Constitutional Philosophy of Writs

April 28, 2023

This article has been written by Ms. Akankshya Nayak a 1^st year LL. B student from Symbiosis Law School, Pune College.

INTRODUCTION

The Constitution establishes the basis for governance. It establishes the basic organs and structure, functions, composition, and powers of government by laying out the basic governing set of principles or key rules of administration. The philosophical view was that for a strong and independent country, the organs and relationships between the govt.

SOUL & HEART OF CONSTITUTION: ART. 32

Under A.32 and 226 of the Indian Constitution, the Supreme Court and High Courts have writ jurisdiction to enforce/protect an individual’s basic rights. A Writ is a Court instrument or order by which the Court (Supreme Court or High Courts) commands an individual, official, or authority to do or refrain from doing anything.

A.32 addresses the ‘Right to Constitutional Remedies,’ or the right to petition the Supreme Court for the enforcement of the rights granted in Part III of the Constitution.

Except in cases of emergency, the Article cannot be suspended. During an emergency, the Supreme Court stated in the cases of Jabalpur v. S.S Shukla and Romesh Thappar v. State of Madras that the citizen loses his right to approach the court U/A.32 is one of the most important safeguards that can be established for the individual’s safety and security.

RECENT TRENDS

The court wondered why the petitioners in the case of journalist Siddique Kappan could not proceed to the High Court. It has requested comments from the Centre and the UP government, and the case will be heard later this week.

The same Bench urged him to approach the High Court first in another case citing A.32, brought by a Nagpur-based man detained in three cases for alleged defamatory content against Maharashtra CM Uddhav Thackeray & Ors.

In another case, a three-judge Bench of the Supreme Court issued a contempt notice to the Assistant Secretary of the Maharashtra Assembly, who, in a letter to Republic TV editor-in-chief Arnab Goswami, questioned him for filing the breach-of-privilege petition. The court therefore stated that the right to petition the Supreme Court under Article 32 is a fundamental right in and of itself.

EVOLVEMENT OF WRITS

Writs are one of the fundamental rights that provide the authority to safeguard the other fundamental rights. Writs are the Court mechanism that ensures the fundamentality of the rights guaranteed by Part III of the Constitution.

TYPES

1. Habeas Corpus Writ: “Habeas corpus” means “to have the body.” The writ is in the form of an order, requiring the person who has detained another to inform the court on what grounds the person has been detained. If the prosecution cannot provide a legitimate justification, the court will release the detained person. As a result, Habeas corpus provides an immediate and effective remedy for illegal incarceration.

This remedy is accessible not only against the government, but also against individuals. In general, while granted a writ of Habeas Corpus, the court will not give compensation; but, the court may pay compensation in order to effectively enforce the right.

The Supreme Court observed in Rudul Sah v. the State of Bihar that compensation is one of the ways in which A. 21 is avoidable/preventable.

2- Writ of Mandamus: The term “Mandamus” means “we command.” It is a writ issued by the court to a public authority requesting that it perform the public duty imposed by law.

In Kumari Shrilekha Vidyarthi v. the State Of Uttar Pradesh, the Supreme Court ruled that public officials must behave fairly even in contractual situations, and if they do not, citizens can seek redress under Article 226.

While issuing writs of mandamus, the Locus Standi norm is scrupulously obeyed. The petitioner must demonstrate that he has the legal right to have public duties enforced in his favour.

It is a discretionary remedy, and the High Court may decline to issue mandamus if an alternative remedy for redressing the alleged injury is available. In the case of basic rights enforcement, however, the question of alternative remedy does not weigh heavily on the Court because it is the obligation of the High Court or the Supreme Court to enforce fundamental rights.

3- Writ of Prohibition: This is a preventive writ. It is an order directed to a subordinate tribunal or court prohibiting it from continuing with the proceedings on the grounds that the proceedings are not in accordance with the court’s jurisdiction or there is some error obvious on the face of the record. This writ prohibits the court and other quasi-judicial authorities from usurping authority and exercising jurisdiction that does not belong to them.

Hence, a writ of prohibition is possible while the proceedings are pending and before the order is issued. The goal is to ensure that a lower court or tribunal’s authority is appropriately exercised and that it does not usurp jurisdiction that it does not have.

4. Writ of Certiorari: The term “Certiorari” means “to certify.” This writ is issued to correct a subordinate court’s or tribunal’s mistake of jurisdiction. It is used to determine whether or not authorities have exceeded their authority. It is also a type of corrective writ in which the court has supervisory jurisdiction.

The writ of certiorari’s aim is not simply negative in the sense that it is used to quash an action, but it also incorporates affirmative action. It has both preventative and curative properties.

The Supreme Court issued a writ of certiorari in A.K. Kripak v. UOI to reject the Indian Forest Service selection list on the grounds that one of the shortlisted candidates was an ex-officio member of the selection committee.

5. Writ of Quo-Warranto: “Quo-warranto” means “What is your authority?” It is a legal remedy for improper use of public office. The court summons the person holding the public office to demonstrate to the court how or by what authority he holds the office. If he lacks authority, he may be removed from his position. This writ essentially controls executive action in the manner of appointing appointments to public offices. It is critical that the office be a public one rather than a private one. The owner. The claim of office must be asserted by housing real occupation.

The Delhi High Court refused to issue a writ against Chief Justice of India, Justice Ray, in P.L. Lakhan Pal v. A.N.Ray, claiming it would be fruitless because three judges senior to him had already resigned. Even though it was expected that the appointment of the Chief Justice of India should be based on seniority, Judge Ray becomes the seniormost and, as such, can be re-appointed.

THE RELATIONSHIP BETWEEN THE WRIT OF PROHIBITION AND THE WRIT OF CERTIORARI:

These two Complementary Writs are also referred to as Sister Writs. Both writs are issued in response to improper subordinate court procedures. The pronounced illegal judgement is overturned in certiorari. While illegal procedures are underway, the writ Court transfers the case to the court that is competent. The only distinction between these two writs is this.

CONCLUSION

The first and greatest purpose of the Constitution’s Preamble is to provide social, economic, and political fairness for all of its residents. The constitution’s preamble. It is the nation’s guiding concept since it outlines the key goals that the legislative sought to achieve. The social changes envisaged by the Constitution’s drafters were sought to be achieved through the exercise of fundamental rights by individuals and by following the direction of the state’s policy towards the goals set out in Chapter IV of the Constitution, which specifies directive principles of state policy. The judiciary was established in the Constitution to ensure the efficient application of these ideas and purposes in real life, as well as to prohibit the abuse of these rights and liberties. It is a trite adage and a Latin maxim ubi jus ibi remedium, which indicates that whenever wrong is committed, the law gives a remedy. As a result, the court was established to fulfil this concept effectively, and when a remedy is provided for an infringement of any right, the right becomes more effective. To improve access to justice, the judiciary loosened the locus standi rule in favour of a person acting in good faith and having a sufficient interest in Public Interest Lawsuit proceedings (here in after referred as PIL). The power to issue writs is discretionary, but it has no boundaries, and such discretion can be employed only on the basis of good legal grounds. Lack of arbitrary power is the primary requirement for the notion of rule of law, which underpins the entire constitutional system.

REFERENCES

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April 28, 2023