This section deals with the writs. The writs ate obviously intended to enable the Supreme Court and High Court to issue them in grave cases where the subordinate tribunals or bodies or officers act wholly without jurisdiction, or in excess of it, or in vacation of the principles of natural justice, or refuse to exercise jurisdiction vested I them, or there is an error apparent on the face of the record, and such act, omission, error or excess, has resulted in manifest injustice. However, extensive the a jurisdiction maybe it seems that it is not so wide or large as to enable the court to convert .itself into a court of appeal and examine for it self the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made.
Art. 32 of the constitution of India give the
right to move the Supreme Court by appropriate proceeding. For enforcement of
the rights conferred by part III, of the constitution of India. The provision
merely keeps open the doors of the Supreme Court in much of the same way as is
used to be said, the doors of chancery court were always open the state cannot
place any hindrance in the way of an aggrieved person seeking to approach the
supreme court. This is logical enough for it is against state action that
fundamental rights are claimed. But the guarantee goes no further at least on
the terms of Art. 32 Having reached the Supreme Court, the extent or manner of
interference is for the court to decide. It is clear that every case does not
merit interference.
That must always depend upon the facts of the
case. In dealing with cases which have come before it, the Supreme Court has
already settled many principles on which it acts. The Supreme Court does not
take action in cases covered by the ordinary jurisdiction of the civil court that
is to say; it does not convert civil and criminal actions into proceedings for
the obtainment of writs. Although there is no rule or provision of law to
prohibit the exercise of its extraordinary jurisdiction, the Supreme Court has
always insisted up on recourse to ordinary remedies or the exhaustion of other remedies.
It is in rare cases, where the ordinary process of law, appears to be
inefficacious that the Supreme Court interferes even where other remedies are
available. This attitude arises from acceptance of a salutary principle that
extraordinary remedies should not take the place of ordinary remedies.
Then again the Supreme Court refrains from
acting under Art. 32, of the Constitution, if the party has already moved the
High Court under Art.26. This constitutes a comity between the Supreme Court
and the High Court. Similarly, when a party had already moved the High Court
with a similar complaint and for the same relief and failed, the Supreme Court
insisted in an appeal to be brought before it and does not allow fresh
proceedings to be started. In this connection the principle of res-judicata has
been applied. The citizens are ordinarily entitled to appropriate relief under
Art. 32 once it is shown that their fundamental rights have been illegally or
unconstitutionally violated. Therefore; Art. 32 does not give merely a discretionary
power to the Supreme Court t grant an appropriate relief.
To enforce fundamental rights, resort can be
had to art. 32 of the Constitution of India. Art. 32 is not to be invoked for
infringement of a personal right of contract, nor is to be invoked for
agitating questions which are capable of disposal under special enactments. The
amount there is a threat to a threat to fundamental rights to a citizen, he is
entitled to approach the High Court under Article 32 not with standing actual
threat has not taken place. The general attitude of the Supreme Court is not to
answer any hypothetical question or a question if the same does not arise out
if pleadings. (Sanjeev Coke V. Bharat Coking. AIR 1983 SC 239) Art 32 provides
in some respects for more effective remedy through Supreme Court then Art. 226
does through the High court.
But the scope of the remedy is clearly
narrower in that it is restricted solely to enforcement of fundamental right
conferred by part III of the constitution. Art. 32 does not merely confer power
on the Supreme Court as Art. 226 does on the High Court to issue certain writs
for the enforcement of the rights conferred by part III, or for any other
purpose, as part of its general jurisdiction. Art. 32 provides a "Guaranteed"
remedy for the enforcement of those rights and this remedial right is itself
made a fundamental right by being included in part III, the Supreme Court is
thus the protector and guarantor of fundamental right and it cannot refuse to
entertain applications seeking protection, against infringements of such
rights.
So and application for relief can be made to
the Supreme Court direct. Art. 226 is wider in its scope vis-a- vis Art. 32, in
that Art. 226 can be availed of both for enforcement of fundamental rights. But
also of ordinary legal rights. Art.32 (3) enables parliament to make a law
empowering any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under
clause (2) thereof one thing to be noticed is that the parliament can only
empower any other court to exercise any of the powers exercisable by the
Supreme Court under clause (2), it cannot confer guaranteed right mentioned in
clued (1) on any person to move that curt. That is to say, the court to courts
to which such powers are given would be in the same position as the High Court in
respect of the enforcement of the fundamental rights. In short no person would
have a guaranteed right to move any such other court for the enforcement of
fundamental lights. A discretionally jurisdiction similar to that of the High
Court be . conferred on them.
Application for writ and its
maintainability
In the case of K.K. Kochunni v.state of
Madras (AIR 1959 SC 725) it was observed that the Supreme Court is b9und to
entertain a partition under Art. 32 of the constitution and to decide the same
on merit even if it may encourage litigants to file many petitions under Art.
32 instead of proceedings by way of a suit. That consideration cannot by it
self, be a cogent reason for denying the fundamental right of a person to approach
the Supreme Court for the enforcement of his fundamental right which may,
primafacie, appear to have been infringed. Even, if the existence of other
adequate legal remedy may be taken into consideration by the High Court in deciding
whether it should issue any of the prerogative writs on an application under
Art.226 of the constitution, the Supreme Court cannot on a similar ground
decline to entertain a petition under Art. 32, for the right to move the
Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by part III of the constitution is itself, a guaranteed right. The
mere, existence of an adequate alternative legal remedy cannot perse be a good
and sufficient ground for throwing out a petition under Art. 32, if the existence
of a fundamental right and a breach, actual or threatened, of such right is
alleged and is primafacie established on the petition. In the following cases
or circumstances writ petition under 32 lie: -
(a) Where action is taken under an ultra
vires statutes,
(b) Where the statute is intravires but the
action taken is without jurisdiction, and
(c) Where the action taken is procedurally
ultra-vires - The scope of Art-32 is being enlarged by judicial activism. In
MC. Mehta V. Union of India (AIR 1987 SC 1086) it was pointed out that the
court can entertrain claim for compensation suffered by a citizen on account of
violation of fundamental rights.
Amendment of writ petition which cause no
injustice to other side, avoids multiplicity of proceedings, and is necessary
for determining real controversy of matter, should be allowed. Aggrieved party
can file a petition under Art. 32. and a petition for write under Art. 32 is
not maintainable unless there has been a violation of some fundamental right. In
the case of Ravindra Nath Bose V. UOI (1970, 1SCC84) Supreme Court held that no
relief should be given to petitioners who, without any reasonable explanation,
approach the Supreme Court under Art 32 of the constitution after in ordinate
delay. The Supreme Court administers justice in accordance with law and principles
of equity and good conscience.
Applicability of Art. 226: The jurisdiction under Art.226 is to seeing
that the judicial or quasi- judicial tribunals or administrative bodies
exercising quasi- judicial powers, do not exercise their powers in excess of
their statutory jurisdiction, but correctly administer the law within the ambit
of the statute creating them or entrusting those functions to them where the
Act has created its own hierarchy of officers and appellate authorities, to
administer the law and so long as those authorities function within the letter
and spirit of law, the High Court has no concern with the manner in which those
powers have been exercised. Writ jurisdiction is a discretionary and equitable
jurisdiction. But since fundamental rights guaranteed by the Constitution the
courts cannot refuse to enforce them on the ground of discretion. In the case
of other rights the High Court generally refuse to exercise their discretion
(a) Where an alternative remedy is available
to the petitioner,
(b) Where the petition is guilty of laches or
unreasonable delay or acquiescence;
(c) Where the petition has, misrepresented or
suppressed martial facts;
(d) Where it is no equitable to issue a writ;
(e) Where the writ, if issued, would be
futile or ineffective or merely academic, Where the petition has become in
fructuous;
(g) Where the grant of relief depends on
investigation of disputed facts.
The writ jurisdiction of Supreme Court can be
invoked only in cases of actual or threatened violation of fundamental rights
guaranteed by part III of the constitution. The jurisdiction of the High Court
is wider and can be exercised for the protection of fundamental rights as well
as other legal rights. '
WRITS UNDER ARTICLE 32 &
226
1) Habeas Corpus:
It is a writ in the nature of an order
calling upon the person who has detained another to produce the detained person
before the court, in order to let the court know on what ground he has been confined
and to set him free if there is no legal justification for the detention.
The writ is available in every case of
unlawful detention either by an instrumentality of the state or by a private
person. Art. 21 provide that no person shall be deprived of his life or
personal liberty except according to procedure established by law. Art.22
provides protection against arrest and detention in certain cases. Whenever a
case of arrest or detention by the authorities in violation of these provisions
is established writ of habeas corpus would be issued.
The jurisdiction can be invoked not only when
a person is in actual detention but also when there is a real threat to his
liberty and also when a person is on bail. But it cannot be invoked in the case
of detention as a result of conviction on a criminal charge by a court of
competent jurisdiction.
2) Mandamus: The writ of mandamus is a prerogative writ of
a most extensive remedial nature, and is form, a command issuing from the court
directed to any person, corporation inferior court, requiring him or them to do
some particular thing specified which appertains to his or their office and is
in the nature of a public duty. A writ of mandamus maybe granted only in a case
where there is a statutory duty imposed upon the officer concerned and there is
a failure on the part of that officer to discharge that statutory obligation. In
order to obtain a writ of mandamus the petitioner must establish
i. That he has a legal right to the
performance of a legal duly by the respondent.
ii. That such duty is one imposed by the
constitution, a statute, common law or by rules or orders having the force of
law;
iii. That the duty is of a public nature and iv.
That a demand for justice was made and refused.
3) Certiorari:
The object of a writ of certiorari is to keep
the exercise of powers by judicial and quasijudicial tribunals within the
limits of the jurisdiction assigned to them by law and to restrain them from acting
in excess of their authority. Whenever the body of personas, having, legal
authority to determine questions affecting rights of subjects and having the
duty to act judicially act in excess of their authority, certioraris may issue
to quash the decision that goes, beyond jurisdiction. The decision of a
judicial or quasi- judicial tribunal may be quashed by the issue of a writ of
certiorari of one or more a the following grounds ate made out: -
(i)
The tribunal has
acted without or in excess of its jurisdiction,
(ii)
That there is an
error if law apparent on the face of the record;
(iii)
That the
tribunal has acted contrary to the principles of natural justice;
(iv)
That the
tribunal has acted in flagrant disregard of the procedure prescribed.
(v)
That the
tribunal was biased,
(vi)
That the
tribunal has acted malafide.
4) Prohibition :
A writ of prohibition is also directed to
wares keeping judicial and quasi judicial tribunals within the Iimits of their
jurisdiction while a writ of certiorari can issue only after the tribunal has passed
orders a writ of prohibition may be issued while the matter is still pending
before the tribunal. A writ of prohibition is intended to prohibit or restrain
the tribunal from action without or in excess of jurisdiction. A writ of
prohibition is issued to prevent the tribunal from proceeding further, when the
tribunal proceeds to act:
(i) Without or on excess of jurisdiction;
(ii) In violation of the rules of natural justice;
(iii) In utter disregard of the procedure
prescribed;
(iv) In contravention of fundamental rights;
and
(v) Under a law which is ultra-vires of
unconstitutional.
5) Qua-warran to:
In order to invoke the jurisdiction for
issuing a writ of quo-warranto the following conditions have to be satisfied –
(i) That the officer is a public office;
(ii) That it is substantive in character;
(iii) That it has been created by a statute,
or the constitution to by rules having the force of law;
(iv) That the respondent has asserted a claim
to the office; and
(v) That the respondent aid not legally
qualified to hold the office or remain in the office, or that some statutory
provisions have been violated in making the appointment, so that his title to
the office becomes invalid or without legal authority.
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