Constitutional

remedies
Articles 32 to 35
“If I was asked to name any particular Article in this Constitution as the
most important – an article without which the constitution would be a
nullity –I would not refer to any other Article except this one. It is the very
soul of the constitution and the very heart of it”, Dr. B. R. Ambedkar. In
Constituent Assembly Debates.
Introduction
Fundamental Rights without remedy Rights meaningless. Remedies make
the rights real.
Article 32(1) The right to move the Supreme Court by appropriate
proceedings for the enforcement of the rights conferred by this Part is
guaranteed
Art. 32(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
Art. 32 (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)
Art. 32(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution
Difference between Article 32 and 226 of the Constitution- Art. 32 is itself a fundamental Right,
while Article 226 is a Constitutional right. Secondly, the writ jurisdiction of Supreme Court is
narrower compared to Writ Jurisdiction of High Courts under Art 226. We can approach Supreme
only if there is violation of fundamental rights under part three of the Constitution. But we can
approach High Courts for violation of fundamental rights as well as violation of other legal rights as
well. The Supreme Court verdict will be law for whole of India, whereas the High Court verdict
shall be law only for that state.
Dynamic Approach of Supreme Court under Public Interest Litigation
The traditional rule of Locus standi that a petition under Art. 32 can only be filed by a
person whose fundamental right has been infringed has now been considerable relaxed
by the Supreme Court. The Court now permits Public Interest Litigation (PIL) or Social
Interest Litigations at the instance of Public Spirited Citizens for the enforcement of
Constitutional rights or other legal rights of any persons or group of persons who
because of their poverty or socially or economically disadvantaged position are unable to
approach the court for relief.
A. B. S. K. Sangh (Rly) v. UOI, it was held that even a unregistered association could
maintain a writ petition under Art. 32 of the Constitution.
Judges Transfer Case, the Court held that any member of public having sufficient
interest can approach the court for enforcing constitutional or legal rights of other
persons and redressal of common grievances.
Jafar Iman Naqvi v. Election Commission Of India
Avishek Goenka v. UOI
Judicial Activism
Hussainara Khatoon v, State of Bihar
Murli S. Deora v. UOI
Lakshmi Kant Pandey v. UOI
M. C. Mehta v. State of T. N.
Sheela Barse v. UOI
Taj Trapezium Case
Kinds of Writs
1. Habeas Corpus
2. Mandamus
3. Quo-Warranto
4. Prohibition
5. Certiorari
Writ will not be granted-
6. Res judicata
7. Alternative efficacious remedy available
8. Question of fact
9. Inordinate delay and laches
Habeas Corpus
• Prerogative writ
• Release of person who is illegally detained
• Habeas Corpus subi di cendum- You may have the body
• Remedy for person who has been wrongfully detained or restrained
• Writ commanding a person or jailer to produce a person before court and submit
day and cause of imprisonment or detention.
• Personal liberty is very important to ever person.
Kanu Sanyal v. District Magistrate, Darjeeling, in this case the Supreme Court held
that while dealing with the application of writ of habeas corpus, production of body
of person alleged to be unlawfully detained was not essential.
Purposes when writ can be granted
1. To check the validity of detention
2. Securing custody of lunatic or minor
3. Detention in breach of privilege
4. Detention during emergency
Who can apply for the writ?
Grounds
5. Applicant in custody
6. Government or Private person
7. Interested person not a stranger
8. Postcard
9. No successive applications
10. No compliance with law
When writ does not lie?
2. Mandamus
It in an order of the superior court to person or public authority. It is a order to do or
forbear from doing something in the nature of public duty in certain cases of statutory duty.
When does it lie?
When there is failure to perform mandatory duty
1. Some duty cast on the public authority.
2. The duty has to be a absolute public duty.
3. There has to be specific demand and refusal.
4. There has to be a clear right to enforce.
5. The right must subsist till the date of filing of the petition.
6. The right should subsist in the petitioner.
When the writ shall not lie?
1. When there is a discretionary duty.
2. Does not lie against private individual or organization.
3. Cannot be granted against contractual obligations.
State of M. P. v. Mandawara, in this case the government had discretion to
pay Dearness Allowance. In this case Supreme Court held that this writ
does not lie against discretionary powers.
Mrs. Santosh Singh v. UOI, the court held that the writ cannot be issued
for introduction of moral science as a compulsory subject in school
curriculum. This writ is a remedy only for violation of fundamental rights.
3. Quo Warranto
The word means what is your authority. By this writ the holder of the office is called upon
to show to the Court under what authority he holds the office. The object of the writ is to
prevent a person to hold a office which he is not legally entitled to hold. If the inquiry
leads to finding that the holder of the office has no valid title to it, the Court may pass an
order preventing the holder to continue in the office and declare the office vacant.
When does the writ lie?
1. The office in question must be a public office.
2. It is held by a person without legal authority.
3. Not available against private person.
It is not necessary that the person has to be personally aggrieved or interested in the
office to file this writ.
G. D. Karkare v. Shevde, in this case it was held that the writ of quo
warranto can lie even at the instance of a private person although he is
not personally aggrieved or interested in the office. Any member of
public can challenge the right of a person to hold a public office.
The writ cannot be issued as a matter of course.
Central Electricity Supply Utility of Odisha v. Dhobei Sahoo, in this
case it was held that after a person ceases to hold a office by virtue of
Quo Warranto, he shall be entitled all lawful remuneration for the
period he has served in the office.
4. Prohibition
5. Certiorari
Both the writs are issued by Superior Courts against the Inferior courts or body exercising judicial or quasi judicial
functions.
Grounds on which it can be issued-
1. Where there is want of jurisdiction.
2. Where there is excess of jurisdiction.
3. Abuse of jurisdiction.
4. Violation of principles of Natural justice.
5. Error apparent on the face of the records.
6. Fraud.
Difference between Prohibition and Certiorari-
In case of Certiorari, the subordinate court has passed an order on any of the above grounds and the Supreme
Court orders to quash it. In case of Prohibition the matter is still pending before a Subordinate court and Supreme
Court asks the Court not to proceed further with the case on any of the above grounds.