Tuesday, 11 July 2017

Shradha Arora

Rights to Constitutional Remedies- Writs under Art. 32 and 226 of Indian Constitution


Under the common law system, a writ is meant to be a written order, informal in nature which is issued by either by an administrative or judicial body. The aim of this paper is to identify writs as a constitutional remedy. The paper is divided into four parts. The first part would deal with the origin, purpose of writs which would examine the historical developments that took place with respect to writs. The second part of the paper would be specific to the Indian Legal Systems. This part would closely examine the existence and use of writs as per the provisions of the Indian Constitution as a constitutional right to remedy. The third part of the paper would elaborate on all the types of writ remedies and its usage in the Indian Legal System. The last part of the paper would be the conclusion that would deal with appraisal and the critical analysis of writs. The purpose of this paper is to celebrate writs as a powerful constitution remedy and highlight the importance of the same in the Indian Legal System.

The term ‘Writ” was first used in the 16th Century under the English Law. Writs under the English law have a long history, dating back to the medieval period or earlier. The use of writs under the English Legal System was within the court room, wherein specific writs were developed and were used for variety of different forms of action. The term writ clung to the principle that the King was supreme and could do no harm. Writ was mean to be an order of the king, it was issued to the defendant to appear before the court and to show cause against the claim of the plaintiff. The plaintiff had to simply apply to the court for the writ that was to be most relevant to his complaint which was to be sent to the person against whom the complaint was made. It was a sort of a command that ordered him under royal authority to attend the royal court and be accountable for his actions. This development was a part of the establishment of a Court of Common Pleas. Before using writs, the previous system of justice at the royal court of Chancery was tailor-made to suit each case which was highly time and effort consuming. Thus eventually the obtaining of a writ became necessary, in most cases, to have a case heard in one of the Royal Courts, such as the King's Bench or Common Pleas. Some franchise courts, especially in the Counties Palatine, had their own system of writs which often reflected or anticipated the common law writs. The writ was "served" on (delivered in person to) the wrongdoer and acted as a command that he should appear at a specified time and date before the court specified in the writ, or it might command some other act on the part of the recipient.

Originally, at the time of their inception the usage of writs were exceptional or rare, or at least non-routine devices. However it is suggested that by the time of King Henry II (1154-1189), the use of writs had become a regular part of the system of royal justice in England.

At the first instances, new writs were drafted to fit each new situation that arose with each case although in practice the clerks of the Chancery would use wording from previously issued writs, with suitable adjustments, often taken from reference books containing collections of forms of writ, much as in modern times lawyers frequently use fixed precedents or boilerplate, rather than re-inventing the wording of a new legal document. The problem with this approach was that a plaintiff's rights and available forms of action at his disposal, would be defined, and in most cases limited, by the limited variety of writs available to him. Thus the power to create new writs was akin to the power to create new rights, a form of extra-parliamentary legislation. Moreover, a writ, if one could be found fitting the plaintiff's case, provided the legal means to remove the dispute from the jurisdiction of the local court, often controlled by a lesser noble, and instead have it heard by the King's judges. The nobility thus saw the creation of new writs as an erosion of their influence.

Writs were first introduced in India in 1774 by a Royal Charter of Britain. During this period, The East India Company started to be subjected to parliamentary control. The Charter created a Supreme Court at Calcutta and conferred on it the right to issue all writs as were issued in England. Subsequently, Supreme Courts of Judicature were added in Madras in 1800 and Bombay in 1823 with similar provisions.

Later, the three supreme courts were replaced by High courts in the same places by the Indian High Courts Act of 1861, but the power to issue writs was confined only to those three high courts and that too within their jurisdictions only for writs of prohibition and certiorari. The other high courts in India created under the Act did not have any power to issue writs. Slowly, the authority to issue writs of Habeas Corpus and Mandamus was curtailed and taken away.This remained the scenario until 1950.

In 1950, the Constitution of India came into effect. The authority to issue writs of a certain nature was provided in the constitution to the Supreme Court under article 32 for the protection of Fundamental rights and to the High Courts under article 226 for the protection of fundamental rights as well as any other rights of any person.
Writs may be issued against any organ of the government or any statutory creation. On the Subject of who may file a writ petition, The Supreme court in the landmark case Satyanarayana Sinha v. Lal & Co. has given itself jurisdiction to determine whether any person or group has locus standi to file a petition

Writs under Article 32 of the Constitution of India
A declaration of fundamental rights is meaningless unless there are effective judicial remedies for their enforcement. Article 32 for the enforcement of the Fundamental Rights by means of the specified writ of writs of the same nature. The purpose is to ensure observance of rule of law and prevent abuse or misuse of power. They are designed to ensure that each and every authority in the State, including the government, acts bona fide and within the limits of its powers and that when a court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked, it is incumbent on the court to afford justice to the individual.The right to approach the Supreme Court for the enforcement of fundamental right under this Article is a fundamental right itself and can be invoked as against a private person.
In other words, this Article empowers the Supreme Court as a protector of fundamental rights and interference by the Supreme Court as the sentinel on the qui ive to protect substrantum of fundamental rights, that is, polity based on the rule of law and democracy which are necessary for fundamental rights which are enumerated in Part III of the Constitution.

Writs under Article 226 of the Constitution of India
From the point of view of the writ jurisdiction, the High Courts did not enjoy a co-equal status in the pre-constitutional era. No high Court except, the High Courts of Calcutta, Madras and Bombay, had any inherent power to issue the prerogative writs. The three High Courts enjoyed this power as inheritors of the jurisdiction of their predecessors. Now every High Court has power to issue various writs under Article 226 of the Indian Constitution of India.
The High courts have a parallel power under Article 226 to enforce the fundamental rights. Article 226 differs from Article 32 in that whereas Article 32 can be invoked only for the enforcement of Fundamental Rights, Article 226 can be invoked not only for the enforcement of Fundamental Rights but for any other purpose as well.This means that the Supreme Courts power under Article 32 is restricted as compared with the power of a High Court under Article 226, for, if an administrative action does not affect a Fundamental Right, then it can be challenged only in the High Court under Article 226, and not in the Supreme Court under Article 32. Another corollary to this difference is that a PIL (Public Interest Litigation) writ petition can be filed in Supreme Court under Article 32 only if a question concerning the enforcement of a fundamental right is involved. Under Article 226, a writ petition can be filed in a High court whether or not a Fundamental Right is involved.

The power to file writs against the state is a constitutional remedy and itself is a fundamental rights. A writ to the Supreme Court is filed under Article 32 of the Constitution of India where as a writ to the High Court is filed under Artcle 226 of the Constitution of India. The scope of filing a writ petition under Article 226 of the Constitution is much wider as compared to  a writ petition filed under Article 32 of the Constitution. Article 226 is not only available for infringement of fundamental rights but also as a legal remedy. Furthermore, it is not necessary that a writ petition can be filed not only against the State but also against a person.