RIGHT TO CONSTITUTIONAL REMEDIES i.e. WRITS 2020

    RIGHT TO CONSTITUTIONAL REMEDIES
    RIGHT TO CONSTITUTIONAL REMEDIES

    “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 – it would be this one. It is the very soul and heart of the constitution.” [1]

    – Dr. B. R. Ambedkar

    WHAT IS A WRIT?

    The term WRIT refers to a formal, legal document that orders a person or entity to perform or to cease performing a specific action or deed. Writs are drafted by judges, courts, or other entities that have administrative or judicial jurisdiction. They were developed by as part of the English common law system.

    Writs can be issued by the High Court under Article 32 of the Constitution and by the Supreme Court under Article 226 of the Constitution to enforce a fundamental right. Following are the various types of writs mentioned in the constitution:

    • Habeas Corpus
    • Mandamus
    • Prohibition
    • Certiorari
    • Quo-Warranto
    RIGHT TO CONSTITUTIONAL REMEDIES i.e. WRITS 2020

    Comparison between Article 32 & 226:

    The writ jurisdiction of the Supreme Court differs from that of a High Court in the following aspects:

    1. The Supreme Court can issue writs only for the enforcement of fundamental rights, whereas a High Court can issue a writ not only for the enforcement of fundamental rights, but also for any other purpose, as in for the enforcement of an ordinary legal right. The Supreme Court can issue writs against a person or government throughout the territory of India, whereas a High Court can issue writs against a person residing or against a government or a local authority within its territorial jurisdiction.
    2. Thus in terms of territorial jurisdiction, the purpose of issuing writ by the Supreme Court is wider than that of a High Court, contrary to the enforcement of rights where the jurisdiction of Supreme Court is narrower than that of High Court.
    3. A remedy under Article 32 is in itself a fundamental right. Hence, the Supreme Court cannot refuse to exercise its writ jurisdiction. On the other hand, a remedy under Article 226 is discretionary and hence, a High Court may refuse to exercise its writ jurisdiction.

    In Kannubhai v.State of Gujarat [2], when a two bench judge of Supreme Court ruled that the petitioner complaining of violation of his fundamental right should approach the High Court first rather than the Supreme Court in the first instance. The reason given for this view was that there was a huge backlog of cases pending before the Supreme Court.

    The various types of writs are explained as follows:

    Habeas Corpus

    It is a Latin phrase which means ‘to have the body’ or ‘produce the body’ before the Court. It is an order issued by the court calling upon the person who has detained another to produce him before the court, in order to let the court know on what ground he has been confined and to set him free if there is no legal jurisdiction for the imprisonment.

     In other words, the Court directs the person or authority that has detained another person to bring the body of the prisoner before the court, so that the court may decide the validity, jurisdiction or justification of such detention. This writ is available against both public and private authorities.

    The court may award monetary benefit to the person who has been illegally detained.

    In Rudal Shah v. State of Bihar [3], Rs. 35,000 by way of compensation was given for 14 years detention in jail after acquittal order.

    In A.D.M. Jabalpur v Shivakant Shukla [4], the Supreme Court held that during emergency fundamental rights are suspended and no person has locus standi to move to any court for writ of habeas corpus. Thus, this writ cannot be issued during emergency.

    Mandamus

    It literally means ‘We Command’. It is an order issued by a court to a public authority asking it to perform a public duty imposed upon it by the Constitution or any other law.

    Writ of Mandamus is a judicial remedy which is in the nature of an order from a superior court i.e. Supreme Court and a High Court to any Government, Court, Corporation or public authority to do or to forbear from doing some specific act which that body is obliged under law to do or refrain from doing, and which is in the nature of the public duty or statutory duty.

     This writ is available against all those bodies falling within the definition of State including Parliament, Courts & Tribunals, Government & its officers, local authorities like panchayats, municipalities, educational institutions and other authorities. Although, this writ is not available against the President or Governor of the state for the exercise and performance of powers and duties of his office.

    In Sales Tax Officer v. Kanhaiyalal [5], the officer had collected tax illegally from the petitioner who then sought the remedy. The Supreme Court issued the writ of Mandamus to the Sales Tax officer, thus ordering him to refund the tax.

    Prohibition

    It literally means ‘to forbid’. The writ can be issued only against judicial or quasi-judicial authorities, when such authority exceeds its jurisdiction or tries to exercise jurisdiction not vested in it.

    In East India Commercial Company v. Collector of Customs [6], the Supreme Court observed

    “A writ of prohibition is an order directed to an inferior tribunal forbidding it from continuing with a proceeding therein on the ground that the proceeding is without or in excess of jurisdiction or contrary to the laws of the land, statutory or otherwise.”

    The principle underlying the writ of prohibition is that ‘Prevention is better than cure’. This writ is not available against administrative authorities, legislative bodies and private individuals or bodies.

    Certiorari

    In the literal sense, it means ‘to be certified’ or ‘to be informed’. It is issued by a Higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case. It is issued on the ground of excess jurisdiction or lack of jurisdiction or error of law.

    Thus, unlike prohibition which is only preventive, certiorari is both preventive as well as curative. Like prohibition, certiorari is also not available against legislative bodies and private individuals or bodies.

    In R v. Minister of Transport [7], a minister who was not empowered to revoke a licence, revoked it by passing an order. The Bench quashed the order on the ground that it was without jurisdiction and therefore ultra vires.

    Quo-Warranto

    It is a Latin term which means ‘by what authority’.  By issuing this writ, the person concerned is called upon to show the court by what authority he holds the office or liberty. If the holder has no authority to hold the office, he can be ousted from its enjoyment. The nature of office must be public and of substantive characters. Also, the holder must have asserted his claim to the statutory or constitutional office.

    In Rameshwar v. State of Rajasthan [8], the Supreme Court refused to grant this writ taking into account the facts and circumstances of the case. This writ may also be refused on the ground that suitable alternative remedy is available to the petitioner. Moreover a writ of quo-warranto cannot be refused only on the ground of delay because the appointment of the officer will be illegal and every act will give a fresh cause of action.

    Unlike the other writs, this can be sought by any interested person and not necessarily by the aggrieved person.   

    CONCLUSION: RIGHT TO CONSTITUTIONAL REMEDIES

    One of the most important and fundamental concept in English as well as Indian legal system is ‘Ubi jus ibi remedium’ i.e. wherever there is a right there is a remedy. The right and remedy are two sides of the same coin and they cannot be separated from each other. One of such remedies available to an individual aggrieved by any action of administrative authority is judicial review by way of prerogative remedies.

    These prerogative remedies are provided with writs. The Constitution of India under Article 32 & 226 gives powers to the Supreme Court and High Court to issue prerogative writs in the nature of habeas corpus, mandamus, prohibition, certiorari and quo-warranto. The framer of the Indian Constitution made specific provisions in the Constitution itself empowering the Supreme Court and High Court to issue above writs. Therefore, these remedies are also known as Constitutional remedies.

    RIGHT TO CONSTITUTIONAL REMEDIES

    RIGHT TO CONSTITUTIONAL REMEDIES

    RIGHT TO CONSTITUTIONAL REMEDIES


    RIGHT TO CONSTITUTIONAL REMEDIES

    [1] Ambedkar B.R., CAD Vol. VII

    RIGHT TO CONSTITUTIONAL REMEDIES

    [2] AIR 1987 SC 1159

    RIGHT TO CONSTITUTIONAL REMEDIES

    [3] (1983) 4 SSC 141

    RIGHT TO CONSTITUTIONAL REMEDIES

    [4] 1976 SCR 172

    RIGHT TO CONSTITUTIONAL REMEDIES

    [5] AIR 1959 SC 135

    RIGHT TO CONSTITUTIONAL REMEDIES

    [6] 1963 SCR (3) 338

    RIGHT TO CONSTITUTIONAL REMEDIES

    [7] (1991) 1 All ER 70

    RIGHT TO CONSTITUTIONAL REMEDIES

    [8] 1952 SCR 377

    RIGHT TO CONSTITUTIONAL REMEDIES

    RIGHT TO CONSTITUTIONAL REMEDIES