Article 32: The Soul of the Constitution of India

The Soul of the Constitution of India: Article 32

This article is written by Vikranta Pradeep Barsay student of National Law University and Judicial Academy, Assam. In this article he explained article 32 of the constitution of India.

What is Article 32?

The constitution of any country serves a three-fold purpose:

  1. The constitution breaks a country’s citizens from their past[1] (political independence from not only the socio-economic and intellectual control but also political and moral vision of the preceding government[2] (ex: totalitarian, dictatorial, monarchical, authoritarian, etcetera)) while outlining a future roadmap for the said citizens.
  2. The constitution establishes a certain form of government, wherein the division of power and authority between the primary organs of the country is clearly delineated and defined within the constitution.[3] For instance, the Constitution of India establishes a quasi-federal, parliamentary form of government, wherein it demarcates the authority of the Legislative, the Executive and the Judiciary. The Doctrine of Separation of Powers or Trias Politica was first coined by French philosopher, named, Charles-Louis de Secondat, baron de La Brède et de Montesquieu in 1785 in his book ‘Esprit des Lois.’[4]

The doctrine buttresses the independence of each organ of the government machinery within its respective sphere or jurisdiction, wherein the Legislative (inclusive of the Central Parliamentary bodies of the Lok Sabha and the Rajya Sabha along with the State Legislative Assemblies), the Executive (inclusive of the President along with the individual State Governors) and the Judiciary (inclusive of the Supreme Court of India along with the individual High Courts and their subsequent Subordinate Courts) exist within their respective constitutional limits.[5]

It is worth noting that Article 50 of the Constitution of India mandates the ‘State’ (as defined in Article 12 of the Constitution of India) to separate the Executive from the Judiciary. The provisions under Article 122 and Article 212 prohibit any court of law to question the validity of any proceeding within the Parliament and the State Legislative Assembly respectively; similarly, Article 121 and Article 211 bar the Parliament and the State Legislative Assembly from discussing the conduct of any Judge from either the Supreme Court of India  or the High Court.

Article 361 of the Constitution of India acquits the President of India and the Governor of any state from any liability that arises from the exercise and performance of their constitutional powers. Although the Constitution of India does not explicitly specify the Doctrine of Separation of Powers in any article, the aforementioned provisions champion the idea of independence between the three organs of the government.

Dr Durga Das Basu held two propositions within the Constitution of India: a) No organ of the government should exercise any power or authority that properly belongs to either of the remaining organs of the government and, b) The Legislative should never delegate its powers.[6]

  1. The third purpose of the Constitution of any country is to protect the present and the future of its citizens.[7] The Constitution confers upon its citizens some Fundamental Rights that are immutable in nature. The world’s oldest written constitution (the United States of America) was drafted between May 25, 1787, and September 17, 1787, wherein the thirty-nine delegates (including the thirty-four delegates of the Continental and Confederation Congress) of the Federal Constitutional Convention, Philadelphia became the subsequent signatories of the constitution, which included Benjamin Franklin, Jonathan Dayton, George Washington, etcetera.[8]

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Although the framers of the aforementioned constitution had neither the experience nor the reference while drafting the constitution, it was the foresight of the Founding Fathers to limit the powers of the newly institutionalized federal government while protecting the fundamental rights and freedoms of its citizens, residents and foreign visitors.[9] The Bill of Rights was enforced on December 15, 1791, wherein Speech, Religion, Possession of Arms, Assembly including the Protection against Double Jeopardy, Self-Incrimination, Deprivation of  Life & Liberty without the due process of the law were held as Fundamental Rights.[10] Similarly, Part III of the Constitution of India borrows heavily from the Bill of Rights, wherein six major Fundamental Rights have been conferred upon the citizens of India:[11]

  1. a) Right to Equality (Article 14 to Article 18).
  2. b) Right to Freedom (Article 19) along with Rights of Criminal Convicts (Article 20), Right to Protection against Arbitrary Arrests and Detention (Article 22) and, Right to Protection of Life and Personal Liberty (Article 21).
  3. c) Rights against Exploitation: Barring Children (below the age of 14 years) from participating in any Hazardous Profession (Article 24) along with Barring any Human Trafficking/ Forced Bonded Labour that violates Human Dignity (Article 23).
  4. d) Right to Religion and Faith (Article 25 to Article 28).
  5. e) Right to Protection of the Religious, Cultural and Educational interests of the Minority Communities (Article 29 and Article 30).
  6. f) Right to Constitutional Remedies (Article 32 to Article 35).

It is worth noting that the Fundamental Rights plead for an all-round, intellectual and moral, development of all citizens of India, Additionally, the Fundamental Rights are protected against any infringement by either the political government or an individual; this proscribes the chrysalis of any authoritarian/ totalitarian government while championing the Rule of the Law (Constitution of India).[12]

It is worth understanding that India’s freedom struggle ensued not only against the imperialistic and repressive  British Raj but also against internal socio-cultural ills like caste-based discrimination and gender-based extirpation.[13] Fundamental Rights turned out to be a quantifiable privilege of Equality, Liberty and Fraternity, which was seldom given to Indians in the pre-Independence era.[14]

Dr B. R. Ambedkar in his last speech to the Constituent Assembly on November 25, 1949, said that Liberty, Equality and Fraternity form the trinity of social democracy, wherein the elimination of Equality and Fraternity will result in the despotism of power with a few powerful entities, the elimination of Liberty from Equality will thwart individual development and the withdrawal of Fraternity alone will destabilise the natural course of Equality and Liberty.[15] Dr B. R. Ambedkar called for the conformity to the constitutional methods to achieve socio-economic objectives while abandoning the unjustifiable, unconstitutional ‘Grammar of Anarchy.’[16]

It can be argued that Part III of the Constitution of India bears out the aforementioned dual fronts of freedom struggle, wherein the social democracy can be maintained if and only if no citizen of the said democracy relinquishes their fundamental liberties and honours at the feet of either a great man or a great institution.[17] In a nutshell, the Fundamental Rights within a constitution creates a blueprint for a citizen’s future, wherein the newly formed political structure (social democracy in the case of India) is upheld.[18]

No other article in the Constitution of India yokes the aforementioned three-fold purpose of the constitution as Article 32. Article 32, Sub-Section 1 entitles each citizen of India to move to the Supreme Court of India for the protection and enforcement of the Fundamental Rights within Part III of the Constitution of India, wherein the fundamental liberties cease to have any meaning if it can be deliquesced by the state.[19] Article 32 guarantees a future roadmap where the citizens have the liberty and freedom to decide on their socio-politico-economic development; similarly, the provisions of the article safeguard the trinity of social democracy as emphasized by Dr B. R. Ambedkar.

The extermination of Article 32 from the constitution will jeopardize the guarantee of Liberty, Equality and Fraternity; this will in turn destabilize the foundation of the constitution. In the case of the L Chandra Kumar v. Union of India & Ors. (1997) 3 SCC 261, a seven-judge constitutional bench (Chief Justice A. M. Ahmadi, Justice M. M. Punchi, Justice K. Ramaswamy, Justice S. P Bharucha, Justice S. Saghir Ahmad, Justice K. Venkataswami and Justice K. T. Thomas) declared that the authority of Judicial Review under Article 32 is not only the integral part of the Constitution of India but also the essence of the basic structure of the said constitution.

The aforementioned bench recognized the role of the Judiciary as the interpreter of the Constitution of India, wherein it is the duty of the Judiciary to curb any action of either the Executive or the Legislative within their constitutional limits placed.

The provisions under Article 32 allow the Supreme Court of India to exercise its authority of Judicial Review in three basic formats: a) The Supreme Court acts as an external check to the actions of the other organs of the social democracy, wherein the Supreme Court makes sure that the Legislative and the Executive act within their respective constitutional limits,[20] b) The Supreme Court must review the statutes passed by the Parliament of India and the individual State Legislative Assemblies to check if the statutes conform with the provisions of the constitution (the Supreme Court is empowered to repeal any statutes that violate any provision of the Constitution of India)[21]and, c) The Supreme Court is burdened to protect the Fundamental Rights of the citizens of India against any invasion from the ‘State.’[22]

It is worth noting that the provisions under Article 32 cannot be suspended in any situation unless the said situation is provided by the Constitution of India itself; thus, it can be inferred that Supreme Court is entrusted under Article 32 with guarding the Constitution of India while preventing the unconstitutional abuse of authority by the Legislative and the Executive. The importance of Article 32 was accentuated when Dr B. R. Ambedkar called Article 32 the ‘Heart’ and the ‘Soul’ of the Constitution of India.[23]

The Supreme Court of India uses the weapons of Writ Petitions to enforce the Fundamental Rights under part III of the Constitution of India.[24] In a nutshell, Writ Petitions balance the aforementioned three-tier purpose of the Constitution of India.

What is a Writ Petition?

Article 32, Sub-Section 2 of the Constitution of India speaks of five Writs for the enforcement of Fundamental Rights. If a citizen of India feels that their Fundamental Rights are being violated, then the said individual has the constitutional right to move to the Supreme Court of India under Article 32 for the restoration and enforcement of the Fundamental Rights of the aggrieved individual (a person whose Fundamental Rights are infringed). Although Article 32 guarantees a constitutional remedy for the aggrieved individual, it is left to the discretion of the Supreme Court to either grant or not to grant the constitutional relief.[25]

It must be noted that the Supreme Court of India can issue a Writ on its own accord for the enforcement of Fundamental Rights; additionally, the scope of Writs is limited to Fundamental Rights within Article 32 while the same Writ includes non-Fundamental Rights (ex: in the case of Smt. Imtiaz Bano v. Masood Ahmad Jafri (1979) AIR All 25, Justice M. H. Hussain of the Allahabad High Court allowed the Writ Petition of the appellant for the custody of her children) along with the Fundamental Rights for the High Court under Article 226 of the Constitution of India, i.e. the scope of Writs is larger for a  High Court (Article 226) than the Supreme Court of India (Article 32).[26]

In the simplest of terms, a Writ is defined as any written command from the court of law to either perform or abstain from performing an act or a series of acts.[27]

Habeas Corpus

The Latin phrase, Habeas Corpus, literally translates as ‘To Have the Body.’ Out of the five Writs, Habeas Corpus is the oldest Writ, wherein Clause 39 of the Magna Carta, 1215 had a clause to protect the unlawful imprisonment of innocent people.[28] The document signed by King John allowed the court of law to order Habeas Corpus to judicially inquire into the legality of the prisoner’s arbitrary arrest or detention.

Although the United Kingdom codified the Latin phrase under the Habeas Corpus Act, 1679 under the rule of King Charles II to establish a proper legal procedure to issue the writ of Habeas Corpus, it would be suspended multiple times during the French Revolution of 1793 (to prevent a similar uprising from forming on English soil), World War I and World War II.[29]

A similar provision exists within the Constitution of India, wherein the unlawful detention can happen at the hands of either the State (Writs issued by not only the Supreme Court but also the High Court) or the private institutions (Writs issued by the High Court only)[30] occurs under any one of the following conditions:[31]

  1. Article 22, Sub-Section 2 of the Constitution of India mandates the arresting institution (State/ Private Institution) to present the arrestee before the nearest Court of Magistrate within the first twenty-four hours of the arrest. If any individual is detained in the custody of either the State or any Private Institution for a period greater than twenty-four hours without being presented in front of a magistrate, then such detention will be deemed as unlawful.
  2. Article 20, Sub-Section 1 of the Constitution of India prevents the arrest of any individual whose performance of any act or series of acts does not violate either any incumbent law or parliamentary statute. If a homosexual couple in India is arrested and subsequently detained on the grounds of sexual intercourse under Section 377 of the Indian Penal Code in 2021 by any law enforcement agency, then such custodial detention will be deemed as unlawful because the actions of the homosexual couple neither violate any particular law nor violate any parliamentary statute.
  3. The detention of an individual under parliamentary legislation or statute is unlawful if the aforementioned statute or legislation has been deemed unconstitutional by the Supreme Court of India.[32]
  4. If the detention of a person is done by the arresting agency with the malicious intention of inflicting harm on the arrestee.[33]
  5. If the detention of the individual is in violation of Article 22, Sub-Section 4 of the Constitution of India (the preventive detention of an individual cannot exceed a duration of three months unless an Advisory Committee of either incumbent or former Judges of the High Court decides to uphold the preventive detention on grounds of sufficient cause (Article 22, Sub-Section 4, Clause A)), then the detention is deemed as unlawful.[34]

It is worth noting that a Writ of Habeas Corpus can be filed by either the detainee or any person on behalf of the detainee.[35] In the case of Sunil Batra v. Delhi Administration & Ors. (1979) 1 SCR 392, a five-bench constitutional bench (Chief Justice Y. V. Chandrachud, Justice V. R. Krishnaiyer, Justice S. M. Fazalali, Justice P. N. Shingal and Justice D. A. Desai) upheld the writ of Habeas Corpus made by the petitioner on behalf of his fellow inmate, Prem Chand for the inhuman sexual torture of the inmate at the hands of Head Warden, Maggar Singh; this shows that the scope and utility of Habeas Corpus can be widened to protect life and liberty of inmates within the walls of prison even if the detention of the petitioner was not unlawful.[36]

The aforementioned case cemented the fact that the application of the writ of Habeas Corpus may be formal or informal, wherein the petitioner in the aforementioned case wrote a scribbled letter to the Supreme Court of India from Tihar Central Jail that was accepted by the Supreme Court.[37] A similar contention was seen in the case of Prem Shankar Shukla v. Delhi Administration (1980) 3 SCR 855, wherein Justice V. R. Krishnaiyer upheld the telegram of the prisoner at the Tihar Central Jail (the petitioner complained of the torture and the humiliation of forced handcuffing in public) as a valid application for Habeas Corpus.

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If the writ of Habeas Corpus is rejected by any Judge of the Supreme Court, then the petitioner is barred from petitioning the same writ to another Judge of the same court because of the legal principle of Res Judicata under Section 11 of the Civil Procedure Code, 1908. For example, a suit or petition is filed with a court of law, wherein the parties to the suit are A and B; if a substantial portion of the suit has been raised in a previous suit or petition (between the same parties, A and B) before the same court of law, wherein the court has already decided upon the previous suit or petition, then the court of law has the power and authority to reject the new suit or petition under the principle of Res Judicata.[38]

Mandamus

The literal translation of the Latin word Mandamus is ‘We Command,’ wherein a court of law is empowered to issue the writ of Mandamus to a public authority who has declined to perform its legal duties and obligations.[39] Although the writ of Mandamus is filed by a person who has a direct interest in the performance of the public authority (the inaction of the public authority violates the Fundamental Rights of the individual), it is the discretion of the court of law to issue the writ for the proper functioning of the public machinery.[40]

The writ can be issued by the Supreme Court to an inferior court/ tribunal, public official, a public institution established by either the law or a parliamentary statute and a private corporation (provided that the Central/ State government has substantial control either financially or administratively over the private corporation).[41]

A Mandamus cannot be issued against a private corporation that has neither the financial nor the administrative control of the Central/ State government; additionally, the writ cannot be issued against the following authorities:[42]

  1. Incumbent Chief Justice of India.
  2. If the duty of the public authority is not mandated by law, i.e. the performance by the public authority is purely discretionary in nature, then a writ of Mandamus cannot be issued for the non-performance of non-statutory duties;[43] however, if the duty of the public authority arises out of Common Law, then the writ of Mandamus will be upheld even if the duty has no statutory standing.[44]
  3. President of India and the Governor of a State.
  4. If the duty arises out of a contractual agreement between two parties (one being a public authority), then the writ cannot be issued to the public authority for the non-performance of the provisions of the contractual agreement; however, if the public authority is being unfair, discriminatory and unreasonable while discharging the provisions of the aforementioned contract, then the public authority’s decisions can be reviewed with the writ of Mandamus.[45]
  5. The conduct of either the Member of Parliament (Lower House and Upper House) or the Member of State Legislative Assembly in the Central Parliament and the State Legislative Assembly respectively is exempted from the writ of Mandamus.
  6. If the State Legislative Assembly passes a statute that violates the Fundamental Rights of the citizens of the State, then the writ of Mandamus cannot be issued against the aforementioned State Legislative Assembly.[46]
  7. Any public official that is engaged in the official work of the Electoral Process is exempted from receiving the writ of Mandamus, provided that the Electoral Process is associated with the elections to either the Union Government or the State Government.
  8. If the public harm caused by non-performance of duties by a public official has a legal remedy within the Code of Civil Procedure, 1908, then the Writ of Mandamus cannot be entertained by the Supreme Court of India.[47]

It is worth noting that an individual filing a petition of Mandamus must have not only a special interest in the subject matter (alleged non-performance of duties by the public authority) but also the legal right to file such a writ.[48] Although Article 32 provides for the writ of Mandamus, Indian cases and the principles of Jurisprudence have embodied themselves into three types of Mandamus writs:[49]

  1. Continuous Mandamus:

There are instances where the Supreme Court may believe that the mere issuance of Mandamus will not be copious enough to make the public authority perform its duties; in such situations, the Supreme Court may order the continuous supervision of the public authority by the regular visitation of court officials that  provide a comprehensive reporting of the compliance of the public authority with the writ of Mandamus.[50]

  1. Anticipatory Mandamus:

If an individual files a writ of Mandamus after feeling that the non-performance of the duties by the public authority may infringe on the Fundamental Rights of the individual, then the writ becomes an Anticipatory Mandamus, wherein the Supreme can reject the writ since there is no actual legal injury to the Fundamental Rights of the individual.[51] Similarly, if an individual files a writ of Mandamus for an anticipative non-performance of duties, then the Anticipatory Mandamus has no standing.[52]

  1. Alternative Mandamus:[53]

Upon receiving the writ of Mandamus, the Supreme Court may issue an Alternative Mandamus to the accused public authority, wherein the court of law asks the accused public authority to justify the non-performance of duties and if the public authority fails to provide a reasonable justification, then the court is empowered to issue a Peremptory Mandamus.[54]

In a nutshell, the writ of Mandamus acts as a constitutional remedy in public law for the enforcement of public rights by compelling the accused public authority to perform its duties (statutory or Common Law); additionally, the writ cannot be used as a remedy for private wrongs.[55] The writ of Mandamus acts as a ‘wakeup call’ for the public authorities that are sleeping on their respective duties.[56]

Prohibition

If a judicial or quasi-judicial body (ex: National Human Rights Commission, Competition Commission of India, Intellectual Property Appellate Tribunal, Income Tax Appellate Tribunal, etcetera) have breached their statutory jurisdiction, then the superior court of law can issue a Writ of Prohibition to the aforementioned subordinate judicial or quasi-judicial body.[57] It is worth mentioning that Prohibition is a preventive writ that acts as a ‘Stay Order’ on the case in the subordinate court of law, wherein the hearings of the case come to an immediate cessation after the writ of Prohibition is issued against the subordinate court.[58]

The Writ of Prohibition is upheld even if the subordinate judicial or non-judicial body acts outside the realm of Natural Justice, for example, if the Judge of the High Court is hearing a case where the Judge has a personal interest in the case, then the Judge violates the principles of Natural Justice.[59] The writ of Prohibition cannot be used against any administrative body or legislative authority or any private entity.[60]

If a subordinate court of law hears a suit or petition under legislation or statute or law that itself is unconstitutional or ultra vires, then the higher court can issue the writ of Prohibition to declare the suit as invalid; additionally, the same provision applies to suits where the Fundamental Rights of the parties to the suit are violated by the said subordinate court.[61]

The writ of Prohibition can be issued if and only if the subordinate judicial/ quasi-judicial body is yet to decide on the suit (at any step of the suit), i.e. the writ has no standing if the said authority has already decided on a verdict for the suit.[62] A major difference between the writs of Mandamus and Prohibition is that the former commands activity from the Supreme Court of India while the latter commands inactivity from the Supreme Court of India.[63] It is worth noting that the writ of Prohibition cannot be issued against the administrative decisions of the Executive government.[64]

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Certiorari

The Royal Charter, 1774 not only established the Supreme Court in the Calcutta province but also empowered the Supreme Court to issue the prerogative writ of Certiorari, wherein the same provision was extended to the Supreme Court of Bombay province (Clause 3 of Royal Charter, 1800) and the Supreme Court of Madras province (Clause 10 of Royal Charter, 1823).[65]

Although the meaning of the Latin word Certiorari can be discerned as ‘to certify’ from its etymological analysis, the true acumen comes from the case of Hari Vishnu Kamath v. Syed Ahmad Ishaque & Ors. (1955) 1 SCR 1104, wherein a seven-judge constitutional bench (Chief Justice M. C. Mahajan, Justice T. L. V. Aiyyar, Justice N. H. Bhagwati, Justice B. Jagannadhadas, Justice B. K. Mukherjee, Justice S. R. Das and Justice V. Bose) of the Supreme Court of India expounded on the scope of Certiorari to cover either of the following cases:[66]

  1. If the subordinate court or a quasi-judicial body has defied its jurisdiction (either excess of jurisdiction or lack of jurisdiction).
  2. If the subordinate court or a quasi-judicial body has violated the principles of Natural Justice.
  3. If the error in judgement is evident at the end of the subordinate court or quasi-judicial body (i.e. the prima facie error in the legal procedure can be corrected by Certiorari while a wrongful verdict (non-favourable to one of the parties of the suit) by the subordinate judicial/ quasi-judicial body cannot be curated by Certiorari[67] ).

Fundamentally, the writ of Certiorari is issued by a superior court of law to an inferior judicial or quasi-judicial body to quash a verdict or order of the latter if either of the aforementioned conditions is fulfilled;[68] additionally, the writ can be issued if the superior court wants to transfer a particular case from the inferior judicial body to itself,[69] such that the superior court takes suo motu cognisance of the said matter.[70]

As against the Writ of Prohibition, the writ of Certiorari is issued after the inferior judicial/ quasi-judicial body declares a verdict for a case, i.e. the writ of Certiorari is a curative writ.[71] A certain set of conditions are needed for the issuance for the Writ of Certiorari:[72]

  1. The writ of Certiorari can only be issued to an inferior judicial body by a superior court of law, i.e. the writ cannot be issued by one High Court to another High Court; however, the writ can be issued by the Supreme court of India to any other High Court.
  2. Any one of the aforementioned three conditions must be present for the issuance of Certiorari, for example, if a Judge of the District Court has given a verdict in a suit or case without hearing the side of one of the parties, then the Judge has violated the principle of Audi Alterum Partem and the High Court can issue a writ of Certiorari to quash the said verdict of the District Court. The writ of Certiorari can be issued by the superior court if the decision or order of the inferior judicial/ quasi-judicial body violates the Fundamental Rights of the parties to the decision or order.[73]

Although the writ of Certiorari can only be issued against a judicial or quasi-judicial body, it is the case of Province of Bombay v. Kusaldas S. Advani & Ors. (1950) AIR 222 where Chief Justice H. J. Kania held that the scope of Certiorari includes the authorities who not only have the legal authority to make decisions regarding the citizens of India but also have the legal duty to act judicially.

Chief Justice H. J. Kania held that the term ‘judicial acts’ not only covers the acts of either a Judge of a court of law or a legal judicial tribunal but also covers the acts of any competent authority that affect the Fundamental Rights of the citizens of India.[74] It must be remembered that the writ of Certiorari cannot be used to quash the following acts: a) Acts of a Parliamentary Ministry, b) Administrative Acts of the Executive that are non-judicial in nature and, c) the Act or Ordinance of either the Central Parliament or the State Legislative Assembly; similarly, the superior court cannot invoke this writ to ‘certify’ the proceedings or documents of either the Act or the Ordinance of either the Central Parliament or the State Legislative Assembly.[75]

It must be noted that there exists a thin distinction between administrative actions (no Certiorari) and judicial/ quasi-judicial actions (valid Certiorari), wherein Lord Justice Atkin suggested that any action by lawful authority (may or may not be a judicial/ quasi-judicial authority) that affects the rights of citizens is a judicial action since the lawful authority has a legal duty to act judiciously.[76]

The writ of Certiorari can be issued against any such lawful authority that acts in excess of its jurisdiction, i.e. the arbitrary and capricious actions by the lawful authority that is not only unjust but also unfair invite the writ of Certiorari by a superior court of law.[77]   

In a nutshell, the Writ of Certiorari can be issued by a superior court of law (ex: Supreme Court of India) to any subordinate body that performs judicial or quasi-judicial functions, wherein the functions can infringe the Fundamental Rights of the citizens of India when the subordinate body acts over a matter either in excess of its jurisdiction or in absence of any jurisdiction;[78] additionally, the writ cannot be issued to a private corporation since the private body does not execute any public function that can fall within the realm of judicial/ quasi-judicial functions.[79]

Quo Waranto

The final writ of Quo Waranto is a Latin phrase that literally translates as ‘What Warrant,’ wherein the writ bars any individual from occupying a public office that the said individual is not permitted to occupy.[80] The writ of Quo Waranto is issued by the superior court of law when the court wants to scrutinize the authority with which the public office is being held; additionally, the scope of the writ is limited to public offices that either exercise some significant government (central/ state) function and power or are charged with the duty of executing the law and parliamentary statutes.[81]

A writ of Quo Waranto cannot be held for a private office.[82] In line with the other writs, Quo Waranto can be filed by any person even if the petitioner is not directly affected by the occupancy of the public office in question.[83] The validity of the writ is upheld if and only if the following conditions are met:[84]

  1. The office must be permanent and substantially public, i.e. the office must have its provenance in either the Constitution of India or the statute of the Central Parliament or the State Legislative Assembly. The public office performs certain Executive, Legislative and Judicial functions of the Central/ State Government for the interest of the public at large.[85] The public office must be autonomous in nature, i.e. the office and its office-bearer must not perform functions at the behest of another public office/ office-bearer (ex: deputy officer, assistant officer, etcetera).[86]
  2. The occupancy of the office must violate the aforementioned provisions of either the Constitution of India or the genesis statute of the Central Parliament or the State Legislative Assembly.

If the writ of Quo Waranto is upheld, then the court will preclude the individual from carrying out any activities in the public office while declaring the public office as vacant.[87] The writ of Quo Waranto cannot be used for the dismissal of State Ministers since not only the appointment of the State Ministers was done by the Governor of the state on the advice of the Chief Minister of the same state but also the State Ministers enjoy their office at the pleasure of the aforementioned Governor and not the court of law.[88]

The writ of Quo Waranto cannot be issued if the contravention of law or statute by the occupancy of a public office has an alternative legal remedy (ex: the writ of Quo Waranto to challenge the election of the Chief Minister of a state will not be upheld by the court of law since there exists an alternative legal remedy of Election Petition).[89] It is worth noting that either the election or the appointment of an individual to a public office is not enough for the superior court of law to uphold the writ petition of Quo Waranto unless the said individual officially accepts the position of office-bearer of the public office.[90]

In certain cases, the writ cannot be issued against either the appointment of Council of Ministers along with the Cabinet Ministry (Central/ State Government) or Chief Minister along with the Governor of the State.[91] In a nutshell, the writ of Quo Waranto is a judicial remedy to reverse the unlawful occupancy of a public office by an office-bearer, such that the writ petition may be filed by a petitioner whose Fundamental/ Legal Rights are not directly affected by the aforementioned unlawful occupancy; additionally, the writ  acts as judicial protection against the unlawful usurpation of offices of public nature.[92]

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Conclusion

The Fundamental Rights under Part III of the Constitution of India safeguard the socio-economic, cultural and intellectual interests of the citizens of India; however, the heart of the constitution (Article 32 of the Constitution of India) empowers the Supreme Court of India to protect and enforce the Fundamental Rights against the unlawful infringement by the Legislative and the Executive. Article 32 upholds the three-tier virtue of the constitution, wherein the constitutional remedy not only acts as a check for the continuance of the Doctrine of Separation of Powers but also protects the present and future of the citizens of India.

The five writs under Article 32, Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo Waranto act as weapons to be used by the Supreme Court of India to protect the Fundamental interests of the citizens of India while keeping a check on the other organs of the social democracy that directly or indirectly affect the attainment of Fundamental Rights of the citizens of India.

In a nutshell; the writ of Habeas Corpus protects an individual from unlawful detention by either the law enforcement agency or a private body, the writ of Mandamus commands the activity of an inferior judicial/ quasi-judicial/ public authority that fails to fulfil its statutory obligations and Common Law duties, the writ of Certiorari certifies and quashes the unlawful decisions and verdicts given by an inferior judicial/ quasi-judicial authority, the writ of Prohibition halts the proceedings of the judicial/ quasi-judicial authorities that perform its judicial/ quasi-judicial in either excess of jurisdiction or absence of jurisdiction, and the writ of Quo Warranto bars the occupancy of any public office, wherein the incumbent office-bearer is not entitled to such an occupation.

Article 32 is the soul of the constitution without which the three-tier essence of the constitution is nullified.

 

 

References:

[1] Himangshu R. Nath, Constitutional Law of India (Feb. 11, 2021) (unpublished classwork notes) (on file with the National Law University and Judicial Academy, Assam).

[2] Political Independence, SCIENCE DIRECT. https://www.sciencedirect.com/topics/social-sciences/ political-independence (last visited Mar. 04, 2021).

[3] Deb Z. Das, Judiciary, Executive & Legislature: Analysis of Separation and Overlapping of Powers, LATEST LAWS (Aug. 19, 2020), https://www.latestlaws.com/articles/judiciary-executive-legislature-analysis-of-separation-and-overlapping-of-powers.

[4] Janhavi Arakeri, Separation of Powers, IPLEADERS (May. 18, 2019), https://blog.ipleaders.in/ separation-of-powers/#:~:text=Its%20root%20is%20traceable%20in,their%20opinion%20 regarding%20this%20doctrine.

[5] Doctrine of Separation of Powers in India, CIVILS DAILY. (Sep. 22, 2017), https://www.civilsdaily.com/doctrine-of-separation-of-powers-in-india.

[6] K. K. Venugopal, Separation of Powers: Drawing the Dividing Line, Speech at the National University of Juridical Sciences, Kolkata: 5th Durga Das Basu Memorial Lecture (Mar. 18, 2012).

[7] Nath, supra note 1.

[8] Delegates of the Continental and Confederation Congresses Who Signed the United States Constitution, HISTORY, ART & ARCHIVES: UNITED STATES HOUSE OF REPRESENTATIVES. https://history.house.gov/People/Continental-Congress/Signatories (last visited Mar. 04, 2021).

[9] A Brief History of Human Rights, UNITED FOR HUMAN RIGHTS. https://www.humanrights.com/ what-are-human-rights/brief-history/declaration-of-independence.html#:~:text=The%20Bill%20of% 20Rights%20protects,punishment%20and%20compelled%20self%2Dincrimination (last visited Mar. 04, 2021).

[10] Id.

[11] Hemant Singh, Fundamental Rights: Importance and Summary, JAGRAN JOSH (Feb. 05, 2020), https://www.jagranjosh.com/general-knowledge/fundamental-rights-1434437575-1.

[12] Why are fundamental rights important? VEDANTU. (Aug. 26, 2018), https://www.vedantu.com/ question-answer/why-are-fundamental-rights-important-5b82ef22e4b0a50233a8b1b8#:~:text= Fundamental%20Rights%20protect%20the%20liberties,the%20individuals%20and%20the%20country.

[13] Gautam Bhatia, Republic at 70: The importance of fundamental rights, HINDUSTAN TIMES (Jan. 26, 2020), https://www.hindustantimes.com/opinion/republic-at-70-the-importance-of-fundamental-rights-writes-gautam-bhatia/story-Dn6RiHtvL2jNbcWjFlc9fM.html.

[14] Vedantu, supra note 12.

[15] Why BR Ambedkar’s three warnings in his last speech to the Constituent Assembly resonate even today, SCROLL. (Jan. 26, 2016), https://scroll.in/article/802495/why-br-ambedkars-three-warnings-in-his-last-speech-to-the-constituent-assembly-resonate-even-today.

[16] Niranjan Rajadhyaksha, BR Ambedkar: In his own words, MINT (Apr. 14, 2016), https://www.livemint.com/Home-Page/JHyUYYjoMzBFWSKuptd8LK/BR-Ambedkara-man-of-many-parts.html.

[17] “The Grammar of Anarchy,OUTLOOK. (Jan. 20, 2014),  https://www.outlookindia.com/website /story/the-grammar-of-anarchy/289235.

[18] Bhatia, supra note 13.

[19] Revathi Krishnan, What is Article 32 which Ambedkar said was ‘heart’ and ‘soul’ of Constitution, THE PRINT (Nov. 17, 2020), https://theprint.in/theprint-essential/what-is-article-32-which-ambedkar-said-was-heart-and-soul-of-constitution/546050/#:~:text=Article%2032%20falls%20under%20Part, Dr%20B.R.

[20] L. Chandra Kumar v. Union of India & Ors., 3 SCC 261 (1997) (India).

[21] Venkatesh Nayak, The Basic Structure of the Indian Constitution, CONSTITUTION NET, https://constitutionnet.org/vl/item/basic-structure-indian-constitution#:~:text=If%20a%20law%20 made%20by,law%20invalid%20or%20ultra%20vires.&text=Article%20368%20of%20the%20Constiution,all%20parts%20of%20the%20document.

[22] Nirmalendu B. Rakshit, Right to Constitutional Remedy: Significance of Article 32, 34 ECON. POLITICAL WKLY. 2379, 2379-2380 (1999).

[23] Shampa Sen, DNA Explainer: Why is Article 32 called ‘heart’ and ‘soul’ of Constitution and its ever changing interpretation, DNA (Nov. 18, 2020), https://www.dnaindia.com/india/report-kerala-journalist-siddique-kappan-article-32-fundamental-rights-constitution-supreme-court-cji-s-a-bobde-2857144.

[24] Sridhar M. Acharyulu, Article 32: Rights for All or For a Favoured Few? THE WIRE (Nov. 21, 2020), https://thewire.in/rights/supreme-court-article-32-ambedkar-arnab-goswami.

[25] Tanu Kapoor, Analysis of Types of Writs under Constitution of India: Landmark Cases, LATEST LAWS (May. 07, 2020), https://www.latestlaws.com/articles/analysis-of-types-of-writs-under-constitution-of-india-landmark-cases-by-tanu-kapoor.

[26] Adarsh S. Thakur, Writs under the Indian Constitution, IPLEADERS (May. 20, 2019), https://blog.ipleaders.in/writs-under-the-constitution.

[27] Writ, LEXICO. https://www.lexico.com/definition/writ (last visited Mar. 05, 2021).

[28] Magna Carta: Muse and Mentor, LIBRARY OF CONGRESS. https://www.loc.gov/exhibits/magna-carta-muse-and-mentor/writ-of-habeas-corpus.html#obj077 (last visited Mar. 05, 2021).

[29] Habeas Corpus Act, 1679, BRITISH LIBRARY. http://www.bl.uk/learning/timeline/item 104236.html (last visited Mar. 05, 2021).

[30] Writs and their Scope, JAGRAN JOSH. (Jul. 18, 2015), https://www.jagranjosh.com/general-knowledge/writs-and-their-scope-1437205347-1.

[31] Types of Writs in the Constitution of India, GK TODAY. https://www.gktoday.in/gk/types-of-writs-in-the-constitution-of-india (last visited Mar. 05, 2021).

[32] Makhan Singh v. The State of Punjab, 4 SCR 797 (1964) (India).

[33] GK TODAY, supra note 31.

[34] Id.

[35] JAGRAN JOSH, supra note at 30.

[36] Kapoor, supra note at 25.

[37] Vikranta P. Barsay, The Genesis and the Proliferation of Public Interest Litigation in India, THE LEGAL STATE (Feb. 17, 2021), https://lawsuperior.com/genesis-proliferation-public-interest-litigation.

[38] A second writ petition for issuing a writ of habeas corpus is barred by principles of res judicata, ADVOCATE TANMOY LAW LIBRARY (Nov. 20, 2018), https://advocatetanmoy.com/2018/11/20/ a-second-writ-petition-for-issuing-a-writ-of-habeas-corpus-is-barred-by-principles-of-res-judicata.

[39] Writs in the Indian Constitution, CLEAR TAX. (Jan. 05, 2021), https://cleartax.in/s/writs.

[40] Id.

[41] Types of Writs in India, LEAD THE COMPETITION. http://www.leadthecompetition.in/GKT/ gktopics.html (last visited Mar. 06, 2021).

[42] Ayush Verma, What powers do the courts have under writ of mandamus? IPLEADERS (Jul. 25, 2020), https://blog.ipleaders.in/powers-courts-writ-mandamus/#:~:text=The%20writ%20of%20 mandamus%20cannot,of%20a%20writ%20of%20mandamus.

[43] State of Assam & Anr. & Ajit Kumar Sharma & Ors., 1 SCR 890 (1965) (India).

[44] Anandi Mukta Sadguru Shree Mukta Jeevandasswami Suvarna Jaya v. V. R. Rudani & Ors., 2 SCR 697 (1989) (India).

[45] A. Arun, Law of  Writs In Indian Constitution, LEGAL SERVICE INDIA,  http://www.legalserviceindia.com/legal/article-541-law-of-writs-in-indian-constitution.html (last visited Mar. 06, 2021).

[46] Chotey Lal v. State of Uttar Pradesh & Ors., AIR All 228 (1951) (India)

[47] Vemula Prabhakar & Ors. v. Land Acquisition Officer, 1 ALD 200 (2002) (India).

[48] Writs in Indian Constitution, V SKILLS. https://www.vskills.in/certification/blog/types-of-writs-in-indian-constitution (last visited Mar. 06, 2021).

[49] Rishabh Sachdeva, Writ of Mandamus, SOO LEGAL (Feb. 07, 2020), https://www.soolegal.com/ roar/writ-of-mandamus.

[50] Verma, supra note 42.

[51] Maganbhai Ishwarbhai Patel v. Union of India & Anr., 3 SCR 254 (1969) (India).

[52] Id.

[53] Sachdeva, supra note 49.

[54] Id.

[55] Binny Ltd. & Anr. v. V. Sadasivan & Ors., AIR SC 3202 (2005) (India).

[56] GK TODAY, supra note 31.

[57] Types of Writs under the Indian Constitution, LEX FORTI. (Nov. 13, 2020), https://lexforti.com /legal-news/types-of-writs-under-the-indian-constitution.

[58] Hemant More, Writs and Their Types, THE FACT FACTOR (Feb. 16, 2019), https://thefactfactor.com/facts/law/legal_concepts/legal_terms/writs/180.

[59] GK TODAY, supra note 31.

[60] Types of Writs In India, BYJU’S. https://byjus.com/free-ias-prep/types-of-writs-in-india (last visited Mar. 06, 2021).

[61] LEX FORTI, supra note 57.

[62] Kapoor, supra note 25.

[63] Vikram Shah, What Is A Writ And What Is A Writ Petition? VAKIL SEARCH (Dec. 05, 2019), https://vakilsearch.com/advice/writ-petition-india-filing-drafting.

[64] Brij Khandelwal v. Union of India, ILR Delhi 501 (1975) (India).

[65] Kushagra Chandel, Correction of Quasi-Judicial Decisions: Writ of Certiorari, 1 PEN ACCLAIMS 1, 5-6 (2018).

[66] More, supra note 58.

[67] Syed Yakoob v. K. S. Radhakrishnan & Ors., 5 SCR 64 (1964) (India).

[68] Krishnendra Joshi, Writs under the Indian Constitution, IPLEADERS (May. 20, 2019), https://blog.ipleaders.in/writs-under-the-constitution/

[69] Shah, supra note 63.

[70] Kriti Goyal, Types of Writs, INDIAN LEGAL SOLUTION (Apr. 07, 2020), https://indianlegalsolution.com/types-of-writs.

[71] GK TODAY, supra note 31.

[72] Joshi, supra note 68.

[73] Goyal, supra note 70.

[74] Hemant More, The Writ of Certiorari, THE FACT FACTOR (Aug. 10, 2020), https://thefactfactor.com/facts/law/civil_law/administrative-law/writ-of-certiorari/13998.

[75] Id.

[76] R v. Electricity Commissioner, 1 KB 171 (1942) (the United Kingdom).

[77] A. K. Kraipak v. Union of India, 2 SCC 262 (1969) (India).

[78] The State of Uttar Pradesh v. Mohammad Nooh, SCR 595 (1958) (India).

[79] More, supra note 74.

[80] JAGRAN JOSH, supra note 30.

[81] P. S. Venkataswamy Setty v. University of Mysore & Ors., AIR Kant 159 (1964) (Karnataka, India).

[82] Hemant More, The Writ of Quo-Waranto, THE FACT FACTOR (Aug. 10, 2020), https://thefactfactor.com/facts/law/civil_law/administrative-law/the-writ-of-quo-warranto/14013/#:~: text=The%20Writ%20of%20Quo%2DWarranto%20cannot%20be%20issued%20to%20a,of%20which%20is%20being%20questioned.&text=The%20office%20must%20be%20public,or%20by%20the%20constitution%20itself.

[83] Godde Venkateswara Rao v. the Government of Andhra Pradesh & Anr.,2 SCR 172 (1966) (India).

[84] More, supra note 58.

[85] Abhishek Rathee, Writ Petition: Quo Warranto, SOO LEGAL (Mar. 05, 2020), https://www.soolegal.com/roar/writ-petition-quo-warranto.

[86] Id.

[87] Ajay C., Types of Writs In Indian Constitution, LEGAL SERVICE INDIA http://www.legalserviceindia.com/legal/article-68-types-of-writs-in-indian-constitution.html (last visited Mar. 08, 2021).

[88] Cannot issue writ of quo warranto for removing Minister: High Court, THE HINDU. (Mar. 02, 2012), https://www.thehindu.com/news/national/tamil-nadu/cannot-issue-writ-of-quo-warranto-for-removing-minister-high-court/article2951318.ece.

[89] Jogendra Nath Hazarika v. the State of Assam & Ors., AIR Gau 25 (1982) (Gauhati: India).

[90] Puranlal Lakhanpal v. P. C. Ghosh & Ors., 74 CWN 228 (1970) (Calcutta: India).

[91] Mansi Jain, Different Writs Enshrined in the Constitution, IPLEADERS (Mar. 08, 2019), https://blog.ipleaders.in/writs.

[92] Deepak P. Singh, Various Types of Writs Under Constitution of India, TAX GURU (Jul. 31, 2015), https://taxguru.in/corporate-law/types-writs-constitution-india.html.

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