Article 32

 Article 32

Right to the Constitutional Remedies:

Part-3 of the Indian constitution provides various fundamental rights.

If any fundamental right is violated, the aggrieved party can approach the court for

the enforcement of his fundamental right.

The Supreme Court under Article-32 and High Court under Article-226 issue

various types of writs for the protection of the fundamental rights.

It is explained in:

1) Locus standi and Public Interest litigation

2) Articles-32 and 226

3) Writs

A. Locus Standi and Public Interest Litigation:

Locus Standi:

The expression “Locus Standi” means “Right to move the court”

Generally, a person whose legal right is infringed has a right to move the

court.

However, there are certain circumstances in which any member of the public

can have a right to move the court.

Article-32 and 226 of the Indian constitution do not prescribe specifically

such persons or class of persons, who have the right to move the court.

Thus, the matter of Locus Standi lies within the discretion of courts.

Public Interest Litigations:

It is also known as “Social Interest Litigation”.

The concept of “Public Interest Litigation” was initiated in,

Akhil Bharatiya Soshit Karmachari Sangh

V

Union of India

In simple words, PIL means, any public can move to the court for the public

cause by filing a petition:

a) In the supreme court under Article-32 of the constitution

b) In the High Court under Article-226 of the constitution

c) In the Magistrate court under Section-133 of CRPC.

In SP Gupta

 V

 Union of India

(Judges Transfer Case)

It established the validity of PIL, since then, a good number of PIL petitions

were filed.

In MC Mehta

 V

Union of India

(Ganga Pollution Case)

The Supreme Court appreciated the petitioner MC Mehta, Advocate,

Supreme Court, for filing the PIL petition in the Supreme Court against the

Union of India, Kanpur, and Municipal Corporation for the removal of the

public nuisance caused by the polluted Ganga Water.

B. Article-32 and 226:

Article-32:

Article-32 of the Indian Constitution is a fundamental right placed under

Part-3 of the constitution.

It deals with the “Remedies for the enforcement of rights conferred by Part-3

of the Indian Constitution”.

Article-32 confers a fundamental right to an individual to move to the

Supreme Court for the enforcement of the fundamental right.

It also confers power to the Supreme Court to issue various writs i.e.,

Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto for

the enforcement of the fundament rights.

Under Article-32, the Supreme Court is empowered to relax the traditional

rule of locus standi and allow the PIL petitions.

The Supreme Court awarded the damages by exercising is power under

Article-32 in the following cases:

In Rudul Sha

V

State of Bihar

In this case an acquitted person who was detained for more than 14 years

was awarded exemplary damages of Rs.35000/-

In BhimSingh

V

State of Jammu and Kashmir

In this case, an MLA of Jammu and Kashmir Assembly was awarded an

exemplary damage of Rs.50, 000/- by the Supreme Court for the unlawful

arrest.

Article226:

Article-226 of the Indian Constitution empowers the High Court to issue

various writs like under Article-32 by the Supreme Court.

It also guarantees an individual to move to the High Court for the

enforcement of the fundamental rights or for any other purpose.

Power conferred under Article-226 is wider than Article-32.

Difference between Article-32 and 226:

Article-32: Article-226:

The right guaranteed under Article32 can be exercised only for the

enforcement for the fundamental

right.

The right guaranteed under Article226 can be exercised for the

enforcement of the fundament rights

and also for any other purpose

Jurisdiction of the Supreme court

under Article-32 is a part of Basic

Structure.

Judicial Review of the High Court

with respect to the Administrative

tribunals and special courts forms a

part of basic structure.

Article-32 itself is a fundamental

right.

Article-226 is not a fundamental

right.

C. Writs:

The term “writ” literally means that, it is an order of the court, by which the

court directs an individual or official or an authority to do an act or abstain

from doing an act.

Writs are classifies into 5 types, they are:

1) Habeas Corpus

2) Mandamus

3) Certiorari

4) Prohibition

5) Quo Warranto

1. Habeas Corpus:

The expression “Habeas Corpus” is a Latin word which means “to

produce a body”

If a person is detained unlawfully, his relatives or friends can move to

the court by filing an application under Article-226 in High Court or

under Article-32 in the Supreme Court for the writ of Habeas Corpus.

The court on being satisfied with the contents therein issues the writ

of Habeas corpus.

This writ is in the form of an order directing a person who has

detained, to produce that person i.e., detainee before the court.

He is also asked that let the court know, that by what authority he has

detained that person.

If the cause shown has no legal justification, the court orders

immediately to release that person who is detained.

In Rudul Sha

V

State of Bihar

In this case an acquitted person who was detained for more than 14 years

was awarded exemplary damages of Rs.35000/-

Who can apply for the Writ of Habeas Corpus?

The general rule is that, the person who is detained can apply for the

writ but in certain cases, the application can be made on his behalf by

his friends or relatives.

Scope:

It is the most effective and speedy remedy in the case of unlawful

detention.

The purpose of the writ is not to punish the wrong doer but to protect

the personal liberty of the person detained.

In BhimSingh

V

State of Jammu and Kashmir

In this case, an MLA of Jammu and Kashmir Assembly was awarded an

exemplary damage of Rs.50, 000/- by the Supreme Court for the unlawful

arrest.

2. Mandamus:

The expression “Mandamus” is a Latin word, which means “a

Command” or “the Order”.

Mandamus is a judicial order issued in the form of a command to any

statutory or non-statutory authority asking to carry out a public duty

imposed by law or to refrain from doing a particular act.

It is an important writ to check the arbitrariness of an administrative

action.

Who can file a petition for the writ?

The rule of locus standi is strictly followed except in the PIL.

The petitioner has to prove that he has a right to enforce the public

duty in his favor.

Authorities to which the writ may be issued:

The writ of mandamus may be issued against the government and all

the public authorities (Judiciary, Tribunals, colleges, university etc)

In short, it is available against all the administrative actions.

Conditions:

The petitioner seeking for the writ has to satisfy the following conditions:

a) There must be a public duty on the part of the respondent.

b) Such duty must be absolute.

c) There must be specific demand and refusal.

d) Subsisting Duty.

In Gujarat State Financial Corporation

V

Lotus Hotels (P) Ltd

In this case, the corporation entered into an agreement with lotus hotels to

provide finance for the construction of a hotel and did not release the funds.

The Gujarat High Court issued the writ of Mandamus to release the funds as

agreed.

3. Certiorari:

The expression “Certiorari” is a Latin word which means, “to be

certified”.

It is an order or a command by the Supreme Court or the high court

over the lower courts to correct the illegality of their decisions.

The lower court is directed to submit the records to check whether the

decision made is not illegal or against the principles of natural justice.

If found illegal, the decision is quashed.

Grounds for issuing the writ:

The writ of certiorari may be issued on the following grounds:

a) Judicial error or Lack of Jurisdiction,

b) Improper constitution of such authority

c) If the authority is incompetent,

d) Violation of the principles of National Justice.

Who may apply for the issue of the writ of Certiorari?

Any person or even a firm or a non-statutory body such as the

Managing committee of a school whose legal right has been invaded

and who has been aggrieved by the order complained of, may apply

for certiorari.

In AK Kripak

V

Union of India

The Supreme Court issued the writ of certiorari to quash the selection

test of the Indian Forest Service on the grounds that one of the

selected candidates was ex-officer, member of the selection

committee.

4. Prohibition:

The writ of prohibition is issued to prevent the decision, while the writ

of certiorari is issued to quash the decision already given.

5. Quo Warranto:

The expression “Quo Warranto” means, “By what Authority”.

It is a judicial order asking the person who occupies the public office

to show that by what authority he holds the office.

If it is found that he has no valid title, then the writ of Quo warranto is

issued to him to vacate from the office.

Who can file a petition for the writ?

A writ of quo warranto is to terminate the services of a person from

the office to which he is authorized and is not entitled to hold that

post.

Quo warranto is very powerful instrument for safeguarding against the

usurpation of public offices.

Conditions:

The writ of quo warranto to be issued should satisfy the following

conditions, they are:

a) The office must be a public office.

b) The office must be permanent in character and not terminable.

c) The person must be in actual possession of the office.

d) The person must have held the office contrary to law.

e) Subsequent disqualification.

In Nityanand

 V

Kalil Ahmed

The Punjab High Court held that Quo Warranto lies even to test the

validity of the election.