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In the Kesavananda Bharati v. State of Kerala [1] case in 1973, the Supreme Court, overruling a
previous selection of 1967, held that the Fundamental Rights can be amended, the problem to judicial
evaluate in case such a change violated the primary shape of the constitution. The fundamental Rights
may be improved, removed or otherwise altered through a constitutional modi cation, surpassed with
the aid of a two-thirds majority of each house of Parliament. The imposition of a nation of emergency
may additionally result in a transient suspension any of the Fundamental Rights, excluding Articles 20
and 21, by using the order of the President.

Constitutional Review

At the time of Independence which India got from British’s on 15th August 1947. One of the most
signi cant task for the Indians was to frame its own Constitution to govern India. Constitutional Review
was one of the most dilemmatic topics. Either legislative made laws should be put under judicial review
or supreme body of judiciary “Supreme Court” 5-6 judges should judge a law either good or bad.

Dr. B. R. Ambedkar, the Chairman of the drafting committee, said,

The system of judicial review of administrative action has been inherited from Britain. It is on this
foundation that Indian the Indian Courts have built the superstructure of the control mechanism.
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One of the most signi cant parts guaranteed by our constitution is “Fundamental Rights”. It is MathWorks
embodied in Part III of our esteemed constitution. Guarantee civil rights to all Indians, and prevent the
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nation from encroaching on man or woman liberty whilst concurrently placing upon it an obligation to
guard the citizens’ rights against encroachment by way of society. The purpose of the Fundamental “We are placed in two di cult positions. One is to give the judiciary the authority to sit in
Rights is to preserve individual liberty and democratic principles based on equality of all members of judgment over the will of the legislature and to question the law made by the legislature on the
society. Dr. Ambedkar said that the responsibility of the legislature is not just to provide fundamental ground that it is not good law, in consonance with fundamental principles. Is that a desirable
rights but also and rather, more importantly, to safeguard them. The obligation on the judiciary body principle? The second position is that the legislature ought to be trusted not to make bad laws. It
and the governmental bodies to check that there is no violation of fundamental rights. The Supreme is very di cult to come to any de nite conclusion. There are dangers on both sides. For myself, I
court of India and High courts have the power to issue di erent forms of the writ to ensure proper cannot altogether omit the possibility of a Legislature packed by party men making laws, which
regulation of fundamental rights. The Fundamental Rights aren’t absolute and are a concern to may abrogate or violate what we regard as certain fundamental principles a ecting the life and
a ordable regulations as essential for the safety of public interest. liberty of an individual. At the same time, I do not see how ve or six gentlemen sitting in the
Federal or Supreme Court examining laws made by the Legislature and by dint of their own
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individual conscience or their bias or their prejudices be trusted to determine which law is good Writ of habeas corpus can be invoked not only against the state but also against any individual who is
and which law is bad.” holding any person in unlawful custody or detention. In such circumstances, it is the duty of the police to
make necessary e orts to see that the detention is got released but, if despite such e orts if a person
Nehru opted for a restricted scope for judicial review, Ambedkar doubted about the wisdom of giving to
is not found, the police cannot be put under undue pressure to do impossible.
Parliament freedom to lay down any procedure and any law restricting liberty. On the contrary,
Ambedkar’s ght was not only against British Rule but also against the tyranny of the religious and
Writ of Quo Warranto
political majority and social injustice that the pre-British indigenous regimes had perpetrated.
Therefore, he was bound to be skeptical of legislative supremacy and wanted a counter-majoritarian
The term quo warranto means what is your authority. The writ of quo warranto is used to judicially
safeguard such as judicial review.
control executive action in the matter of making appointments to public o ces under relevant

As regards with the establishment of Supreme Court was considered with the power of judicial review statutory provisions. When a certain person is holding a public o ce but he is not entitled to hold that

of the constitution. An ad hoc committee was created of ve members which bestowed the power of o ce then the court can issue this writ. Under this writ that particular person will need to show under

judicial review to the judiciary. The power of constitutional review was basically granted to judiciary which statutory provision he is entitled to hold that o ce. If he fails in order to do so then the court can

body in order to safeguard the fundamental rights. remove him/her from that o ce and can order to make that o ce vacant.

Grounds for issuing this writ

Various Forms of the writ –
Quo warranto prevents illegal usurpation of public o ce by an individual. The necessary ingredients to
1. Writ of Habeas Corpus be satis ed by the court before issuing a writ is that the o ce in question must be public, created by
2. Writ of Quo Warranto the constitution or a law and the person holding the o ce is not legally quali ed to hold the o ce in
3. Writ of Mandamus clear infringements of provisions of the constitution or the law.

4. Writ of Certiorari
Writ issued against
5. Writ of Prohibition
It is the person against whom a writ of quo warranto is directed, who is required to show by what
Writ of Habeas Corpus authority the person is entitled to hold the o ce. While issuing such a writ, the High court merely
makes a public declaration of the illegality of the appointment and will not consider other factors, which
The Latin term habeas corpus means ‘you must have the body ‘and a writ for securing the liberty was may be relevant for the issuance of a writ of certiorari.
called habeas corpus ad subjiciendum. This writ is issued by the court which directs the authority or the
government body which has detained the person to present him in front of the court so that a proper Writ of Mandamus

justice could be imparted to that person.

This writ is basically issued by the court to direct the authority to do the work assigned to the particular
Ground for the issue of this writ. o ce. Issued by the court to direct the authority to perform the duty imposed on it by law.

This writ is basically issued by the court when the person detained is not presented in front of the Grounds for issuing this writ
magistrate within 24 hours of his/her detention. Failure to do so would entitle the arrested person to be
released. Mandamus can be issued when the Government denies to itself a jurisdiction which it undoubtedly has
under the law, or where an authority vested with a power improperly refuses to exercise it. The function
In Gopalan v. Government [2] of India, the Supreme Court ruled that the earliest date with reference to of mandamus is to keep the public authorities within the limits of their jurisdiction while exercising
which the legality of detention may be examined is the date on which the application for the same is public functions.
made to the court.
The writ can be issued against
Writ invoked against
Mandamus can be issued to any kind of authority in respect of any type of function – administrative,
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legislative, quasi-judicial, judicial Mandamus is used to enforce the performance of public duties by /
public authorities. Mandamus is not issued when Government is under no duty under the law.
Writ of Certiorari
A writ of certiorari has much in common with a writ of prohibition. The only di erence between the
two is, whereas a writ of prohibition is issued to prevent an inferior court or tribunal to go ahead with
the trial of a case in which it has assumed excess of jurisdiction, a writ of certiorari is issued to quash the
order passed by an inferior court or tribunal in excess of jurisdiction.
Writ of Prohibition
A writ of prohibition is issued by a superior court to an inferior court or tribunal to prevent it from
exceeding its jurisdiction and to compel it to keep within the limits of its jurisdiction.
Grounds for issuing this writ
A writ of prohibition is normally issued when inferior court or tribunal
a. Proceeds to act without jurisdiction or in excess of jurisdiction
b. Proceeds to act in violation of rules of natural justice or
c. Proceeds to act under a law which is itself ultra vires or unconstitutional or
d. Proceeds to act in contravention of fundamental rights.
Non-Constitutional Review
Under the non-constitutional review, the courts have the power to issue di erent types of order such as
follows.
1. Injunction
2. Declaration
3. Suit for Damages
Injunction
Meaning – An injunction is a court order which orders a company or character to forestall doing (known
as a “prohibitory injunction”) or to do (an “obligatory injunction”) a selected act or factor. A party who
breaches an injunction can be held in contempt of courtroom which in some instances can cause
imprisonment.
Requirements
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In maximum jurisdictions, an injunction will not be granted until the party seeking the injunction can
prove that their purpose irreparable injury if the court does no longer supply the injunction. Irreparable
harm manner that the harm in icted on one party is so horri c that no nancial or another sort of fee is
a good enough reward for putting up with the instances. Similarly, the birthday party needs to display
there may be no di erent treatment available. Moreover, the party ought to demonstrate that if the
court balances the events’ interests, the balance will tilt in favor of the party looking for the injunction.
Types of injunction
There are special varieties of injunctions: a preliminary injunction, a brief restraining order, and an
everlasting injunction.
A “preliminary injunction” is one which is given to a party prior to an ordeal. Considering the fact that a
full trial has no longer but occurred, the courts are commonly reluctant to issue this type of injunction
unless its miles virtually important and tremendous damage may also occur without the preliminary
injunction.
Every other sort of injunction is called the “Temporary restraining order”. This form of the injunction
could be very constrained in time and scope. The reason for the transient restraining order is to o er
the court time to study the matter with a view to determine whether or not to grant an initial injunction.
Then again, a “Permanent injunction” is one granted after the trial regarding the matter. An everlasting
injunction can be issued after a preliminary injunction or temporary restraining order. If a permanent
injunction is granted, it means that the party must both prevent acting and start appearing in a positive
manner completely.
Declaration
The declaration is a type of court notice via which the court declares or orders something. A declaration
is a form of legal notice. A declaration is a form of non-constitutional review via which the court has the
power to declare something as valid or invalid. If some law is inconsistent with the established
fundamental rights then the court has the power to declare it as invalid. So basically declaration is a
legal notice which determines what is valid and what is invalid.
Suit for Damages
Meaning
In the event of f breach of contract; the aggrieved party besides rescinding the contract can claim for damages.
Damages are monetary compensation allowed for loss su ered by the aggrieved party due to the breach of
contract.
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 The object of the court in awarding damages for breach is that the aggrieved party may be put in the nancial 7. Liquidated Damages and Penalty – Some time, in order to avoid delay in the
position which would have existed had there been no breach of contract.
assessment and payment of damages, at the time of formation of contract, the parties to
The law does not punish a party because he has broken a contract but f, by reason of his wrongful act, the other
a contract mutually agree to stipulate or specify sum, which will become payable by the
party has su ered any pecuniary (monetary) loss, the court will compel the party in breach to compensate the
loss by paying damages to the other party. party guilty of breach.
8. Stipulations for Interest – A stipulation for payment of interest in case of default is not
Case law – Hadley v. Baxendale Case [3] in the nature of a penalty, if the interest is reasonable.

Facts— H’s mill was stopped due to the breakdown of a shaft. He delivered the shaft to B, a common Article by- Shubhendu Shekhar
carrier, to be taken to a manufacturer to copy it and make a new one. H had not made it known to B that
delay would result in a loss of pro ts. By some neglect on the part of B, the delivery of the shaft was National Law University, Jodhpur
delayed in transit beyond a reasonable time.
Cases
Held – B was not liable for loss of pro ts during the period of delay as the circumstances communicated
to B did not show that a delay in the delivery of shaft would entail loss of pro ts to the mill.
Kesavananda Bharati v. the State of Kerala (1973) 4 SCC 225.
Gopalan v. Government 1966 AIR 816 1966 SCR (2) 427.
TYPES OF DAMAGES Hadley v. Baxendale EWHC J70, (1854) 156 ER 145.

In case of the breach of contract following di erent types of damages can be awarded to the aggrieved Sources
party. They are
1. Adjudication of a claim for damages under, Sections 73, 74 and 75 of Indian Contract Act,
1. Ordinary Damages – Ordinary damages are. Those which naturally arise in the usual
1872, Manupatra
course of things from such breach. The measure of ordinary damages is the di erence
2. Stevens, Frederick W. “Proper Use of the Writ of Injunction vol. 14, no. 8, 1908, pp. 577–
between the contract price and the market price on the date of the breach
583. JSTOR.
2. Special Damages – When there is certain special or extraordinary circumstances present
3. Legalserviceindia.com-types-of-writs-in-Indian-constitution.
and their existence is communicated to the promisor, the non-performance of the
4. http://scconline.com/post/tag/article-226/
promise entitles the promisee to not only the ordinary damages but also special
damages that may result therefrom.
3. Exemplary or Punitive or Vindictive Damages – They are not proportionate to the
Disclaimer– This document is intended to provide information only. If you are seeking advice on any matters relating
actual pecuniary loss sustained by the aggrieved party but are in icted by way of to information on this website, you should contact us directly with your speci c query or seek advice from quali ed
punishment. professionals only. We have taken all reasonable measures to ensure the quality, reliability, and accuracy of the
4. Nominal Damages – Nominal damages are awarded in case of breach of contract where information in this document. However, we may have made mistakes and we will not be responsible for any loss or
there is only a technical violation of the legal right, but no substantial loss is caused damage of any kind arising because of the usage of this information. Further, upon discovery of any error or
thereby. The damages granted in such cases are called nominal because they are very omissions, we may delete, add to, or amend information on this website without notice.

small, say, a rupee.

5. Damages for Deterioration Caused by Delay – In the case of deterioration caused to
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goods by delay, damages can be recovered from carrier even without notice.
6. Damages for Inconvenience and Discomfort – When a party has su ered physical
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discomfort and inconvenience as a result of breach of contract, that party can move a
suit for claiming compensation.
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Author: Shubhendu

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