Article 32 grants every individual the right to move the Supreme Court for the enforcement of their fundamental rights. This means that if someone believes their fundamental rights have been violated, they can approach the Supreme Court directly for relief. It also ensures that not only do individuals have the right to move the Supreme Court, but the Court also has the power to issue appropriate orders, directions, or writs for the enforcement of fundamental rights.
The Supreme Court can issue five types of writs under Article 32:
Habeas Corpus: To ensure the release of a person who has been unlawfully detained.
When Article 21 was suspended during the National Emergency, it was held in Addl. District Magistrate, Jabalpur v. Shukla (Habeas Corpus Case) that an order of preventive detention could not be challenged even if it violated the parent Act (i.e, the Act relating to preventive detention). The 44th Amendment, 1978, has provided that Article 21, relating to personal liberty cannot be suspended even during an emergency.
The writ of Habeas Corpus is a check on the governmental powers to curtail the liberty of a person; its fundamental purpose is to ensure timely review of illegal detention. The scope and extent of this writ is enunciated by the Supreme Court in State of Maharashtra v. Bhaurao Punjabrao Gawande. The Court stated that the writ of habeas corpus has been described as a "constitutional privilege or the first security of civil liberty" as it provides a speedy remedy against illegal detention. By the virtue of this writ, the Court directs the authority which has detained a person to produce the body of the person before the Court so that it can assess the legitimacy of the arrest or detention.
Mandamus: To direct a public official or authority to perform a duty they are legally bound to perform.
In the case of S.P. Gupta v. Union of India, the court entailed that a writ cannot be issued against the President of India for fixing the number of judges in High Courts and filling vacancies. In E.A. Co-operative Society v. Maharastra, A.I.R. 1966 S.C. 1449 case the Court opined that the writ of mandamus can be issued when the government denies to itself a jurisdiction which it undoubtedly has under the law
In Bombay Municipality v. Advance Builders, AIR 1972 SC 793 case, Bombay Municipality had prepared a town planning scheme which had been also approved by the State Government. However, no action was taken for a long time. The Court opined that the writ of mandamus can be issued where an authority vested with a power improperly refuses to exercise it and directed the municipality to implement a planning scheme.
In State of West Bengal v. Nuruddin(1998) 8 SCC 143 case, the Supreme Court held the writ of mandamus is a personal action where the respondent has not done the duty they were prescribed to do by law. The performance of the duty is the right of the applicant.
In The Praga Tools Corporation v. C.V. Imanual, 1969 and Sohanlal v. Union of India, (1957) the Supreme Court held that mandamus might under certain circumstances lie against a private individual if it is established that he has colluded with a public authority.
Then, in the case of Manjula Manjori v. Director of Public Instruction, the publisher of a book had applied for the writ of mandamus against the Director of Public Instruction for the inclusion of his book in the list of books which were approved as text-books in schools. But the writ was not allowed as the matter was completely within the discretion of D.I.P and he was not bound to approve the book.
In the case of Binny Ltd. & Anr v. V. Sadasivan & Ors (2005), the Supreme Court laid down the scope of mandamus. It stated that a writ of mandamus is not applicable against any private wrong. It can be issued only when any public authority exercises its duty unlawfully or refuses to perform its duty within the ambit of the law.
In the case of Ramakrishna Mission v. Kago Kunya (2019), The Supreme Court ruled that where a contract is of private nature or has no connection with any public authority, it does not fall within the purview of the writ of mandamus.
Prohibition: To prevent a lower court or tribunal from exceeding its jurisdiction.
In, Brij Khandelwal v. India (1975) the Delhi High Court refused to issue a prohibition against the Central Government from engaging in a boundary dispute agreement with Sri Lanka. The judgment was founded on the basis that there is no bar against the government performing executive or administrative duties. With the idea of natural justice and the growth of the concept of fairness, there is no longer a tolerable view, even in administrative tasks. If any of the grounds on which the writ of prohibition is issued is present, the writ can now be issued to anybody, regardless of the nature of the duty fulfilled by it. Prohibition is currently considered as a broad remedy for judicial control of impacting quasi-judicial as well as administrative actions.
In the case, S. Govind Menon v. Union of India (1967) a Writ of prohibition was issued by a higher court, namely the Kerala High Court, to a lower court in order to take over jurisdiction that was not initially vested, or in other words, to compel lower courts to retain their jurisdictional limitations. The writ can be issued when there is an excess of jurisdiction as well as when there is an absence of jurisdiction.
In the case, Hari Vishnu v. Syed Ahmed Ishaque (1955) dealt with distinctions between writs of prohibition and certiorari. The verdict, in this case, distinguished between certiorari and prohibition writs and said that when the lower court issues a decision, the petitioner must file a certiorari petition since prohibition writs can only be submitted when judgment has not yet been given.
In this case, Prudential Capital Markets Ltd v. The State of A.P. and others, (2000) it was questionable whether the prohibition writ could be issued against the district forum/state commission which had already passed judgments in the depositors’ consumer cases. The Court held that after the execution of the order, the writ of prohibition cannot be issued, the judgment can neither be prevented nor stopped.
Certiorari: To quash an order passed by a lower court, tribunal, or authority.
In Surya Dev Rai v. Ram Chander Rai & Ors., the Supreme Court has explained the meaning, ambit and scope of the writ of Certiorari. Also, in this it was explained that Certiorari is always available against inferior courts and not against equal or higher courts, i.e., it cannot be issued by a High Court against any High Court or benches much less to the Supreme Court and any of its benches.
Then in the case of T.C. Basappa v. T. Nagappa & Anr., it was held by the constitution bench that certiorari may and is generally granted when a court has acted (i) without jurisdiction or (ii) in excess of its jurisdiction.
In Hari Bishnu Kamath v. Ahmad Ishaque the Supreme Court said that “the court issuing certiorari to quash, however, could not substitute its own decision on the merits or give directions to be complied with by the court or tribunal. Its work was destructive, it simply wiped out the order passed without jurisdiction, and left the matter there.” In Naresh S. Mirajkar v. State of Maharashtra , it was said that High Court’s judicial orders are open to being corrected by certiorari and that writ is not available against the High Court.
Quo Warranto: To inquire into the legality of a person's claim to a public office.
In the case of G.D. Karkare v. T.L. Shevde, the High Court of Nagpur observed that “In proceedings for a writ of quo-warranto, the applicant does not seek to enforce any right of his as such nor does he complain of any non-performance of duty towards him. What is in question is the right of the non-applicant to hold the office and an order that is passed is an order ousting him from that office.”
In the case of Bharati Reddy v. The State Of Karnataka (2018), the Hon’ble Supreme Court held that a writ of quo warranto cannot be issued based on assumptions, inferences, or speculations concerning the fact of accomplishment of qualifying conditions. There must be an establishment of the fact that a public officer is abusing lawful powers not vested to him within the public authority.
Direct Access to Supreme Court: Unlike Article 226, which pertains to the High Courts and enables individuals to seek writs for enforcement of their fundamental rights, Article 32 provides a direct avenue to the Supreme Court for this purpose.
Suspension During Emergency: During a proclamation of Emergency, the right to move the Supreme Court under Article 32 can be suspended. However, the suspension does not extend to fundamental rights guaranteed under Articles 20 and 21 (protections in case of conviction and protection of life and personal liberty, respectively).
ReferencesLegal Service IndiaThe Legal QuotientBlog Ipleaders
