CERTIFICATE COURSE ON ENFORCEMENT OF

FUNDAMENTAL RIGHTS

ENFORCEMENT OF WRIT PETITIONS

Now that you all have learnt about all the Fundamental Rights provided by our Constitution
we shall move further. Possessing merely theoretical and bookish knowledge is neither the
key to understand our nation in its truest form and nor is the right path to achieve success. It
is very significant to comprehend the actual instances of whatever we grasp. Thus, in this
Module we shall understand about the Enforcement of Writ Petitions and issues concerning
the same. Further, we shall go through what the Supreme Court has to say on the same.
Finally, we shall appreciate the reasons as to why Writs are not being enforced.

INSTANCES OF ENFORCEMENT OF WRITS

A right without a remedy does not have much of a substance. The Fundamental Rights
guaranteed by the Constitution would have been nothing if it had not provided with
effective mechanism for its enforcement. Art. 32 confers Supreme Court to enforce our
Fundamental Rights. Where Art. 32(1) talks about the appropriate proceedings, Art. 32(2)
talks about empowering the Supreme Court to issue orders or directions or writs including
writs of nature such as, Habeas corpus, Mandamus, Prohibition, Quo warranto and
Certiorari, whichever is appropriate for enforcement of petitioner’s rights. Writs do not lie

Enforcement of Fundamental Rights (Module 3)

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to create or establish a legal right, but to enforce a Fundamental Right that has already
been established.

1.
• Habeas Corpus

2.
• Mandamus

3.
• Prohibition

4.
• Quo Warranto

5. • Certiorari

(a) Habeas Corpus – The basic aim of the writ of Habeas Corpus is to secure the
release of a person who has been detained unlawfully or without legal
justification. The great value of this is that it enables an immediate determination
of person’s Right to freedom. Because the court regards personal liberty as one of
the most cherished values of mankind, the Supreme Court in Icchu Devi v. UOI
1
held that, in case of application of this writ, the court does not as a matter of
practice, follow strict rules of pleading. Even a post card by a detenu from jail is
sufficient to let the court enter into legality of detention.

(b) Mandamus – Mandamus is a command issued by a court commanding a public

authority to perform a public duty concerning its office. It is issued to enforce
performance of public duties by authorities of all kinds. The object is to prevent
disorder from a failure of justice and is required to be granted in all cases where
1
1980 AIR 1983
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 law has established no specific remedy and where justice despite demanded has
not been granted. It can be granted only when a legal duty is imposed on the
authority in question and the petitioner has a legal right to compel the
performance of this duty which it is be imperative and not discretionary.

(c) Prohibition – Writ of prohibition is issued to an inferior tribunal prohibiting it

from carrying on with the proceeding on the ground that it is in exclusion or
exceeding its jurisdiction or contrary to the laws of the land, statutory.

(d) Quo Warranto – The writ lies only in respect of public office of a substantive
character. To file a petition for a Quo Warranto, it is not necessary that he should
have suffered a personal injury himself, or should seek to redress a personal
grievance.

(e) Certiorari –It is issued to quash a decision after it is taken by a lower tribunal.
The Supreme Court has emphasized that a writ of such a nature is wholly in
appropriate relief to ask for when the constitutional validity of legislative measure
is being challenged. The proper relief in such a case would be a declaration that a
particular law is unconstitutional and void.

Art. 32 being a Fundamental Right itself has a broad canvas and cannot be diluted or
whittled down by any law. It can be invoked even when a law declares a particular
administrative action as final (Gopalan v. State of Madras2, Prem Chand v. Excise
Comm.3). This means that power of the Supreme Court under Art. 32 is plenary and not
fettered by any legal constraints. If in exercise of these powers, the court commits a
mistake, court has the plenary power to correct it (S. Nagaraj v. State of Karnataka4).
Art. 32(2) confers power on the court in its widest term.

2
AIR 1950 SCR 88
3
AIR 1963 SC 996
4
(1993) Supp. (4) SCC 595
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 “It is not confined to issuing the high prerogative writs”, but “it is much wider and
includes within its matrix power to issue any direction, orders or writs which may be
appropriate for enforcement of fundamental right in question”(AIR 1984 SC 814).

VIEW OF THE SUPREME COURT

The Supreme Court has diluted the efficacy of Article 32 as a technique to challenge a
decision by Quasi Judicial Body. In Ujjam Bai v. State of U.P.5, the court has held that
an assessment of sales tax by Quasi Judicial Authority, acting within its jurisdiction and
under an intra vires law, could not be challenged under Article 32 on ground that it has
misconstrued or misinterpreted the law, because no breach of any Fundamental Right
was involved in such a situation. Such an error can be corrected by way of appeal to

Supreme Court.

The court has power to decide disputed questions of an act arising in writ petition if it so
desires (K. K. Kochunni Moopil Nayar v.State of Madras)6. The reason for this judicial
stance is that disputed question of fact can be decided properly by examining the
pleadings raised by the parties and by taking evidence and such a course not possible in a
summary proceeding like that of a writ petition under Article 32.

Laches or inordinate delay on the part of the petitioner may disentitle him to move writ
petition under Art.32 to enforce his fundamental right. The court refuses relief to the
petitioner on the ground of laches. Because of several consideration unless there is
reasonable explanation of the delay. The aggrieved party should, therefore, file the
petition at the earliest possible time. But there can be exceptional situation where doctrine
of laches may not be taken into account. Each case must depend on its own facts (R.S.
Deodhar v. State of Maharashtra)7. Therefore, there is no fixed period of limitation
applicable. The Apex Court thus applies the rule of Laches in a flexible and not a rigid

5
AIR 1962 SC 1621
6
AIR 1959 SC 725
7
AIR 1974 SC 259
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manner.

By and large fundamental rights are enforceable against the State. The term State has been
defined in Art.12. There are few fundamental rights such as under Arts.17, 21, 23 or 24
which are also available against private persons. In case of violation of any such rights,
the court can make appropriate orders against violation of such rights by private persons.

Over a period of time, the Supreme Court has been taking a liberal view of locus standi.
Art.32 confers a good deal on freedom on the SC to involve its own rules of locus standi.
The petition for a writ of Habeas Corpus which can be made not only by the person who is
imprisoned or detained but by any person provided he is not a complete stranger for
liberating a person from illegal imprisonment (Subramaniam Swamy v. JJ Board)8. The

rule of standing is also relaxed in case of petition for quo warranto.

Why are Fundamental Rights not being enforced?

Fundamental rights constitute a significant part of the Constitution of India. Fundamental

rights are justiciable and guarantee that if one’s right has been violated, he may approach
the court for its enforcement using Article 32 which is again a Fundamental Right itself.

This is important since a Fundamental Right cannot be abridged or repealed even by the
way of a constitutional amendment, if it is considered to be a basic feature of the
Constitution. The petitioner has a choice to move up to the High Court or Supreme Court
under Art. 226 and Art 32, respectively. While discretion of the High Court is wider in
terms of writ power, Supreme Court has to limit its power to contravention of
Fundamental Rights.

As it is well known that Article 32 was called the “soul of the constitution and very heart of
it” by Dr. B.R. Ambedkar, it is embedded by the Supreme Court in its structural doctrine.

8
(2013) 10 SCC 465
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Art. 32 makes Supreme Court the defender and guarantor of the Fundamental Rights by
giving the power to issue writs under the Original Jurisdiction which otherwise is not a thing
if not done by the means of appropriate procedure as under Art 32(1). One would have to
struggle for urgency and important matters from the ladder below which might take them
unforeseeably long.

If the Fundamental Rights are enforced then there would not be any difference between
the lower courts and the apex court. The writ petitions have to be filed when there are no
other remedies and when your Fundamental Right is violated. The Supreme Court has
been given special powers by means of writs to protect your basic rights and being the
apex of all, the crucial matters have to be handled with efficacy. If there are matters lined
up in case there is no provision of Art 32 to enforce other Fundamental Rights, it would
create a ruckus in the present scenario where many file false cases and cases just for the
sake of it.

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