Arts32
to
35:
-
RIGHT
TO
CONSTITUTIONAL REMEDIES
Introduction:
-
It
is
true
that
a
decl declar arat atio ion n of fund fundam amen enta tall righ rights ts is meaningless unless there is eective machinery for the enforcement of the rights. If there is no remedy there is no right at all. It was, therefore, in the tness
of
the
things
onstitution-ma!ers incor"orated
a
that
our
having long
list
of
fundamental fundamental rights have also "rovided "rovided for
an
eective
remedy
for
the
enforcement of these rights under Art32 of the onstitution. Art32 is
itself a fundamental right. Art22# also em"owers all the $igh ourts to issue the
writs
for
the
enforcement
of
fundamental rights. Art32 %&' guarantees the right to move
the
*a""ro"riate
(u"reme
ourt
"roceedings+
for
)y the
enforcement of the fundamental rights conferred
)y
art
III
of
the
onstitution. lause %2' of Art32 confers "ower on the
(u"reme
ourt
to
issue
a""ro"riate directions or orders or writs, including writs in the nature of ha)eas
cor"us,
mandamus,
itself a fundamental right. Art22# also em"owers all the $igh ourts to issue the
writs
for
the
enforcement
of
fundamental rights. Art32 %&' guarantees the right to move
the
*a""ro"riate
(u"reme
ourt
"roceedings+
for
)y the
enforcement of the fundamental rights conferred
)y
art
III
of
the
onstitution. lause %2' of Art32 confers "ower on the
(u"reme
ourt
to
issue
a""ro"riate directions or orders or writs, including writs in the nature of ha)eas
cor"us,
mandamus,
"rohi)ition,
uo-warranto
and
cert certio iora rari ri for for the the enfo enforrceme cement nt of any any of the rights conferred )y art III of the onstitution. nder clause %3' of Art32 arliament may )y law em"ower any other court to e/ercise within the local limits of its 0urisdiction 0urisdiction
all
or
of
the
"owers
e/ercisa)le )y the (u"reme ourt under clause %2'. lause
%1'
says
that
the
right
guaranteed )y Article 32 shall not )e sus"ended
e/ce"t
as
otherwise
"rovided for the onstitution.
Art32 thus "rovides for an e/"editious and
ine/"ensive
remedy
for
the
"rotection of fundamental rights from legislative and e/ecutive interference. ho can a""ly: - ocus (tandi: - 4he traditional rule is that the right to move
the
(u"reme
ourt
is
only
availa)le to those whose fundamental rights are infringed. 4he "ower vested in the (u"reme ourt can only )e e/ercised
for
the
enforcement
of
fundamental rights. 4he writ under which the remedy is as!ed under Art32 must )e correlated to one of the fundamental
rights
sought
to
)e
enforced. 4he remedy must )e sought through a""ro"riate "roceedings. u)lic
Interest
itigation: - 4he a)ove
traditional rule of ocus standi that a "etition under Art32 can only )e led )y a "erson whose fundamental right is
infringed
has
now
)een
considera)ly rela/ed )y the (u"reme ourt in its recent rulings. 4he ourt now "ermits "u)lic interest litigations or social interest litigations at the instance of *"u)lic s"irited citiens+ for the enforcement of constitutional and other legal rights of any "erson or grou" of "ersons who )ecause of their
"overty or socially or economically disadvantaged "osition are una)le to a""roach the ourt for relief. $owever, the ourt said that it would have to )e decided from case to case as to whether the "erson a""roaching the court for relief has *su6cient interest+ and has not acted with mala de or "olitical motives. A)use
of
I:
-
7uidelines:
hile
e/"anding the sco"e of the *ocus standi+ rules his ordshi" 8hagwati, 9. %as he then was' e/"ressed a note of caution also. $e o)served: *8ut we must
)e
careful
to see
that
the
mem)er
of
the
"u)lic,
who
a""roaches the court in case of this !ind, is acting )ona de and not for "ersonal gain or "rivate "rot or "olitical motivation or other o)liue consideration. 4he court must not allow its "rocess to )e a)used )y "oliticians and others+. 4he (u"reme ourt as "rotector and guarantor
of
undamental
;ights:-
nder clause %2' of Art32 the (u"reme ourt
is
em"owered
to
issue
a""ro"riate directions, orders or writs, including writs in the nature of ha)eas cor"us, mandamus, "rohi)ition, uo-
warranto
and
enforcement
of
certiorari any
for
the
fundamental
rights guaranteed )y art III of the constitution.
8y
this
Article
the
(u"reme ourt has )een constituted as
a
"rotector
and
guarantor
of
fundamental rights conferred )y art III.
is
infringement
of
his
fundamental right the court cannot refuse to entertain "etitions see!ing enforcement of fundamental rights. In discharging the duties assigned to "rotect (u"reme
fundamental ourt
in
the
rights words
the of
atan0ali (astri, 9., has to "lay a role of a sentinel on the ui vive. Again, in =aryao >s (tate of . the (u"reme ourt too! it as its solemn duty to "rotect
the
fundamental
right
ealously and vigilantly. (co"e of clause %2' of Art32: - 4he language used in Art32 %2' is very wide. 4he "ower of the (u"reme ourt is not conned to issuing only writs in the
nature
of
ha)eas
cor"us,
mandamus, "rohi)ition, uo-warranto and certiorari.( )ut any direction or order or writ whichever is a""ro"riate to enforce the fundamental rights, nor
it is )ound to follow all the "rocedural technicalities. Alternative ;emedy: - In ?. ?. ?ochuni >s (tate of @adras, the ourt held that Art32 itself )eing a fundamental right
the
ourt
will
give
relief
notwithstanding the e/istence of an alternative remedy. 4he ourts "ower under Art32 %2' is wide enough to order
the
ta!ing
of
evidence,
if
necessary on dis"uted uestions of fact. =elay or aches: - It is fundamental "rinci"le of administration of 0ustice that the ourts will hel" those who are
vigilant a)out their rights and who do not slee" on their right. 4he ourts will refuse to e/ercise their 0urisdiction in favour of a "arty who comes to the ourt after a considera)le delay and is otherwise guilty of laches. 4hus the remedy under Art32 must usually )e sought 4here
within is
no
a
reasona)le
"rescri)ed
time.
"eriod
of
limitation of BC days %as "rovided under the imitation Act' for ling of "etitions under Art32. ;es-9udicata: - ;es 9udicata is a rule of "u)lic "olicy that there should )e nality to )inding decisions of courts
of com"etent 0urisdiction and those "arties to the litigation should not )e ve/ed with the same litigation again. 4he "rinci"le is em)odied in (ection && of the ode of ivil rocedure. If a uestion has )een once decided )y the (u"reme ourt under Art32 the same uestion cannot )e re-o"ened, again under Art22#. In =aryao >s (tate of . it was held that
where
the
matter
had
)een
*heard+ and *decided+ )y the $igh ourt under Art22# the writ under Art32 is )arred )y the rule of res 0udicata and could not )e entertained.
8ut there is an im"ortant e/ce"tion to this rule of res 0udicata. In 7ulam (arvar v. nion of India, the ourt held that the rule of res 0udicata is not a""lica)le in the writ of ha)eas cor"us and where the "etitioner has )een refused a writ from the $igh ourt he may le a "etition for the same writ under Art32. lause
%3':
-
nder
clause
%3'
arliament is authoried )y law to em"ower any other ourt to e/ercise, within
the
0urisdiction,
local any
limits of
the
of
its
"owers
e/ercisa)le )y the (u"reme ourt
under clause %2'. 4he words *any other court+ can only mean any other court
other
than
the
$igh
ourt
)ecause $igh ourts have already )een vested with such "ower under Art22#. lause %1': - According to this clause the right to move the (u"reme ourt for
the
enforcement
fundamental sus"ended
right e/ce"t
of
the
cannot
)e
as
otherwise
"rovided )y this onstitution. 4here is only one situation when this right can )e sus"ended.
hen a "roclamation of emergency under
Art352
is
declared,
the
resident is em"owered under Art35B to declare that the right to move any court for the enforcement of such right conferred )y art III may remain sus"ended for the "eriod during which the "roclamation of emergency is in o"eration. ;I4( &. $a)eas or"us *$a)eas or"us+ is a *atin+ term which literally means *you may have the )ody+. 4he writ is issued in form of an order calling u"on a "erson )y
whom another "erson is detained to )ring that "erson )efore the ourt and to
let
the
ourt
!now
)y
what
authority he has detained that "erson. If the cause shown discloses that detained "erson has )een detained illegally the ourt will order that he )e released 4hus the main o)0ect of the writ is to give uic! and immediate remedy to a "erson who is unlawfully detained )y the "erson whether in "rison or "rivate custody. hen it will lie: - 4he writ of ha)eas cor"us
will
lie
if
the
"ower
of
detention vested in an authority was
e/ercised mala de and is made in collateral or ulterior "ur"oses. 8ut if the detention is 0ustied the $igh ourt will not grant the writ of ha)eas cor"us. If the following conditions are satised the detention is illegal: %a' if the detention is made in accordance with the "rocedure esta)lished )y law. 4he law must )e valid law and the "rocedure must )e strictly followed. %Art2&'. %)' 4he detention is lawful if the conditions laid down in Art22 are com"lied with.
4he detention )ecomes unlawful if a "erson
who
is
arrested
is
not
"roduced )efore the @agistrate within 21 hours of his arrest and he will )e entitled to )e released on the writ of ha)eas cor"us. 4he
legislature
which
de"rives
a
"erson of his "ersonal li)erty )y law must )e com"etent to ma!e that law. If the law is unlawful the detention will )e unlawful. An a""eal lies against an order of the $igh ourt granting or re0ecting the a""lication for issue of the ha)eas
cor"us under Arts &32, &33, &31 or &3#. 2. @andamus 4he word *mandamus+ means *the order+. 4he writ of mandamus is thus an
order
)y
the
su"erior
court
commanding a "erson or a "u)lic authority %including the 7overnment and
"u)lic
cor"oration'
to
do
or
for)ear to do something in the nature of "u)lic duty or in certain cases of a statutory
duty.
or
instance,
a
licensing o6cer is under a duty to issue a licence to an a""licant who fulls all the conditions laid down for
the issue of such licence. 8ut des"ite the fullment of such conditions if the o6cer
or the authority concerned
refuses or fails to issue the licence, the aggrieved "erson has a right to see! the remedy through a writ of mandamus. hen it will lie: - 4hus the writ or order in the nature of mandamus would he issued when there is a failure to "erform mandatory duty. 8ut even in cases of alleged )reaches of mandatory duty the "arty must show that he has made a distinct demand
to enforce that duty and the demand was met with refusal. %&' 4hus a writ of mandamus can only )e granted when there is in the a""licant
a
right
to
com"el
the
"erformance of some duty cast u"on the authority. 4he duty sought to )e enforced must )e a "u)lic duty, that is, duty cast )y law. A "rivate right cannot )e enforced )y the writ of mandamus. %2' 4hus writ of mandamus can )e issued to "u)lic authority to restrain it from acting under a law which has )een declared unconstitutional.
4hus
writ
of
mandamus
can
)e
granted only in cases where there is a statutory o6cer
duty
im"osed
concerned,
u"on
and there
the is a
failure on the "art of that o6cer to discharge the statutory o)ligation. 4he chief function of a writ is to com"el "erformance
of
"u)lic
duties
"rescri)ed )y statute and to !ee" su)ordinate
tri)unal
and
o6cers
e/ercising "u)lic functions within the limits of their 0urisdiction. It follows, therefore, that an order of mandamus may
)e
issued
to
com"el
the
authorities to do something which
im"oses a legal duty and aggrieved "arty has a legal right under the statute to enforce its "erformance. 4he $igh ourts have the "ower to issue a writ of mandamus where the government or a "u)lic authority has failed to e/ercise e/ercised
the
or
has wrongly
discretion
conferred
u"on it )y a statute or a rule or a "olicy decision of the 7overnment or has e/ercised such discretion mala de or on irrelevant considerations or )y
ignoring
the
relevant
considerations and materials or in such a manner as to frustrate the
o)0ect of conferring such discretion of the
"olicy
for
im"lementing
such
discretion. hen it will not lie: - A writ of mandamus will not )e granted in the following circumstances: %&'
hen
the
duty
is
merely
discretionary in nature the writ of mandamus will not lie. %2' A writ of mandamus does not lie against a "rivate individual or any "rivate organiation )ecause they are not entrusted with a "u)lic dly.
%3' A writ of mandamus cannot )e granted
to
enforce
an
o)ligation
arising out of contract. 3. rohi)ition A writ of "rohi)ition is issued "rimarily to "revent an inferior court from e/ceeding its 0urisdiction, or acting contrary to the rules of natural 0ustice. It is issued )y a (u"erior ourt to inferior courts for the "ur"ose of "reventing
inferior
court
from
usur"ing a 0urisdiction with which it was not legally vested, or in other words to com"el inferior courts to !ee"
within
the
limits
of
their
0urisdiction. 4hus the writ is issued in )oth cases where there is e/cess of 0urisdiction
and
where
there
is
a)sence of 0urisdiction. 4he dierence )etween the two writs was, e/"lained )y the (u"reme ourt in the following words: *hen an inferior court ta!es u" for hearing a matter over which it has no 0urisdiction, the "erson against whom, the "roceedings are ta!en can move the (u"reme ourt for a writ of "rohi)ition and on that, an order will )e issued for)idding the inferior court from continuing the "roceedings.
for
uashing
already )een decided.
what
had
4hus
the
"rohi)ition
o)0ect
of
is
short
in
the
writ
of
"revention
rather than cure, while certiorari is used as a cure. here the defect in the 0urisdiction is not a""arent, where the a""ellant is guilty of su""ression of material fact, or where the writ would )e futile, the court may refuse to grant the writ. 8ut it can )e granted almost as a matter of right where it is shown that inferior tri)unal is acting in e/cess of its 0urisdiction. rohi)ition, li!e certiorari, lies only against
0udicial
and
uasi-0udicial
)odies. It does not lie against a "u)lic authority which acts "urely in an e/ecutive or administrative ca"acity, nor to a legislative )ody. 1. ertiorari A writ of certiorari is issued )y a (u"erior ourt %(u"reme ourt and $igh ourts' to an inferior court or )ody
e/ercising
0udicial
or
uasi-
0udicial functions to remove a suit from such inferior court or )ody and ad0udicate u"on the validity of the "roceedings or )ody e/ercising 0udicial or uasi-0udicial functions. It may )e used )efore the trial to "revent an
e/cess or a)use of 0urisdiction and remove the case for trial to higher ourt. It is invo!cd also after trial to uash an order which has )een made without 0urisdiction or in violation of the rules of natural 0ustice. 7rounds on which writ can )e issued: 4he writ of certiorari is issued to a 0udicial or uasi-0udicial )ody on the following grounds: %a' here there is want or e/cess of 0urisdictionD %)'
here
there
is
violation
of
"rocedure or disregards of "rinci"les of natural 0usticeD
%c'
here
there
is
error
of
law
a""arent on the face of the record )ut not error of a fact. 5. Euo warranto 4he
words
*uo warranto+
means
*what is your authority+. 8y this writ a holder of an o6ce is called u"on to show
to
the
court
under
what
authority he holds the o6ce. 4he o)0ect of the writ of uo warranto is to "revent a "erson to hold an o6ce which he is not legally entitled to hold. If the inuiry leads to the nding that the holder of the o6ce has no valid title to it, the ourt may "ass an order
"reventing the holder to continue in o6ce and may also declare the o6ce vacant. If the holder of a "u)lic o6ce was initially disualied to hold that o6ce, the writ of uo warranto would not )e issued if at a su)seuent stage that disualication was removed and after the removal of the disualication the incum)ent
concerned
could
have
)een a""ointed on the same "ost. ho can a""ly: - A writ of
uo
warranto can )e claimed )y a "erson if he satises the ourt that: -
