Petitions under Article 32 and 226 of the Indian Constitution

Introduction:

B.R Ambedkar once said, “If I was asked to name any particular article in this Constitution as the most important — an article without which this Constitution would be a nullity — I could not refer to any other article except this one (Article 32). It is the very soul of the Constitution and the very heart of it.”[1]

Fundamental rights are enshrined in Part III of the Constitution and it includes Article 32 which provides for constitutional remedies. Thus, remedial measures for enforcement of fundamental rights are in itself a fundamental right.

Explanation of Article 32 and Article 226

Article 32 and Article 226 provide for enforcement of fundamental rights by way of issuance of writs. While both are similar in purpose, Article 32 is considered more important. Supreme Court is bestowed with the responsibility of safeguarding the constitution. It is the protector of fundamental rights and in this capacity, Article 32 allows individuals to move the Supreme Court to enforce their rights. Similarly, High Courts also are responsible for enforcing fundamental rights by way of issuance of writs.

Beginning with the Supreme Court, Article 32 is an article that provides for constitutional remedies.[2]

The Article reads:

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2), Parliament may by law empower 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).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

The first clause of Article 32 confers the right to any individual to move the Supreme Court for enforcement of fundamental rights. The second clause of Article 32 empowers the Supreme Court to issue writs which may be of the nature of habeas corpus, mandamus, certiorari, prohibition or quo warranto or any other whichever may be appropriate for the enforcement of the right. According to the third clause Parliament is empowered by law to empower courts of law to exercise similar power of issuance of writs for the purpose of enforcing fundamental rights within certain jurisdictions. The last clause of the Article 32 provides for non-suspension of the clause in any manner except for those prescribed by the Constitution.

Article 226 defines the power of the High Courts to issue writs for the enforcement of fundamental rights. It states that notwithstanding Article 32, the High Courts may issue writs for the enforcement of fundamental rights as listed in Part III of the constitution. Such power may be exercised by the High Court in its jurisdiction when the cause of action arises in its jurisdiction wholly or partly.

Having discussed what these two articles are, below are the various types of writs which may be issued by the Supreme Court or the High Court are explained.

Types of Writs

Habeas Corpus

According to Oxford Dictionary, the term ‘habeas corpus’ means “a writ requiring a person under arrest to be brought before a judge or into court, especially to secure the person’s release unless lawful grounds are shown for their detention.” The Latin term translates to ‘You shall have the body’. This writ is issued for the enforcement of the right to personal liberty which is listed under Art 21 of the Constitution which states that ‘no person shall be deprived of his life or liberty except by the procedure established by law.

A petition for writ of Habeas corpus is filed when an individual has been detained unlawfully. It is filed usually by the family of the individual who has been detained unlawfully if they have custody over the person who has been unlawfully detained.  It can also be filed by the aggrieved person himself or herself.  For the writ to be issued, the said detention has to be unlawful. A person who has been arrested due to some crime committed by him or her or under the provisions of preventive detention, cannot file a petition for issuance of this writ as the detention of the individual is not unlawful. It is filed when the detention is not based on any lawful grounds.

Writ of Certiorari

The Latin term Certiorari means ‘to be fully informed of’ and is used by the superior courts to lower courts to be intimated with the details of any case for the process of judicial review. At common law, it was used for keeping lower courts within the ambit of their jurisdiction. The courts can issue this writ when there is an error of law and not of facts. For instance, the laws applicable in a particular case may have been interpreted incorrectly which led to the incorrect legal conclusion, and hereby writ of certiorari may be issued so that the court is made aware of the proceedings of the case and can remedy the wrong done.

The Hari Vishnu Kamath v. Ahmed Ishaque case laid down certain limits on the jurisdiction of the High Court in relation to the issuance of writ of certiorari which are as follows:

• It will be issued when any tribunal or lower court has acted in excess of its jurisdiction or power.
• It will be issued for correction of jurisdiction errors.
• For any apparent error in the judgment or the determination of the case. The error has to be apparent.
• The courts issuing writ of certiorari will only review the interpretation of the laws and cases and not review the facts established in the proceedings of the case.

Writ of Mandamus

Writ of mandamus is a writ which is issued to order any lower court, tribunal, person, public authority, or government to do something or perform some statutory duty. The word ‘mandamus; translates to ‘command’ and therefore it is a command of a superior court to a lower court or to any other authority to do something. This writ is issued at the discretion of the court and is not a writ of right.

Writ of Prohibition

The writ is issued by the courts to order lower courts, tribunals, person, public authority, or government to stop doing anything or to abstain from doing any particular act or activity. It is issued in order to prohibit someone from doing any particular activity which might be in excess of their power or jurisdiction.

Writ of Quo Warranto

Meaning ‘by the authority’ or ‘by what means’ is a writ issued by the courts to remove someone from any public office that he or she may have usurped. For instance, this writ may be issued if the petitioner shows that the person occupying the office of the Chief Minister of any particular state has won the election by illegal means or has not won the elections at all and is thereby does not have any right to hold the office of the Chief Minister.

Writ of prohibition and certiorari are rather similar but the difference between them is that writ of prohibition is issued to stop someone or the courts from acting more than their power/jurisdiction, the writ of certiorari is issued to order the courts or someone to perform their duty.

Having read different types of writs that can be issued by the Courts, it would be worthwhile to read about the procedure for filing writ petitions under Article 32 and Article 226.

Format of Writ Petitions

Ingredients of Writ Petition under Articles 32 and 226 are similar. They consist of three parts and are as follows –

1. Title: This includes the name of the court, parties to the case, number, and year of the case along with a list of the articles under which the petition has been filed.  It is addressed to the Hon’ble Chief Justice of the High Court or the Supreme Court as the case may be.
2. Main Body: This consists of all the facts and details of the case. It is advised that paragraphs should be numbered. In case of any delay in filing the petition, the reason should be explained and stated in the main body itself. The main body of the petition also includes mention of any other remedy that the petitioner may have sought and which failed or was ineffective. The grounds which may include legal contentions should also be written and should be numbered. If any orders had been passed previously by any other court in the same case, the orders should be attached with the petition. While it is preferable in civil suits to avoid mentioning questions of law, it is not the same case in writ petitions where questions of law can be mentioned.
3. The third and the final part should include the prayer in which the writ is being sought.

After the writ petition has been filed and the notice has been served to the respondents/another party, it is required of the other party that they should file their objection to all the allegations that have been listed in the writ petitions. If any allegation is not denied or explained, it is understood to have been accepted by the other party. The respondents should also state all the facts and details on which they rely for countering or denying the allegations made in the petition. The respondents file a counter affidavit in which they are required to fill in all the above-mentioned details. If the respondents wish to add any new fact or detail after having filed the affidavit, they can do so in a rejoinder-affidavit after the permission of the court.

General Principles of Writ Petitions

1. Affidavit, counter-affidavit, and rejoinder affidavits include only material facts.
2. The writ petition may be against the government or simply against any public authority or any person occupying a government office without impleading the government also.
3. In cases where other statutory or legal remedies exist, it is advised to exhaust them first but in exceptional cases where the grounds for not seeking other remedies have been satisfactorily explained, the courts may grant a writ despite not having exhausted the other remedies. This is because this is rule is not one of law but rather of policy.
4. The writs should be written concisely.

Rules for Pleadings applicable to Writ Petitions

1. In writ petitions including rejoinder and counter-affidavits, one should only write the material facts relevant to the case.
2. Alternative remedies should first be exhausted and if this is not the case, then reasons or grounds for superseding those remedies should be provided for.
3. Rule 1 and 3 of Order I CPC about the joining of the parties are also applicable.

Conclusion

The constitutional remedies provided under Article 32 and Article 226 of the Indian Constitution are done by issuance of several rights after individuals seeking the issuance of directions or writs have exhausted other remedies. And petitions should be written in an orderly manner that is inclusive of all the details required. It also allows a chance for the respondents to explain their side of the facts and details as stated by the petitioner in the writ petition.

It is important that one is aware of the several rules and principles that guide the format of petitions and several other documents that one may be required to draft over time.

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References:

[1] Revathi Krishnan, what is Article 32 which Ambedkar said was ‘heart’ and ‘soul’ of Constitution, The Print, Nov 17 2020, https://theprint.in/theprint-essential/what-is-article-32-which-ambedkar-said-was-heart-and-soul-of-constitution/546050/

[2] Sadaf Modak, Explained: What have been the Supreme Court’s recent observations on Article 32?, The Indian Express, Nov 19 2020, https://indianexpress.com/article/explained/article-32-and-supreme-court-fundamental-rights-7055040/

Other Sources:

1. https://blog.ipleaders.in/article-32-constitution-india/
2. https://indiankanoon.org/doc/1712542/