ARTICLE 32 OF
CONSTITUTION OF
INDIA
INTRODUCTION
Part III of the Constitution provides for legal remedies for the protection of
these rights against their violation by the State or other
institutions/individuals.
It entitles the citizens of India to move the Supreme Court or High Courts for
the enforcement of these rights. The State is forbidden from making any law
that may conflict with the Fundamental Rights.
Fundamental rights are the rights that grant individuals equality in every
aspect irrespective of race, colour, caste, religion, birthplace, or gender.
These rights are mentioned under Articles 12 to 35 of the Indian Constitution.
There are pre-defined punishments in case of violation of these rights upon
the discretion of the judiciary.
What is a Writ?
Writs are written orders issued by the Supreme Court of India to provide
constitutional remedies to protect the fundamental rights of citizens from a
violation.
Facts about writs in India
Article 32 also empowers Parliament to authorize any other court to issue these
writs
Before 1950, only the High Courts of Calcutta, Bombay, and Madras had the
power to issue the writs
Article 226 empowers all the high courts of India to issue the writs
Writs of India are borrowed from English law where they are known as
‘Prerogative writs’
What is a Writ Petition?
A writ petition is essentially a court petition for extraordinary review,
asking a court to intervene in a lower court’s decision.
Under the Indian legal system, jurisdiction to issue ‘prerogative writs’
is given to the Supreme Court and the High Courts of Judicature of all
Indian states.
Parts of the law relating to writs are outlined in the Constitution of
India.
The Constitution empowers the Supreme Court and
High Courts to issue orders or writs.
The types of writs are:
Habeas Corpus
Certiorari
Prohibition
Mandamus
Quo Warranto
Habeas Corpus
Habeas Corpus is a writ that is enforced to protect the
fundamental right to liberty of an individual against
unlawful detention.
This writ commands a public official to deliver a detained
person in front of the court and provide valid reasons for
the detention.
However, this writ cannot be issued in case the proceeding
is for contempt of a legislature or a court.
CASE LAWS
The first Habeas Corpus case of India was that in Kerala where it was
filed by the victims’ father as the victim P. Rajan who was a college
student was arrested by the Kerala police and being unable to bear
the torture he died in police custody. So, his father Mr T.V. Eachara
Warrier filed a writ of Habeas Corpus and it was proved that he died
in police custody.
Then, in the case of ADM Jabalpur v. Shivakant Shukla which is also
known as the Habeas Corpus case, it was held that the writ of
Habeas Corpus cannot be suspended even during the emergency
(Article 359).
CERTIORARI
The writ of certiorari is issued to a lower court directing that the
transfer of a case for review, usually to overrule the judgment of the
lower court.
The Supreme Court issues the writ of Certiorari in case the decision
passed by the lower court is challenged by the party.
It is issued in case the higher court finds it a matter of over
jurisdiction or lack of jurisdiction.
It is one of the mechanisms by which the fundamental rights of the
citizens are upheld.
When is a writ of Certiorari issued?
It is issued to quasi-judicial or subordinate courts if they act in the
following ways:
Either without any jurisdiction or in excess.
In violation of the principles of Natural Justice.
In opposition to the procedure established by law.
If there is an error in judgement on the face of it.
Writ of certiorari is issued after the passing of the order.
IMPORTANT CASE LAWS
In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court has
explained the meaning, ambit and scope of the writ of Certiorari.
Also, in this it was explained that Certiorari is always available against
inferior courts and not against equal or higher court, i.e., it cannot be
issued by a High Court against any High Court or benches much less
to the Supreme Court and any of its benches.
Then in the case of T.C. Basappa v. T. Nagappa & Anr. , it was held
by the constitution bench that certiorari maybe and is generally
granted when a court has acted (i) without jurisdiction or (ii) in
excess of its jurisdiction.
In Hari Bishnu Kamath v. Ahmad Ishaque , the Supreme Court said
that “the court issuing certiorari to quash, however, could not
substitute its own decision on the merits or give directions to be
complied with by the court or tribunal. Its work was destructive, it
simply wiped out the order passed without jurisdiction, and left the
matter there.”
In Naresh S. Mirajkar v. State of Maharashtra, it was said that High
Court’s judicial orders are open to being corrected by certiorari and
that writ is not available against the High Court.
PROHIBITION
Prohibition is a writ issued by a higher court to a lower court
to enforce inactivity in the jurisdiction.
It happens only in case the higher court is of the discretion
that the case falls outside the jurisdiction of the lower court.
Writ of Prohibition can only be issued against judicial and
quasi-judicial authorities.
IMPORTANT CASE LAWS
In case of East India Commercial Co. Ltd v. Collector of Customs a
writ of prohibition was passed directing an inferior Tribunal
prohibiting it from continuing with the proceeding on the ground
that the proceeding is without or in excess of jurisdiction or in
contradiction with the laws of the land, statutes or otherwise.
Then in the case of Bengal Immunity Co. Ltd the Supreme Court
pointed out that where an inferior tribunal is shown to have seized
jurisdiction which does not belong to it then that consideration is
irrelevant and the writ of Prohibition has to be issued as a right.
MANDAMUS
The writ of mandamus is issued to a subordinate court, an officer of
the government, or a corporation or other institution commanding
the performance of certain acts or duties.
Unlike Habeas Corpus, Mandamus cannot be issued against a private
individual.
The writ of mandamus can be used to order the completion of a task
or in other cases, it may require an activity to be ceased.
QUO WARRANTO
Quo warranto is issued against a person who claims or
usurps a public office. Through this writ, the court inquires
‘by what authority’ the person supports his or her claim.
Through this writ, the court enquires into the legality of a
claim of a person to a public office. This writ prevents the
illegal assumption of a public office by an individual.
The court issues the Writ of Quo
Warranto in the following cases:
When the public office is in question and it is of a
substantive nature. A petition against a private corporation
cannot be filed.
The office is created by the State or the Constitution.
The claim should be asserted on the office by the public
servant i.e. respondent.
QUO WARRANTO CASES
In the case of Ashok Pandey v. Mayawati , the writ of Quo Warranto
was refused against Ms Mayawati (CM) and other ministers of her
cabinet even though they were Rajya Sabha members.
Then in the case of G.D. Karkare v. T.L. Shevde , the High Court of
Nagpur observed that “In proceedings for a writ of quo warranto, the
applicant does not seek to enforce any right of his as such nor does
he complain of any non-performance of duty towards him. What is in
question is the right of the non-applicant to hold the office and an
order that is passed is an order ousting him from that office.”
Suspension of Fundamental Rights
Fundamental rights can be suspended in the case of National Emergency as
mentioned under article 352.
The six fundamental rights under Article 19 are automatically suspended in the
case National Emergency is imposed on grounds of war or external aggression
which is stated under article 358.
Article 359 has the clause for suspension of other rights. In that case, a separate
notification has to be issued by the President.
The rights mentioned under Article 20 and 21 can never be suspended.
Constitutional emergency and financial emergency cannot affect the
Fundamental Rights.
THANK YOU!
