ARTICLE 32 AND 226: THE HEART OF THE INDIAN CONSTITUTION.

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We frequently discuss rights, but do you understand what the term “rights”
means? A person’s rights are defined as claims made by an individual that
is necessary for his or her own growth and are acknowledged by society or
the state. These are the fundamental normative norms regarding what is
allowed or due to individuals, according to any legal system, social
convention, or ethical theory. They are political, civic, or moral principles of
freedom. Rights are frequently seen as pillars of society and culture and are
therefore considered vital to civilisation.

The constitution of India offers Indian citizens 6 fundamental rights as
follows:

● Right to Equality (Articles 14-18)
● Right to freedom (Articles 19-22.)
● Right against Exploitation (Articles 23 and 24)
● Right to Freedom of Religion (Articles 25-28: )
● Cultural and Educational Rights (Articles 29-30)
● Right to Constitutional Remedies (Article 32)
● Right to Education (RTE) (The 86th Constitutional Amendment added
the right to education by creating a new Article 21A in the Chapter on
Fundamental Rights in 2002.)

All these rights are crucial for the development of an individual and the
nation. But have you ever wondered what if any of these rights are violated?
Fundamental Rights are justiciable. They are enforceable because everyone
has the right to seek legal assistance if their rights are infringed.

Article 32 and Article 226 of the Indian Constitution offer remedies and
enforcement of rights stated in Part III in order to preserve these
fundamental rights. Articles 32 and 226 of the Constitution grant the right
to appeal to the Supreme Court and the High Court, respectively, following
proper procedures. This privilege is available to anybody whose fundamental rights
have been infringed.

The citizens of India have five sorts of writs under Article 32 and Article 226
of the Indian Constitution. The definitions and applicability of these writs
vary.

WHAT IS A WRIT?
A writ is a formal written order issued by someone authorised to do so,
whether governmental or judicial. As a result, a writ can be thought of as a
formal written order issued by a court with the jurisdiction to do so. The
order can be issued to act or abstain from acting, in a particular way. The
constitution of India offers 5 writs to its citizens. They are as follows:

HABEAS CORPUS:

Habeas corpus is a legal phrase that means “you may have the body of.”
When a person is wrongfully held, this writ can be utilised. The court uses
this writ to order that the person who has been detained be brought before
the court to have the legitimacy of his imprisonment examined.
Normally, it is the arrested person who applies for this writ. However, if he is
unable to do so- for any reason whatsoever, a friend or a relative can also
file a petition. No formalities are prescribed in this regard and even a
telegram sent by a prisoner to a judge was treated as a Habeas Corpus
Petition.

Circumstances under which the writ of Habeas Corpus can be utilised are:
● When a person is arrested they are not produced in front of a
magistrate within 24 hours after their arrest, excluding travel time.
● When a person gets arrested despite the fact that he has broken no
laws.
● When a person is detained with the intent to cause harm.

Circumstances under which the writ of Habeas Corpus cannot be utilised
are:

● When the person or authority who is the subject of a writ of habeas
corpus does not reside within the court’s territorial jurisdiction.
● When a person is detained in line with the law.

Case: Sunil Batra vs Delhi Administration, 1980
The Supreme Court enlarged the scope of habeas corpus in the case of Sunil
Batra versus Delhi Administration, 1980, to include inmates who were
subjected to cruel treatment by jail officials. In this instance, the court was
found to have the authority and obligation to protect the inmates from this
heinous behavior, and that it can utilise the habeas corpus writ to impose
jail humanism.

In another case, a letter written by a prisoner in Tihar jail was sent directly to
a Judge of the Supreme Court complaining about acts of torture in jail was
treated as Habeas Corpus Petition and proceedings were initiated against
jail authorities. No formalities are prescribed in this regard and even a
telegram sent by a prisoner to a judge was treated as Habeas Corpus
Petition.

MANDAMUS:

The writ of Mandamus (literally meaning, ‘we command’) is issued to
compel the performance of a public duty by a public official. This writ can be
filed not only against the executive authorities, but also against the judicial
and quasi-judicial authorities

Case- State of Mysore v K.N.Chandrasekhara
The high court issued a writ of mandamus in this matter, ordering the
public service commission to include the names of the six petitioners on the
list compiled by the Commission under Rule 9(2) of the Rules for
appointment to the Munsiff cadre. The appointment of ten candidates
whose names were included in the list under R. 9(2) as fit for promotion
could not be disturbed, according to the High Court; nevertheless, the six
applications should be added to the list and appointments made from that
list.

The following 4 conditions must be satisfied before this writ can be issued
by the court:

● The petitioner must show that he has a legal right to obtain the
performance of a legal duty.
● Such a duty must be imposed by law and not by a contract.
● The duty must be ministerial, and not discretionary, in nature.
● The right which is claimed by the petitioner must be a judicially
enforceable right.


A writ of Mandamus will be refused if:
● It is sought against the President of India or the governor of a state for
the exercise or performance of powers and duties of their office.
● If an equally efficacious alternate remedy is available to the petitioner.
● if it is sought against a private party- unless such private party is
contravening any of the provisions of the constitution or any other
law in collusion with the government or any of its officers.

PROHIBITION:

This writ of prohibition is a judicial writ issued by a superior court to an
inferior court for preventing an inferior court from usurping a jurisdiction
which it does not have. In other words, it is a writ issued to compel courts to
keep within the limits of their jurisdiction.


This writ is often issued to tribunals when the tribunal is :
● Acting without jurisdiction
● Acting beyond its jurisdiction
● Acting in violation of rules of natural justice; or
● Proceedings under an unconstitutional law; or
● Acting in contravention of a fundamental right


The writ of prohibition differs from the writ of mandamus where
mandamus commands activity and prohibition commands inactivity. Also,
the writ of prohibition is not available against public officers who are not
vested with any judicial function whereas the writ of mandamus is available
against all public officers.

Case- East India Commercial Co. Ltd. v Collector of Customs
The Supreme Court notes in this instance that a writ of prohibition is an
order instructing subordinate courts and tribunals to halt proceedings on
the grounds that the proceedings are being conducted with excessive or lack
of jurisdiction.

CERTIORARI:

‘Certiorari’ means ‘to be lawfully informed of’. Such a writ is issued by a
superior court to an inferior court, requiring the record of the proceedings
pending in the inferior court, so that the latter may deal with the same to
ensure justice is done in the matter.

The writ can be issued in the following matters:
● For the enforcement of a fundamental right; or
● For quashing a decision which is without, or in excess of jurisdiction ;
or
● For quashing a decision where there is an error of law apparent on the
record; or
● For quashing a decision of a court or tribunal which is not properly
constituted; or
● For violation of the principles of natural justice.

This writ differs from a writ of prohibition mainly in that it is a remedial,
rather than a preventive measure. A writ of prohibition can be filed at an
early stage of the proceedings complained of, and is a preventive, rather
than a remedial measure.

Case: Rafiq Khan v State of U.P.
In the case of Rafiq Khan v State of Uttar Pradesh, a sub-divisional
The magistrate does not have the authority to amend a Panchayati Adalat’s
judgment or sentence under section 85 of the Uttar Pradesh Panchayat Raj
Act, 1947. He can either quash the order or revoke the Panchayati Adalat’s
jurisdiction. In this instance, the ruling was changed by the sub-Division
Magistrate, who upheld the accused’s conviction in one of the offenses
while quashing his conviction in the other. As a result, the Panchayati
Adalat’s order was modified by the sub-Division Magistrate.
The Allahabad High Court ruled that a sub-divisional magistrate’s ruling
violated Section 85 and quashed the judgment by issuing a writ of
certiorari.

QUO-WARRANTO:

This literally means ‘by what warrant’ or ‘by what authority’. It is issued to
prevent the illegal assumption or usurpation of any public office.

Case Study- University of Mysore v C.D. Govind Rao
Facts- respondent’s claim that appointment of appellant no. 2 is illegal as
he does not fulfill the first condition mentioned in the advertised inviting
application. In respect of which the High Court issued the writ of quo
warranto and held the appointment of respondent no. 2 (Anniah Gowda)
illegal. Appellant raises an appeal before the Supreme Court. The decision of
the High Court was held incorrect by the court, as the High Court didn’t take
into consideration the degree of Master of Arts of Durham University
obtained by Anniah Gowda.
It was held that the High Court was correct in finding that Anniah did not
possess a high second class degree of an Indian University but he did
possess the alternative qualification of Master of Arts of a foreign
University.

A writ of quo warranto is issued by the court when the following five
conditions are fulfilled:

● The office in question is a public office
● Such public office is substantive in nature
● The office must have been created by the constitution or by any other
law
● The respondent must have asserted his claim to such an office.
● The respondent should not be legally qualified to hold the office or to
remain in office.
If these conditions are satisfied, even a private person can approach an
appropriate court for the issue of a writ of quo warranto.

It has been held that a Judge of a High court, the chief minister of a state,
the Advocate General, the Chairman of a municipality, and a member of the
University Senate are all persons who hold a public office and a writ can be
issued against them in appropriate cases.

CONCLUSION:

Article 32 of the Indian Constitution gives the Supreme Court the power to
issue Writs, whereas Article 226 gives the power to High Courts. These Writs
are orders issued by the courts for the performance of an act by a public
authority that is obligated to do so.
As a result, all of these Writs have played an important role in upholding
people’s rights and expanding the scope of judicial review.

REFERENCES:

https://indiankanoon.org/search/?formInput=case%20studies

History of courts, legislature and legal Profession in India by Dr. S.R. Myneni.

https://www.latestlaws.com/articles/analysis-of-types-of-writs-under-constitution-of-india-landmark-cases-by-tanu-kapoor/

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