DR.

RAM MANOHAR LOHIYA NATIONAL

LAW UNIVERSITY, LUCKNOW

2019-2020

CONSTITUTIONAL LAW - I

RIGHT TO CONSTUTIONAL REMEDIES

Submitted to – Submitted by -

Dr. Atul Kumar Tiwari Kushagra Tripathi

Associate Professor Enrolment No. - 180101074

RMLNLU, Lucknow B.A. LL.B. (Honours)

Semester – III, 2nd Year

1
 ACKNOWLEDGEMENT

At the outset, I take this opportunity to thank my esteamed teacher of the subject constitutional
law I – Associate Professor Dr. Atul Kumar Tiwari 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 RMLNLU 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.

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 TABLE OF CONTENTS

INTRODUCTION………………………………………………………………………………..4
ARTICLE 32 IN THE CONSTITUTION OF INDIA AND ITS SCOPE……………………….6

WRIT OF MANDAMUS……………………………………………………………..................10

WRIT OF CERTIORARI………………………………………………………………………..15

WRITS OF PROHIBITION……………………………………………………………………..17

WRITS OF PROHIBITION AND CERTIORARI……………………………………………...19

WRIT OF QUO WARRANTO……………………………………………………………….....21

WRIT OF HABEAS CORPUS…………………………………………………………………...22

CONCLUSION…………………………………………………………………………………...24

BIBLIOGRAPHY………………………………………………………………………………...25

INTRODUCTION

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The modern administration impinges more and more on individual; it has assumed a tremendous
capacity to effect the rights and liberties of the people. There thus arises the need for constantly
adjusting the relationship between the government and the governed so that a proper balance may
be evolved between private interest and public interest. It is the demand of the prudence that
when sweeping powers are conferred on administrative organ, effective control mechanism be
also evolved so as to ensure that the officers do not use their powers in an undue manner or for an
unwarranted purpose. As rightly observed by Lord Denning, “If exercised properly, the vast
powers of the administration may lead to the welfare state; but if abused, they may lead to
administrative despotism and a totalitarian state without proper and effective control an individual
would be without remedy even though injustice is done to him. This would be contrary to the
fundamental concept of Indian legal system in which the maxim *ubi jus ibiremedium’ (wherever
there is a right there is a remedy) has been accepted since long. In fact right and remedy are but
two sides of the same coin and they cannot be disassociated from each other. Administrative, Law
thus provides for control over the administration by an outside agency strong enough to prevent
injustice to the individual while leaving the administration adequate freedom to enable it to carry
on effective government.

An important question thus, which needs to be discussed is, what are the techniques available to
the individual to bring his complaint or grievance against an administrative action within the
cognizance of the courts, and what tools, subject to what conditions and on what basis will the
courts employ to afford relief to the complainant? In what cases do the courts feel that redress to a
complaint is called for?

In India, where the codified statute laws govern most fields of law, judicial control of the
administrative authorities has been least affected by legislation. As a result, the remedies of
English common law have found their way into the Indian legal system. Private law remedies, viz
actions for damages, injunctions and declarations, played a predominant role during British rule,
when the public law remedies i.e. prerogative writs, had for historic reasons a very limited
application. In England the availability of the writs rendered the ordinary law remedies less useful
than in British India, where the writs were confined to three presidency towns.

Due to the restricted use of the writs the courts used much more frequent use of the private law
remedies during British rule. After the adoption of the republican constitution incorporating the

4
provisions of the prerogative remedies, the writs have become more popular than other remedies
in India.

The techniques commonly used for the purpose are writs, appeals, reference to the courts,
injunctions, declarations, suits for damages for tortious actions of the administration and civil
servants, and for breach of contracts between the state and private persons etc. Writs are the most
significant remedy among all. Writs are issued by the Supreme Court and High Courts under the
provisions of Article 32 and 226 respectively. This project focusses on the writ jurisdiction of
Supreme court of India provided under article 32 of the constitution of India. 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’. 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. B.R. 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 importan

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 ARTICLE 32 IN THE CONSTITUTION OF INDIA AND ITS SCOPE
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

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. 1 Supreme court has stated that where relief
through High Court is available under article 226, the party should first approach High Court. 2 The Supreme
Court is constituted as guarantor and protector3 of fundamental rights, and it cannot refuse to entertain
applications seeking protection against infringement of such rights. 4 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'.

1
Kochunni v. State of Madras AIR 1959 SC 725
2
P.N.Kumar v. municipal corp. of Delhi 1987 4 SCC 609
3
Rashid Ahmed v. The Municipal Board, Kairana, AIR 1950 SC 124
4
Ramesh Thapar v. State Of Madras AIR 1950 SC 124
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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.5

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
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. 6 A letter in PIL should be addressed to the court not to an
individual judge.7 PIL cannot be entertained where stand taken was contrary to stand taken by those who are
affected by action.8

Hon'ble Supreme Court of India published circular regarding guideline for filing Public Interest Litigation
under Article 32. The following are the guideline for filing PIL in India. Based on full Court decision dated
1.12.1988 and subsequent modifications the guide lines are: 

No petition involving individual/ personal matter shall be entertained as a PIL matter except as indicated
hereinafter.

Letter-petitions falling under the following categories alone will ordinarily be entertained as Public Interest
Litigation:-

1. Bonded Labour matters

2. Neglected Children.

3. Non-payment of minimum wages to workers and exploitation of casual workers and complaints of
violation of Labour Laws (except in individual cases). 

5
Narinderjit Singh Sahni v. UOI 2002 2 SCC 708
6
Kasturi Lal Ralia Ram JAIN V. State of UP AIR 1965 SC 1039
7
Sachdev v. UOI 1991 1 SCC 605
8
Rameshwar Prasad v. UOI AIR 2006 SC 980
7
4. Petitions from jails complaining of harassment, for (pre-mature release) and seeking release after having
completed 14 years in jail, death in jail, transfer, release on personal bond, speedy trial as a fundamental
right. 

Note-Petitions for premature release, parole etc. are not matters which deserve to be treated as petitions
u/Article 32 as they can effectively be dealt with by the concerned High Court. To save time Registry may
simultaneously call for remarks of the jail Superintendent and ask him to forward the same to High Court.
The main petition may be forwarded to the concerned High Court for disposal in accordance with law. Even
in regard to petitions containing allegations against Jail Authorities there is no reason why it cannot be dealt
with by the High Court. But petitions complaining of torture, custody death and the like may be entertained
by this Court directly if the allegations are of a serious nature.

5. Petitions against police for refusing to register a case, harassment by police and death in police custody.

6. Petitions against atrocities on women, in particular harassment of bride, bride burning , rape, murder,
kidnapping etc.

Note- In such cases where office calls for police report if letter petitioner asks for copy the same may be
supplied, only after obtaining permission of the Hon'ble Judge nominated by the Hon'ble Chief Justice of
India for PIL matters.

7. Petitions complaining of harassment or torture of villagers by co- villagers or by police from persons
belonging to Scheduled Caste and Scheduled Tribes and economically backward classes.

8. Petitions pertaining to environmental pollution, disturbance of ecological balance, drugs, food

adulteration, maintenance of heritage and culture, antiques, forest and wild life and other matters of public
importance.

9. Petitions from riot -victims.

10. Family pensions - All letter-petitions received in the PIL Cell will first be screened in the Cell and only
such petitions as are covered by the above mentioned categories will be placed before a Judge to be
nominated by Hon'ble the Chief Justice of India for directions after which the case will be listed before the
Bench concerned.

If a letter-petition is to be lodged, the orders to that effect should be passed by Registrar (Judicial) (or any
Registrar nominated by the Hon'ble Chief Justice of India), instead of Additional Registrar, or any junior
officer.

To begin with only one Hon'ble Judge may be assigned this work and number increased to two or three later
depending on the workload.
8
 Cases falling under the following categories will not be entertained as Public Interest Litigation and
these may be returned to the petitioners or filed in the PIL Cell, as the case may be:

(1) Landlord-Tenant matters.

(2) Service matter and those pertaining to Pension and Gratuity.

(3) Complaints against Central/ State Government Departments and Local Bodies except those relating to
item Nos. (1) to (10) above.

(4) Admission to medical and other educational institution.

(5) Petitions for early hearing of cases pending in High Courts and Subordinate Courts.

In regard to the petitions concerning maintenance of wife, children and parents, the petitioners may be asked
to file a Petition under sec. 125 of Cr. P.C. or a suit in the court of competent jurisdiction and for that
purpose to approach the nearest Legal Aid Committee for legal aid and advice.

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 WRIT OF 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. 9 It is discretionary and will not be
granted if there is an alternative remedy equally beneficial, convenient and effective.10

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.11

Mandamus in Indian Law prior to the Constitution

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.

9
R. v. Baker (1762) 3 Burr. 1265, 1267.
10
 Syndicate v. Union of India. A.I.R. 1975 S.C. 460 
11
Binny Limited vs. V. Sadasivan 2005 AIR (SC) 3202
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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.12 It will not be issued
where to do or not to do an act is left to the discretion of the authority. 13 It was refused where the
legal duty arose from an agreement which was in dispute. 14 The duty to be enforced by a writ
mandamus could arise by a provision of the Constitution15 or of a statute16 or of the common law.17

(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. 18Even
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.19

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 power20. Again it can be
issued to a municipality to discharge its statutory duty.

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. 21 Mandamus is not available where the
order upon which the alleged right of the petitioner is founded is itself ultra vires. 22 Where
provisions are merely directory, non-compliance with them does not render an act invalid and hence
no mandamus issues.

12
Dr. Rai Shivendra Bahadur v, Governing Body of the Nalunda College, A.I.R. 1962 S.C. 1210. 
13
 Controller of Monghyr v. Keshav Prasad, A.I.R. 1962 S.C. 1694
14
Carlsbad Mineral Water Mfg. Co. v. H.M. Jagtiani, A.I.R. 1952 Cal. 315.
15
Chintaman Rao v. State of M.P., A.l.R. 1951 S.C. 118
16
 State of Bombay v. Hospital Mazdoor Subba, A.l.R. I960 S.C. 610
17
Juggilal Kamalapat v. The Collector of Bombay, A.l.R. 1946 Bom. 280. 
18
Shantabai v. Bombay, A.l.R. 1958 S.C. 532
19
 Calcutta Gas Co. v. State of W.B., A.l.R. 1962 S.C. 1044
20
Rampal v. State of Raj. AIR 1981 SC 121
21
Jiwat Bai & Sons v. G.C. Batra. A.l.R. 1976 Delhi 310
22
Prakaslt v. Principal, A.l.R. 1965 M.P. 217
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 (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.23

(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. 24 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.25

Exceptions to the writ of Mandamus

In India, it will not lie upon the President and the Governor of a State in their personal capacities. 26
However, the Constitution expressly provides that appropriate proceedings may be brought against the
Government of India and the Government of a State. 27 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 legislature.28 Mandamus will not be issued to a legislature to forbid it from passing legislation
repugnant to the fundamental rights.29 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.30 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

23
Kalyan Singh v. State of U.P., A.I.R. 1962 S.C. 1153
24
 Guruswami v. State of Mysore, A.I.R. 1954 S.C. 592
25
Bengal Immunity Co. Ltd. vd. State of Bihar, A.I.R. 1955 S.C. 661
26
 Article 361
27
 Articles 300 and 361
28
 Article 122 (2) and 212 (2)
29
Choteylal v. State of U.P., A.l.R. 1951 All 228
30
Shankar v. Returning Officer, A.I.R. 1952 Bom 277
12
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.31 However, it will not lie to secure performance by a company
of a duty towards its employees which is not of a public nature.32

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.33 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.34Mandamus 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. Union of India 35, 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.36 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". 37 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."

31
State of Bombay v. United Motors. A.I.R 1953 S.C. 252
32
The Praga Toots Corporation v. C.V. immanuel, A.I.R. 1969 S.C 1306
33
State of Bombay v. United Motors, A.I.R. 1951 S.C. 252
34
Veerappa Pillaiv. Raman Rtimin Ltd.. A.I.R. 1952 S.C. 192
35
AIR 1975 SC 460 
36
 Amrit Lal v. Colllector, C.E.C. Revenue, A.I.R. 1975 S.C. 538
37
The Stateman v. Fact finding Committee, A.I.R. 1975 Cal. 14
13
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.

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 WRIT OF CERTIORARI

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 Parlakimedi38 , 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;

(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;

38
AIR 1943 PC 164
15
(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.

16
 WRIT OF 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 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 as “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.

Generally the writ of prohibition is issued on following grounds-

The writ of prohibition can be issued on the following grounds:

(i) Absence or Excess of jurisdiction;

(ii) Violation of the principles of natural justice;

(iii) Unconstitutionality of a Statute;

(iv) Infraction of Fundamental Rights

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.Radhakrishnan39 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

39
AIR 1964 SC 477
17
-fails to exercise its jurisdiction40 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 rights

40
STO V. Shiv Ratan AIR 1966 SC 142

18
 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 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.

This writ is issued to prevent a court or quasi-judicial tribunal from exceeding its jurisdiction, or acting
contrary to natural justice. Its object is prevention rather than cure.

It differs from certiorari not so much in nature as in the fact that it is issuable at a stage when the tribunal is
proceeding with the matter and it has not yet disposed it off. After disposal, the proper writ is certiorari for it
is the decision which is to be quashed.

Writ of prohibition is issued only if there are proceedings pending in a court or tribunal. The grounds on
which the writ of prohibition is issued are the same on which a writ of certiorari is issued.

Difference between Prohibition and Certiorari -

Prohibition and certiorari are much in common. Both the writs are issued with the object of restraining the
inferior courts from exceeding their jurisdiction. The Supreme Court has expressed the difference of the two
writs in Hari Vishnu Kamath vs. Ahmad Ishaque41 in the following terms :

“When an inferior Court takes up for hearing a matter over which it has no jurisdiction, the person against
whom the proceedings are taken, can move the Supreme Court for a writ of prohibition and that an order
will be issued forbidding the inferior court from continuing the proceeding.

On the other hand, if the court hears the case or the matter and gives a decision, the party aggrieved would
have to move the Supreme Court for a writ of certiorari. On that an order will be made quashing the decision
on the ground of jurisdiction.

“When the case is pending before the court but it has not been finally disposed of, the Supreme Court has to
apply both prohibition and certiorari; prohibition to prevent the court to proceed further with the case and
certiorari for what has been already decided.”

Prohibition like certiorari lies only against judicial or quasi-judicial bodies. It does not lie against a public
authority which acts purely on an executive or administrative capacity, nor to a legislative body.

41
Hari Vishnu Kamath vs. Ahmad Ishaque AIR 1955 S.C. 233
19
Thus, the object of the writ of prohibition is prevention rather than cure, while certiorari is used as a cure.

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.

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 WRIT OF 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 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.

Thus writ of Quo Warranto is a mode of judicial control in the sense that the proceedings review the actions
of the administrative authority which appointed the person. The writ is issued to the person ousting him from
holding a public post to which he has no right. It is used to try the civil right to a public post. Accordingly,
the use of the writ is made in cases of usurpation of a public office and removal of such usurper. Conversely,
it protects citizen from being deprived of public office to which he may have a right. A petition for the writ
of Quo Warranto can be filed by any person though he is not an aggrieved person

 In Sonu Sampat v. Jalgaon Borough Municipality 42 , “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 plaintiff, 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

42
(1957) 59 BOMLR 1088
21
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 defendant.

22
 WRIT OF HABEAS CORPUS

The expression “Habeas Corpus” is a Latin term which means ‘to have the body’. If a person is detained unlawfully,
his relatives or friends or any person can move the Court by filing an application under Article 226 in High Court or
under Article 32 in Supreme Court for the writ of Habeas Corpus. The Court on being satisfied with the contents of
the application, issues the writ. This writ is in the nature of an order calling upon the person who has detained another
to produce the latter 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 justification for the confinement. 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

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

c) detention is outside jurisdiction of court.43

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. 44

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.

43
http://indiaopines.com/a-d-m-jabalpur-shukla-emergency-1975-77/
44
http://indiaopines.com/a-d-m-jabalpur-shukla-emergency-1975-77/
23
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.

In Kanu Sanyal v. District Magistrate 45, 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 46, 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 47, 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 48, 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.

45
AIR 1973 SC 2684
46
AIR 1983 SC 378
47
AIR 1993 SC 1960
48
AIR 1999 SC 1522
24
 CONCLUSION

Access to courts has been made much easier through the introduction of Public Interest Litigation. Locus
standi has been made flexible thereby making access to courts much easier. Government would now be
under close scrutiny as various remedies are provided under Article 32 to ensure that fundamental rights are
not infringed. It is a part of the basic structure of our Constitution. The sole object of the Article 32 of the
Constitution of India is the enforcement of the fundamental rights guaranteed under Part III of the
Constitution of India and the purpose has been fulfilled by courts and their decisions. Though mistakes have
been committed by court in interpreting this article (habeas corpus case) it has been corrected accordingly by
constitutional amendment. Hence, it can be said that the intention of Constitution in framing this article
makers has been achieved by courts through its decisions.

Judicial control of administrative action is inherent in our constitutional scheme which is based on rule of
law and separation of powers. It is consider to be the basic feature of our constitution which cannot be
abrogated even by exercising the constituent power of parliament. It is the most effective remedy available
against the administrative excess. Well it is positive sense among the masses that if the administration under
takes any work or acting under discretion power conferred upon it either by statutory rules or under the
provision of the constitution of India. If it is failing to exercise discretion justifiably or if it is abusing its
discretion power to settle its score or gain any private profit due to this discretion power, then only option
before the public is to go to judiciary under Article 32, 136 or 226 of the constitution of India and among
which article 32 has the widest scope and is the most effective one.

25
 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
 http://www.jstor.org/discover/10.2307/4408327?
uid=2134&uid=2478015017&uid=2&uid=70&uid=3&uid=2478015007&uid=60&sid=21104966304
703
 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

26