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Key takeaways

  • The Supreme Court is given powers to issue writs for the enforcement of Fundamental Rights, under Article 32 of the Constitution.
  • Habeas corpus is issued by the Supreme Court in order to question the legality of the detention of any individual by another person, institution, or authority.
  • Mandamus is used against any government authority that has failed to or has not performed its duties adequately.
  • Certiorari is issued by the Supreme Court to lower courts to quash any order that exceeds their jurisdiction or to transfer a particular matter from a lower court to any other superior judicial authority.
  • Quo Warranto is issued to prevent the illegal usurpation of a public office by an individual.
  • Prohibition is issued to stop a lower court or tribunal from exceeding its jurisdiction in cases that are pending before it.

Introduction

The Supreme Court is the primary guardian of our Constitution. It is the apex court of India with the highest authority. It is thus vested with the power to safeguard the Fundamental Rights of its people and to take adequate measures against any authority that does so. Any such judgement of the Supreme Court is binding over all courts and governments in India. The Supreme Court of India is given such power by Article 32 under which comes the various writs by which the Court can protect Fundamental Rights guaranteed by the Constitution.

Types of Writs

  • Habeas Corpus

The literal translation of this writ is “to produce the body”. It is issued by the Supreme Court in order to question the legality of the detention of any individual by another person, institution, or authority. Such a writ can be filed by the person under unlawful custody or by anyone else representing them. The writ protects the fundamental right to freedom of movement under Article 19, and the right to life and liberty under Article 21. It also ensures that every such action against an individual is according to the “procedure established by law”. Few landmark cases regarding the writ of habeas corpus are the following.

  • A. D. M Jabalpur vs Shivkant Shukla [AIR 1976 SC 1207]

This case which is also known as the ‘habeas corpus case’ was during the period of Emergency in India. During this period there were several instances in which the opposition leaders were arrested and detained by the ruling government, without any lawful procedures followed. In few such cases, the detainees petitioned the High Court and received favourable judgements. This led the Central Government to file a case in the Supreme Court demanding superseding authority over all fundamental rights of the citizen, as the economic and military security of the nation was of prime interest. The matter under question was, whether the High Court has the authority to ensure the protection of fundamental rights of an individual arrested under MISA (Maintenance of Internal Security Act). However, the respondents contended that common law and the right to personal liberty are not to be curtailed under any circumstances and that if the Executive is given more power than Legislature it would be a violation of basic principles of the Constitution.

The five-judge bench of the Supreme Court ruled that all Fundamental Rights remain suspended during the period of Emergency and that the right to life mentioned in the Constitution stands different from the “natural right” to life which is not legally enforceable. This remains one of the most criticised judgements of the Supreme Court.

By the 44th Amendment Act of 1978, it was declared that Article 21 cannot be suspended even during Emergency.

  • A. K Gopalan vs State of Madras [1950 AIR 27]

This case threw light upon the concepts of ‘due process of law’ and ‘procedure established by law’, questioned the constitutionality of Preventive Detention Act, 1950, and the relation between Article 19 and 21. It was filed by A.K Gopalan who was a communist leader arrested by the then Madras Government, under the Preventive Detention Act, 1950. The court held that the Act was constitutional in its provisions and that the provisions according to which one is detained need not be disclosed in a court. It declared the arrest of A.K Gopalan to be valid.

However, in Maneka Gandhi vs Union of India [AIR 1978 SC 597], this decision was overruled. The Court stated in this judgement that any process of law should not be arbitrary, unfair, oppressive, or unreasonable.

  • Mandamus

The literal meaning of mandamus is “we command”. This writ is used against any government authority that has failed to or has not performed its duties adequately. Any person who has had their fundamental rights infringed because of such inaction can move against the authority using this writ. It is also issued against lower courts or judicial bodies who have not acted on their jurisdiction. However, this writ cannot be used against the President or any State Governor, private institutions, individuals, or any legislature, asking to legislate on any law. A landmark case based on this writ is as follows.

  • S. P Gupta vs Union of India [AIR 1982 SC 149]

This was a case of public litigation judged by a seven-judge bench of the Supreme Court which is also known as the “judges’ transfer” case. The petition sought disclosure of documents regarding the transfer and appointment of judges. The Court stated that any document that holds public interest is to be disclosed if asked so, and this was one such document. The writ of mandamus was used to move against the State.

  • Certiorari

The meaning of Certiorari is “to be certified”. It is issued by the Supreme Court to lower courts in order to quash any order that has been passed by them. It is also used to pass, or transfer a particular matter from a lower court to any other superior judicial authority. It is also used against tribunals or quasi-judicial authorities. It is a tool of judicial constraint over a lower judicial authority if it has acted in excess of its jurisdiction, or has violated principles of natural justice. This writ is not enforceable against administrative actions. Few important judgements on this writ are the following.

  • Basappa vs Nagappa[AIR 1955 SC 756]

In this case, the Supreme Court examined the writ of Certiorari under the Indian context. It was stated that the Court does not change, or substitute the judgement of a lower court by this writ, but rather examines the jurisdiction of the tribunal below and observes the qualifying conditions in the course of such a judgement being issued. The limitations and scope of this writ were formulated in this judgement.

  • Hari Vishnu Kamath vs Syed Ahmad Ishaque [1955 AIR 233]

In this judgement, the Supreme Court stated that Certiorari was not merely “an appeal in disguise”. It does not bring order into a decision, but only corrects any errors occurred. The case involved elections to Lok Sabha in which the appellant complained that the ballots should be cancelled as voters were given the wrong ballot papers. The Court made it clear that it acts on a writ of Certiorari as a court of supervisory, not appellate jurisdiction.

  • Quo Warranto

This writ literally means “by what authority or warrant”. This is issued to prevent illegal usurpation of a public office by an individual. It puts a check on the legality of the claim that a person holds towards a public office. It is used to question the legal right of a person to hold a certain office, and not to examine their performance or actions while occupying it. The person who files such writ need not be personally suffered from such occupation of office by another individual, and the person in question is bound to give an explanation as to their authority in holding the office. It can only be filed in the case of public offices created by the Constitution. A landmark judgement on this writ is explained below.

  • University of Mysore vs CD Govinda Rao [1965 AIR 491]

In this case, the Supreme Court held that the writ of Quo Warrant can be held only against an office of ‘substantive nature’. The petition was against the appointment to the post of Research Reader in English by the University of Madras. It was held by the Court that, on the occasion of filing such writ petition, the Court should be convinced that the office in question is a public office and is held by a usurper without legal authority before he or she can effectively claim a writ of quo warranto.

  • S. Chandramohan Nair v. George Joseph [2010 (11) JT 38]

In this case, the appointment of the appellant as a member of the State Consumer Commission was challenged on the ground that his name was not recommended by the Selection Committee. The Supreme Court observed that the Division Bench of the Kerala High Court was in error while issuing the writ of quo warranto, and quashed the appellant’s appointment to the State Commission. The respondent was also labelled as a ‘busybody’ and ‘interloper’, as he had no relation to the State Commission and failed to prove how the appointment would adversely affect the samiti of which he was general secretary.

  • Prohibition

This writ is issued to stop a lower court or tribunal from exceeding its jurisdiction in cases that are pending. That is, this writ is issuable only when the proceedings have not yet matured into a judgement, and they are still pending before the lower court. A landmark judgement by the Supreme Court on this writ was the following.

  • S Govinda Menon vs Union of India [1967 AIR 1274]

In this judgement, it was held by the Supreme Court that, the writ of prohibition can be issued both when there is an excess jurisdiction and absence of jurisdiction by a lower court. In this case, the writ of prohibition was issued by the Kerala High Court, to a lower court in order to take over jurisdiction that was not initially vested in them. On hearing the appeal against this decision, the High Court stated that Prohibition is mainly aimed at keeping lower courts within the limits of their jurisdiction.

Conclusion

It can be understood that Article 32 gives the Supreme Court extensive original jurisdiction over the enforcement of Fundamental Rights. Lately, the apex court has also been encouraging matters in which larger public interest is involved and any individual or group of persons can file such writs in order to protect their Fundamental Rights. It is widely believed that the jurisdiction of the High Court under Article 226 is wider than that of the Supreme Court’s writ jurisdiction because the Supreme Court can issue such writs only when Fundamental Rights are in question, but High Court can issue them in other matters too. It is also laid that if relief through the high court is available under Article 226, the aggrieved party should first move the high court. However both these Articles constitute the basic structure of the Constitution, and they hold equal importance as far as the Constitutional weightage is concerned.


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