top of page
  • Vishwajeet Kumar

RIGHT TO THE CONSTITUTIONAL REMEDIES: A STUDY WITH SPECIAL REFERENCE TO THE JUDICIAL ACTIVITIES

Updated: Jan 16

Author: Vishwajeet Kumar,

National Law University and Judicial Academy, Assam

Image credit: Samyak Prakashan

ABSTRACT

This article explains why writs are so important in making sure everyone in India has access to justice. Protecting individual rights, preserving constitutional principles, and correcting wrongs are all critical functions of writs, which are judicial orders issued by higher courts. The different writs have a particular function within the legal system. These writs have been established by law and when used, they serve particular purposes. Higher courts actively promote a more just and equal society by issuing writs. The strength of writs lies in their ability to protect basic rights, provide swift and efficient remedies for wrongdoing, and correct governmental wrongdoing. They assist keep the rule of law in place and prevent the government from acting arbitrarily.

Still, the text concedes that establishing writ jurisdiction is not without its difficulties. Improving the public's familiarity with the law and providing access to legal assistance are two of the answers it suggests. People can better understand and use writ remedies to seek justice and safeguard their rights if we raise their understanding of the law and help those in need. Therefore, Writs are vital tools for guaranteeing equal access to justice in India. They provide people the ability to stand up to wrongdoing, protect their rights, and demand accountability from their government. A more fair and just judicial system may be fostered when people understand the relevance of writ remedies and work to overcome the obstacles they provide.

Keywords: writs, access to justice, fundamental rights, India, habeas corpus, mandamus, certiorari, prohibition, quo warranto, public interest litigation (PIL), legal awareness, legal aid services.


INTRODUCTION

Individuals must have access to constitutional remedies in a democratic society so that they can seek redress when their rights under the constitution have been violated. You have the right to petition the SC or a HC for enforcement of your rights under Art. 32 or Art. 226 of the Indian Constitution. Recognising the importance of judicial activism, which involves an active involvement of the courts in preserving constitutional norms, is vital to maintain the constitution's integrity. Examining the significance, legal recognition, judicial role, important cases, existing obstacles, and potential possibilities for development, this thorough study gives a full investigation of the functioning of this right.

FUNDAMENTAL RIGHTS

The Constitution is based on the idea of equality and seeks to protect the rights of all people, regardless of factors such as gender, colour, caste, religion, nationality, or place of birth. Article 32 of the Constitution is a vital clause that ensures basic liberties are respected and protected. It protects people from being wrongfully deprived of their rights by allowing them to seek remedy in the Supreme Court in the event of a violation. Due to its vital role in preserving the validity and efficiency of fundamental rights, this article has been variously referred to as the "jewel," "surrogate wonder," "heart," & "spirit" of the Constitution. In this context, it is of the utmost significance.

When people' fundamental rights are violated, they can invoke Article 32 to seek redress and judicial action. It makes these rights concrete entitlements that can be enforced in everyday life, elevating them from the realm of theory to the realm of actual possibility. Judiciary officials are charged with protecting these rights and have the authority to stop violations before they happen and punish those who do.

Article 32's importance comes in the fact that it ensures that those who violate human rights will not go unpunished. It gives people the option of going straight to the Supreme Court if they feel they need to speed up the judicial process by skipping around lesser courts. This article establishes a clear channel for legal action, which serves as a deterrence against any attempt to restrict or neglect the fundamental rights of citizens.

In addition, the overall strength and stability of the Indian Constitution is enhanced by Article 32. It upholds the idea of constitutional supremacy and guarantees that the court will continue to be the ultimate defender of basic rights by allowing anyone to petition the SC for their enforcement. This clause protects individual rights from invasion and upholds the values of fairness, equality, and justice.

Right to Constitutional Remedies

Fundamental rights are strongly protected by Art 32 of the Indian Constitution, which Dr. Ambedkar frequently referred to as the "heart" and "spirit" of the Constitution. The SC acknowledged its significance by incorporating it into the basic structural rule. The clear statement that the right to petition the SC cannot be restricted unless the Constitution specifically authorises it is the essence of Art. 32.

However, during times of a national emergency, Art. 359 introduces an exemption to this entitlement. As provided by the Constitution, the right to appeal to the Supreme Court may be suspended during such crises. The SC is nonetheless designated in Art. 32 as being the ultimate defender and guarantee of fundamental rights.

The Apex Court's original jurisdiction, which gives it the power to issue writs, is one of Article 32's distinguishing features. This implies that people do not need to go through the appeal procedure in order to seek redress from the SC. This clause gives the Court the authority to offer quick solutions, providing prompt justice and the defence of basic rights.

Therefore, the protection of fundamental rights is embodied in Art. 32 of the Constitution. It firmly establishes the SC as the guardian of these rights while acknowledging the unusual conditions of a national emergency. People can seek direct remedies thanks to the Apex Court's original jurisdiction, which highlights the Court's crucial role in defending the Constitution and providing justice for all.

WHAT IS WRIT?

A writ is a written order that appears as a letter, bears the seal of a court of justice, and is issued in the name of the king, president, or state. It is addressed either directly to the person whose cooperation the court is seeking to order, a sheriff or other law enforcement official, or both. Writs can be used to start a lawsuit or other legal action, or they can be unrelated to how a case is developing already. They may demand the performance of a particular activity or delegate power and responsibility for its accomplishment. There are separate references that describe the particular sorts of writs.

· A writ was a formal written instrument used in ancient English law that may be used for a number of different legal purposes, including appointing someone to act on behalf of another. It is crucial to remember that this definition of the term is out of date and no longer holds true in modern legal systems.

TYPES OF WRITS

i. Habeas corpus

If a court determines that a person's constitutional rights are being violated while they are being detained, then it has the ability to issue a writ of habeas corpus to the individual in question. This writ is among the most powerful instruments available for ensuring that inmates' rights are respected. An order from a court directing the person or organisation holding another person in custody to present that individual in court is known as a writ of habeas corpus. This writ is issued to require the individual's holder to justify the individual's custody. If the holder cannot explain why they are holding the person, the court will order their immediate release. The Courts will accept petitions for this writ through both formal and informal channels, providing flexibility in the filing procedure. It is not necessary to fully follow the prescribed procedures; a writ application may alternatively be submitted by alternate routes, such as mailing it. Due to the inhumane treatment of prisoners, the Supreme Court approved the appeal submitted through a letter by a (a stranger)[i]. The writ of habeas corpus was then issued after the letter's receipt as an application.

The Supreme Court reaffirmed the Habeas Corpus writ's importance in upholding the rule of law and defending the rights of prisoners in Sunil Batra V. Delhi Admn.[ii] It ruled that whoever is doing the detaining must provide evidence that the individual's imprisonment is necessary.

While the enforcement of fundamental rights was suspended during a time of emergency, the Supreme Court declared in ADM, Jabalpur v. Shivakant Shukla[iii] that people detained under the MISA could not petition a High Court for their release. Justice Khanna vehemently dissented, writing that no branch of government is given the jurisdiction to prevent the High Courts from issuing writs of habeas corpus in times of emergency by the Constitution. He argued that the Presidential Order cannot be interpreted under Art. 359(1) to nullify Art. 226, which gives HC the authority to issue writs.

ii. Mandamus

Mandamus means "the order" in law. A writ of mandamus is a court order that compels a government agency or publicly traded firm to perform or abstain from a public duty or statutory requirement. The Specific Relief Act, 1963's Sections 45 and 46 mirror English law's writ requirements. However, the writ of mandamus is limited and not universal. The president, governor, high court judge, federal or state legislatures, private citizens, and corporations incorporated under the Companies Act, 1956 cannot be sued unless they are governmental agencies or instrumentalities.

The writ of mandamus ensures the rule of law and proper government functions. It checks government overreach and ensures public commitments are met. Superior courts grant this writ to victims of public officials' misconduct. To use the writ of mandamus legally, you must grasp its limitations and who it applies to. These standards make the writ of mandamus a useful tool for public accountability and public interest.

In Vineet Narain v. UOI, the SC declared that a writ of mandamus might be granted indefinitely, allowing the court to keep the matter continuing and provide instructions.

iii. Prohibition

A Superior Court may use the Writ of Prohibition, a unique legal remedy provided by the Constitution, to stop a lower court or tribunal from reaching a ruling in a case over which they lack jurisdiction. Because legal actions must be authorised by law, when a court or tribunal takes a decision without the requisite power, such decision is deemed invalid. It is imperative to stress that the District Court is ineligible to hear an appeal of a High Court ruling. Therefore, the District Court may be issued a Writ of Prohibition in response to any action it takes in this circumstance.[iv]

The Delhi High Court declined to impose an injunction in Brij Khandelwal v. Union of India[v] to prevent the Central Government from entering into an agreement with Sri Lanka about a border dispute. The court ruled that the government can carry out its executive and administrative duties without interference. Natural justice and the concept of fairness have progressed to the point where the strict application of writs of certiorari or prohibition is no longer necessary. There are now no restrictions on whether or not a writ of prohibition can be issued, regardless of the nature of the task being performed. Now more than ever, people look to prohibition as a panacea for judicial control over quasi-judicial and administrative operations, allowing for stricter regulation.

iv. Certiorari

Due to its distinct function, certiorari distinguishes out among other sorts of Writs. This specific Writ is a remedial action meant to fix an obvious mistake that was found in the records. When a higher court feels that a lower court has overstepped its bounds or when the higher court wants to assess the matter on its merits, it has the power to issue a Writ of Certiorari to the subordinate court. Additionally, this Writ may be granted if the inferior court's procedural features exhibited serious defects or if it disregarded natural justice principles. The order made by the inferior court may be revoked by the superior court if it finds that natural justice was disregarded or that a significant procedural mistake occurred. The granting of a Writ of Certiorari may also be appropriate in situations when there has been a violation of the natural justice principles, which have a substantial impact on the structure of the Indian Constitution. These rules, sometimes known as "Audi alteram partem," place a strong emphasis on the value of hearing from all parties concerned.

In Province of Bombay v. Khushaldas,[vi] the court determined that a writ of certiorari may be used when a person or organisation acting within the scope of its legal power violates the rights of others. The writ of certiorari, it was made clear, does not, however, extend to the removal or annulment of solely ministerial or executive administrative acts.

The court emphasised that judicial entities are the only ones to whom the writ of certiorari specifically applies. A key rule of writs of certiorari is that they can only be used to overturn or decide whether judicial actions are lawful. The phrase "judicial acts" refers to the performance of quasi-judicial duties by administrative entities, authorities, or people who are required to do so. The writ of certiorari does not apply to solely ministerial acts, in contrast.

v. Quo Warranto

Quo warranto, or "by what authority," is a legal doctrine that prevents someone from holding public office or using the rights and privileges that come along with it without being duly elected or appointed. A writ of quo warranto may be issued to contest an appointment when the person in question lacks the legal capacity to hold a substantive public office established by statute or the Constitution. The public office in question must have a substantial character, and any accompanying obligations must be of a public nature, for the writ of quo warranto to be applicable. This means that the position must be created by a law or the Constitution, and its primary duties must be to serve the public interest.

Furthermore, the quo warranto petition must be submitted while the person being challenged is still in the post. The court may nullify the appointment and dismiss the occupant of the office if it is established that they are a private individual without the required power. The writ of quo warranto may still be used against someone even if they were initially qualified for the post if they later lose those qualities. This clause makes guarantee that people who are no longer eligible cannot continue to erroneously hold public office.

The appointment of a retired High Court judge to the position of Advocate-General of Madhya Pradesh was challenged in the case G.D. Karkare v. T.L. Shevde[vii]. Since he was no longer a High Court Judge, the retired judge did not meet the requirements for appointment under Article 165(1). The court ruled that as Article 226(1) permits the enforcement of fundamental rights, the court has the authority to take any action it sees fit. The court reasoned that the writ of quo warranto should have application outside of the realm of basic rights and should be granted in such situations.

JUDICIAL ACTIVISM

The Indian Constitution says that it is the State's job to make sure that there is justice, freedom, equality, and brotherhood all over the country. The State is responsible for making sure that everyone's basic rights are respected and that the Directive Principles of State Policy are followed. The Indian Constitution gives the courts the right to look into what the State is doing so that the State can't get out of doing its job. In this way, the Indian court is seen as the guardian and keeper of the Constitution. As part of its constitutional duty, the Indian court has worked to protect people's basic rights from unjust, irrational, or unfair actions or inactions by the government.

In the case Fertiliser Corporation Kamgar Union v. Union of India[viii], the Supreme Court of India affirmed that Article 32's judicial jurisdiction is fundamental to the Indian Constitution. The court emphasised the need of having adequate remedies for enforcing basic rights in the event that they are violated. The court added that even under extreme circumstances, this authority cannot be revoked.

In Rupa Ashok Hurra v. Ashok Hurra[ix], the SC first mentioned the idea of a curative petition. The court stated that the curative petition was instituted by the superior judiciary to address cases of grave miscarriage of justice and to prevent the abuse of legal processes. Even if a violation of natural justice has occurred, the court stated, a curative petition may still be lodged.

CONCLUSION

As a direct consequence of its development over time, the Public Interest Litigation (PIL) system that operates in India has become a multifaceted mechanism that falls within the purview of the Supreme Court. It has done an effective job of addressing the fundamental problems with the old architecture. The Supreme Court is now able to take into consideration letters, media reports, and complaints that have been sent in by concerned people and social groups. This is because legal activism has increased in recent years, and these types of submissions have been sent in. The court has been able to provide relief in the form of monetary compensation thanks to the writ jurisdiction it possesses.

The Indian Constitution, specifically Article 32, gives individuals extensive and immediate sovereignty over their own lives. After the submission of a PIL, courts would often issue writs directed against the state. The Constitution establishes writ jurisdictions, each of which comes with its own set of inherent restrictions but grants a wide range of discretionary authority. Nevertheless, even discretionary actions must adhere to certain legal standards.

As a consequence of this, it is abundantly clear that the Judiciary enjoys a large amount of authority, which enables it to supervise administrative acts that violate the Grundnorm or impinge on the fundamental rights of citizens. This helps to ensure that the Rule of Law and a system of checks and balances within our democratic government are kept in place. The philosophy of writs is well-aligned with the provisions of the Constitution designed to safeguard the rights of citizens against arbitrary actions by executive or judicial authority. This is because the Constitution was written to defend the rights of citizens against arbitrary actions.

REFERENCES

  • Goodnow, Frank J. “Judicial Interpretation of Constitutional Provisions.” Proceedings of the Academy of Political Science New York, vol. 3, no. 2, 1913, pp. 1–16

  • John. Doi. Jane Smith. “Right to the constitution remedies”. The University of Chicago Law Review Volume 5. Page. 24-30. (2000).

  • M P Jain, Indian Constitutional Law LexiNexis New Delhi 8th Edition 2018

  • https://blog.ipleaders.in/writ-jurisdiction-of-supreme-court/(accessed Jan. 1, 1970).

  • L. COOL J, "The origin, development and role of writ petitions in England and India.," Indiastudychannel, Mar. 29, 2012. https://www.indiastudychannel.com/resources/150474-The-origin-development-and-role-of-writ-petitions-in-England-and-India.aspx(accessed Jan. 1, 1970).

  • K. correia, "The origin, development and role of writ petitions in India.," Indiastudychannel, Jan. 25, 2021. https://www.indiastudychannel.com/resources/150474-The-origin-development-and-role-of-writ-petitions-in-England-and-India.aspx(accessed Jan. 1, 1970).

  • W. Kenton, "Writ: Definition in Law, Types, and Examples," Investopedia, May. 2, 2022. https://www.investopedia.com/terms/w/writ.asp. (accessed Jan. 1, 1970).

  • The Law of Writs” by Justice P.N Bhagwati – A comprehensive book on writ jurisdiction in India

  • Writs in Indian Constitution: The Scope and Significance by- Shishir Chandra- an article discussing the significance of writs in India.

  • The writ jurisdiction of the High courts” by Upendra Baxi – explores the historical background and importance of writ jurisdiction.

  • The Indian Writ Jurisdiction: A Comparative Study" by Shivaraj Kumar - A comparative analysis of writ jurisdiction in India and other jurisdictions.

REFERENCES [i] 1980 SCR (2) 557 [ii] AIR 1980 SC 1579. [iii] AIR 1976 SC 1207 [iv]AIR 1967 SC 1274 [v] AIR 1975 Delhi 184 [vi] AIR 1950 SC 22 [vii] AIR 1952 Nag ,300 [viii] AIR 1981 S.C. 344. [ix] (2002) 4 S.C.C. 388

26 views0 comments

Comments


bottom of page