Writ and Article 32 Explained in simple words for UPSC

Warning - This is for serious UPSC aspirants who want to be an IAS, do not waste your Time and Data if you are not serious about your future, you can watch shorts, and time pass UPSC channel which has a single-minded focus to sell you a course.

 

 

 

 

It was a theory question but Difficult to attempt.

 

With reference to the writs issued by the Courts in India, consider the following statements: UPSC pre 2022

1. Mandamus will not lie against a private organisation unless it is entrusted with a public duty.

2. Mandamus will not lie against a Company even though it may be a Government Company.

3. Any public-minded person can be a petitioner to move the Court to obtain the writ of Quo Warranto.

 

Which of the statements given above are correct?

(a)        1 and 2 only

(b)        2 and 3 only

(c)        1 and 3 only

(d)        1, 2 and 3

 

Solution 

C

Concept Explained

 

Right to constitutional remedies [Article 32]

 

What	FR [A.12-35][Part 3]
Why	It provides effective machinery for FR enforcement, if and when they are violated. [only FR are protected by A.32---[sine qua non---essential condition]]
FR are real	The right to get FR protected is in itself an FR.
Dr Ambedkar	"an Article without which this constitution would be a nullity. It is the very soul of the Constitution and the very heart of it".
SC said	Basic Feature  [can not be taken away- even by amendment]

 

Main Provision of Article 32

 

1. SC shall have the power to issue directions or orders or writs for the enforcement of any of FR.

 

2.Parliament can empower any other court[not include HC bc A.226] to issue directions,

orders and writs of all kinds.

 

 

(d) President can Suspend A.32 during a National emergency [U/A 359]

 

SC vested with the ‘original’ and ‘wide’ powers to defend and guarantee FR .

How can we say that SC has ‘original’ and ‘wide’ powers?

 

Solution

-Original, because an aggrieved citizen can directly go to the Supreme court[SC], not necessarily by way of appeal.

 

-Wide, because its power is not restricted to issuing of orders or directions but also writs of all kinds.

 

When FR violated whether to go to SC or HC?

 

SC has ruled that where relief through the High court{HC} is available U/A 226, the aggrieved party should first move the high court.

 

In the case of the enforcement of Fundamental Rights, the jurisdiction of the Supreme Court is original but not exclusive. 

It is concurrent with

the jurisdiction of the high court under Article 226.

 

What does the word Original means?

 

Solution - Original means aggrieved citizens can directly go to SC, not necessarily by the way of appeal.

 

Note - The word original is confused with original jurisdiction[Refer SC chapter] - to remove that word Writ jurisdiction is used for Writ-related power.

 

2. SC Exclusive original jurisdiction is wrt Federal dispute.

 

3. But Writ jurisdiction is not exclusive--- concurrent with the jurisdiction of HC U/A 226.

 

4. HC Writ jurisdiction is wider because it can issue a writ for FR and other purposes but SC can issue a writ only for FR violation.

 

WRITS[Borrowed from English law]

 

Article 32	SC can issue Writ & Parliament can empower any court to issue the writ.
A.226	HC can issue the writ

 

Note - At present only SC & HC can issue the writ.

 

Q- What is the difference between Writ Jurisdiction of SC & HC?

 

Basis	SC	HC	Comment
Can issue for	Enforcement of FR	FR + any other purpose[enforcement of an ordinary legal right[RT property]]	SC writ Jurisdiction is narrower than HC
can issue writs against a person or government	throughout the territory of India	located within its territorial jurisdiction or outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction.	Territorial Jurisdiction of SC for issuing  is Wider than HC
Can refuse to use Writ jurisdiction	No, bc A.32 FR	Yes , U/A.226--- Discretionary	SC defender and guarantor of FR

 

 

Writ	Meaning	Significance	Issued against	Can't issued
Habeas Corpus	‘to have the body of’	writ is a bulwark[Defensive wall] of individual liberty against arbitrary detention.	Issued against both public authority and Private individual	If detention is lawful.
Mandamus[PUBLIC official + Official duty]	‘we command’	Asking public officials to perform their official duties that he has Failed/refused to perform.	any public body, a corporation, an inferior court, a tribunal or government	(a) against a private individual or body[pre-22]; (b) to enforce departmental instruction that does not possess statutory force; (c) when the duty is discretionary and not mandatory; (d) to enforce a contractual obligation; (e) against P or G (f) against the chief justice of a high court acting in judicial capacity
Prohibition[Stay order]   [M- Direct Activity ]   [P-Direct inactivity]	‘to forbid’	Issued by a Higher court to a lower court to prevent them from exceeding its Jurisdiction[Extent of power]	Judicial and Quasi-judicial authorities	not available against administrative authorities, legislative bodies, and private individuals or bodies
Certiorari	to be [certified/ informed][We Check]	higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case.   2.issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.	1.judicial and quasi-judicial authorities   2.SC in 1991 said , administrative authorities affecting rights of individuals.	Against legislative bodies and private individuals or bodies.
Quo-Warranto	‘by what authority or warrant’	enquire into the legality of claim of a person to a public office.   it prevents illegal usurpation of public office by a person.	only in case of a substantive public office of a permanent character created by a statute or by the Constitution.	in cases of ministerial office or private office.

 

Note -[Pre 2022] Unlike the other four writs, Quo-Warranto can be sought by any interested person and not necessarily by the aggrieved person.

[i.e only QW no locus standi][the above statement is from Laxmikanth but I think and many other book think that Even for Haebus corpus and PIL locus standi ]

 

Trick - Pre specific

 

Used against	Writ
Entire state	HC
Lower court	C,P,M
Executive	M, Q

 

Prohibition	Certiorari
Preventive	Preventive as well as curative
	Can be used against administrative authorities

 

 

How can we say Certiorari is a curative writ?

When the Court is of the opinion that a lower court or a tribunal has passed an order which is beyond its powers or committed an error of law then, through the writ of certiorari, it may transfer the case to itself or quash the order passed by the lower court or tribunal.

 

Mandamus	[man मस्ती मे था we command u to do public duty]
Example of How to use Mandamus	Step 1 - Find Executive body and its duty ---- In Delhi we have Delhi jal Board and its duty is to supply water
	Step 2 - If not doing its duty despite of being approached   What if they are not supplying water to your area and inpite of complaint there is no response from their side
	Step 3 ---Then we can go to Delhi HC and can ask for writ of mandamus then court will command Executive to do its duty