

OBJECTIVE:- The aim is to present a detailed study of the topic. The main objective is to
know about in what cases & circumstances the provision of writ is triggered under Article 32
of Indian Constitution.

HYPOTHESIS:- Article 32 is an implementation mechanism effectively enforce the

Fundamental Rights guaranteed by the Constitution.

1
Article 32, Indian Constitution.
2
https://blog.ipleaders.in/article-32-constitution-india/

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 2. Article 32 & It’s Scope

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

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 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

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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. 3
Supreme court has stated that where relief through High Court is available under article 226,
the party should first approach High Court.4 The Supreme Court is constituted as guarantor
and protector5 of fundamental rights, and it cannot refuse to entertain applications seeking
protection against infringement of such rights. 6 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 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.7

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, for the exercise of the court’s
jurisdiction, 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 power given to the public by
courts through judicial activism. However, the person filing the petition must prove to the
satisfaction of the court that the petition is being filed for a public interest and not just as a

3
Kochunni v. State of Madras AIR 1959 SC 725
4
P.N.Kumar v. municipal corp. of Delhi 1987 4 SCC 609
5
Rashid Ahmed v. The Municipal Board, Kairana, AIR 1950 SC 124
6
Ramesh Thapar v. State Of Madras AIR 1950 SC 124
7
Narinderjit Singh Sahni v. UOI 2002 2 SCC 708

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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.8 A letter in PIL should be
addressed to the court not to an individual judge. 9 PIL cannot be entertained where stand
taken was contrary to stand taken by those who are affected by action.10

8
Kasturi Lal Ralia Ram JAIN V. State of UP AIR 1965 SC 1039
9
Sachdev v. UOI 1991 1 SCC 605
10
Rameshwar Prasad v. UOI AIR 2006 SC 980

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 3. Types Of Writs Under Article 32

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.11 It is discretionary and will not be
granted if there is an alternative remedy equally beneficial, convenient and effective.12

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 failure 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.13

Mandamus in Indian Law prior to the Constitution

11
R. v. Baker (1762) 3 Burr. 1265, 1267.
12
 Syndicate v. Union of India. A.I.R. 1975 S.C. 460 
13
Binny Limited vs. V. Sadasivan 2005 AIR (SC) 3202

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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. 14 It will
not be issued where to do or not to do an act is left to the discretion of the authority. 15
It was refused where the legal duty arose from an agreement which was in dispute. 16
The duty to be enforced by a writ mandamus could arise by a provision of
the Constitution17 or of a statute18 or of the common law.19

(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.20Even 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.21

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 power22. Again it can be issued to a municipality to discharge its statutory
duty.

14
Dr. Rai Shivendra Bahadur v, Governing Body of the Nalunda College, A.I.R. 1962 S.C. 1210. 
15
 Controller of Monghyr v. Keshav Prasad, A.I.R. 1962 S.C. 1694
16
Carlsbad Mineral Water Mfg. Co. v. H.M. Jagtiani, A.I.R. 1952 Cal. 315.
17
Chintaman Rao v. State of M.P., A.l.R. 1951 S.C. 118
18
 State of Bombay v. Hospital Mazdoor Subba, A.l.R. I960 S.C. 610
19
Juggilal Kamalapat v. The Collector of Bombay, A.l.R. 1946 Bom. 280. 
20
Shantabai v. Bombay, A.l.R. 1958 S.C. 532
21
 Calcutta Gas Co. v. State of W.B., A.l.R. 1962 S.C. 1044
22
Rampal v. State of Raj. AIR 1981 SC 121

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 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. 23
Mandamus is not available where the order upon which the alleged right of the
petitioner is founded is itself ultra vires. 24 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.25

(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.26 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 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.27

Against whom Mandamus will not be issued

In India, it will not lie upon the President and the Governor of a State in their personal
capacities.28 However, the Constitution expressly provides that appropriate proceedings may
be brought against the Government of India and the Government of a State. 29 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

23
Jiwat Bai & Sons v. G.C. Batra. A.l.R. 1976 Delhi 310
24
Prakaslt v. Principal, A.l.R. 1965 M.P. 217
25
Kalyan Singh v. State of U.P., A.I.R. 1962 S.C. 1153
26
 Guruswami v. State of Mysore, A.I.R. 1954 S.C. 592
27
Bengal Immunity Co. Ltd. vd. State of Bihar, A.I.R. 1955 S.C. 661
28
 Article 361
29
 Articles 300 and 361

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legislature.30 Mandamus will not be issued to a legislature to forbid it from passing legislation
repugnant to the fundamental rights.31 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 legislature 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.32 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.33 However, it will not lie to secure performance by a company of a duty towards its
employees which is not of a public nature.34

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. 35 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.36Mandamus 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.
30
 Article 122 (2) and 212 (2)
31
Choteylal v. State of U.P., A.l.R. 1951 All 228
32
Shankar v. Returning Officer, A.I.R. 1952 Bom 277
33
State of Bombay v. United Motors. A.I.R 1953 S.C. 252
34
The Praga Toots Corporation v. C.V. immanuel, A.I.R. 1969 S.C 1306
35
State of Bombay v. United Motors, A.I.R. 1951 S.C. 252
36
Veerappa Pillaiv. Raman Rtimin Ltd.. A.I.R. 1952 S.C. 192

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Union of India37, the Supreme Court has adopted the following statement of law in this
regard. :

"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 demand 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. 38 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". 39 The demand must be made to the proper
authority and not to an authority which is not in a position to perform its duty in 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.

CERTIORARI

37
AIR 1975 SC 460 
38
 Amrit Lal v. Colllector, C.E.C. Revenue, A.I.R. 1975 S.C. 538
39
The Stateman v. Fact finding Committee, A.I.R. 1975 Cal. 14

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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 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 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 Parlakimedi 40 , 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
act, as distinguished from being a ministerial act, certiorari will lie. 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 principle has been transplanted to other parts of the King's dominions, and operates,
within certain 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;

40
AIR 1943 PC 164

14
(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 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 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.

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

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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 “alternative” or “peremptory.” An alternative Writ directs the
recipient to immediately act, or desist, and “Show Cause” why the directive should not be
made permanent. A peremptory Writ directs the recipient to immediately act, or desist, and
“return” the Writ, with certification 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.Radhakrishnan41 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 jurisdiction42 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 rights43

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

41
AIR 1964 SC 477
42
STO V. Shiv Ratan AIR 1966 SC 142
43
UP Sales tax service assn. v. taxation bar assn. 1995 5 SCC 716

16
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 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.

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 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 issued 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 him not to carry out any
activities in the office or may announce the office to be vacant. The writ is issued by the

17
Court after reviewing the circumstances of the case. There are a few 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 44 , “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.

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

44
(1957) 59 BOMLR 1088

18
b) proceeding is for contempt of a legislation or court order and

c) detention is outside jurisdiction of court.45

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 except 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. 46

The writ of habeas corpus  is issued to a detaining authority, ordering the 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.

45
http://indiaopines.com/a-d-m-jabalpur-shukla-emergency-1975-77/
46
http://indiaopines.com/a-d-m-jabalpur-shukla-emergency-1975-77/

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In Kanu Sanyal v. District Magistrate 47, 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 Sheela Barse v. State of Maharashtra 48, 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.

In Nilabati Behera v. State of Orissa 49, 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.

In Malkiat Singh v. State of U.P 50, 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.

4. 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.
47
AIR 1973 SC 2684
48
AIR 1983 SC 378
49
AIR 1993 SC 1960
50
AIR 1999 SC 1522

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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.

BIBLIOGRAPHY

WEBSITES REFFERED:

 http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-
41da-aa0b-b4201b77a8bd&txtsearch=Subject:%20Jurisprudence

 http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=deaf8251-5a4a-
4c50-b8e1-7be4929c7b29&txtsearch=Subject:%20Constitution

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  http://www.jstor.org/discover/10.2307/4408327?
uid=2134&uid=2478015017&uid=2&uid=70&uid=3&uid=2478015007&uid=60&sid
=21104966304703

 http://supremecourtofindia.nic.in/scr/2012_v10_piv.pdf

 http://indiankanoon.org/search/?formInput=writ%20of%20quo
%20warranto+doctypes:supremecourt

BOOKS REFFERED:

M.P.Jain- Indian Constitutional Law, 7th edition

Constitutional Law of India- Dr J N Pandey, 51st edition

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