Polity Notes 17

WRITS: The Constitutional Remedies

Under Article 32 and Article 226 of the Constitution of India, the Supreme Court and the High Courts respectively are empowered to issue certain writs for the enforcement of Fundamental Rights. These writs have their origin in English law where they were known as ‘prerogative writs’. They are an extraordinary remedy which guarantees the right to constitutional remedies. The Supreme Court’s power under Article 32 is itself a Fundamental Right, making it the “very soul of the Constitution and the very heart of it,” as described by Dr. B.R. Ambedkar in the Constituent Assembly Debates.

• MANDAMUS

  • The Latin term ‘Mandamus’ translates to “We command.” It is a judicial command issued by a higher court to a lower court, tribunal, or a public authority to perform a public or statutory duty which it has failed or refused to perform.
  • Conditions for issuance:
    1. The petitioner must have a legal right to the performance of a legal duty.
    2. The duty must be public in nature.
    3. The duty must be mandatory, not discretionary. The court cannot compel an authority to exercise its discretion in a particular manner, but it can compel it to exercise the discretion.
    4. There must have been a distinct demand for performance of the duty and a refusal thereof.
  • Restrictions on Issuance:
    • Against Private Individuals: It cannot be issued against a private individual or body, as its primary purpose is to compel public duties.
    • Against the President and Governors: Article 361 of the Constitution grants immunity to the President and State Governors from court proceedings for the exercise of their official powers.
    • Against Chief Justice in Judicial Capacity: To maintain the independence of the judiciary, a writ of mandamus cannot be issued against the Chief Justice of a High Court or the Chief Justice of India acting in their judicial capacity.
    • To enforce contractual obligations: Contractual obligations are private in nature and are governed by contract law, not public law. Redress must be sought in a civil court. For instance, in The Bihar Eastern Gangetic Fishermen Cooperative Society Ltd. v. Sipahi Singh (1977), the Supreme Court held that a writ of mandamus cannot be issued to enforce a non-statutory contractual obligation.

• PROHIBITION

  • The literal meaning is “To forbid.” This writ is issued by a higher court (Supreme Court or High Court) to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
  • Nature and Scope:
    • It is purely preventive and is issued during the pendency of proceedings. Once the proceedings have terminated and an order has been made, Prohibition is not available.
    • As established in the case of Hari Vishnu Kamath v. Syed Ahmad Ishaque (1955), the primary function of Prohibition is to confine inferior tribunals within the limits of their authority.
  • Target Bodies:
    • It is issued against judicial and quasi-judicial bodies. A quasi-judicial body is an authority or body which has powers and procedures resembling those of a court of law or judge, such as tribunals (e.g., National Green Tribunal, Central Administrative Tribunal).
    • Following the expansion of judicial review, its applicability to administrative bodies acting in a judicial manner has been debated, but its traditional scope remains focused on judicial entities. It cannot be issued against legislative bodies or private individuals.
  • Mandamus vs. Prohibition: While Mandamus commands activity (to do something), Prohibition commands inactivity (to refrain from doing something).

• CERTIORARI

  • The term ‘Certiorari’ means “To be certified” or “To be informed.” It is a curative writ issued by a higher court to a lower court or tribunal.
  • Purposes:
    1. To transfer a case pending with the lower court to itself.
    2. To quash an order already passed by a lower court.
  • Grounds for Issuance:
    1. Excess or Lack of Jurisdiction: When a subordinate court has acted without jurisdiction or in excess of its vested jurisdiction.
    2. Error of Law Apparent on the Face of the Record: A patent error which can be identified without a lengthy argument or examination of evidence.
    3. Violation of Principles of Natural Justice: Such as audi alteram partem (hear the other side) or the rule against bias.
  • Prohibition vs. Certiorari: Prohibition is available at an earlier stage (during pendency of proceedings), making it preventive. Certiorari is available at a later stage (after the order is passed), making it both preventive and curative.
  • Evolution of Scope: Initially, like Prohibition, Certiorari was available only against judicial and quasi-judicial bodies. However, the Supreme Court in A. K. Kraipak v. Union of India (1970), significantly diluted the distinction between quasi-judicial and administrative functions, holding that principles of natural justice apply to administrative actions that affect individual rights. This expanded the scope of Certiorari to include administrative authorities.

• QUO WARRANTO

  • The term ‘Quo Warranto’ literally means “By what authority or warrant.” The court issues this writ to inquire into the legality of a person’s claim to a public office.
  • Objective: To prevent a person from illegally usurping a public office to which he or she is not entitled.
  • Conditions for Issuance:
    1. The office must be a public office, created by the Constitution or a statute.
    2. The office must be of a substantive character, meaning it is not merely a temporary or servile position.
    3. The person holding the office must be in actual possession of it, and there must be a contravention of constitutional or statutory provisions in their appointment.
  • Unique Feature: Any interested person can seek this writ, not necessarily the aggrieved person.
  • Restrictions: It cannot be issued against a ministerial office (e.g., a council of ministers) or a private office.

ARTICLE 33: Power of Parliament to Modify Fundamental Rights for Certain Forces

• This article empowers the Parliament to restrict or abrogate the Fundamental Rights of the members of the armed forces, para-military forces, police forces, intelligence agencies, and analogous forces.
• Rationale: The objective is to ensure the proper discharge of their duties and the maintenance of discipline among them, which is paramount for national security and public order.
• Exclusive Parliamentary Power: This power is vested solely in the Parliament, and not in the state legislatures.
• Judicial Review: Any law enacted by Parliament under Article 33 cannot be challenged in any court on the ground that it violates any of the Fundamental Rights.
• Examples of such laws: The Army Act (1950), the Navy Act (1950), the Air Force Act (1950), the Police Forces (Restriction of Rights) Act (1966), etc. These acts impose restrictions on rights such as freedom of speech, forming associations, and attending political meetings.

ARTICLE 34: Restriction on Rights while Martial Law is in force

• This article provides for the restriction of Fundamental Rights while Martial Law is in force in any area within the territory of India.
• Concept of Martial Law: The term ‘Martial Law’ has not been defined in the Constitution. It is a concept borrowed from English common law and implies the suspension of ordinary law and the government of a country or part of it by military tribunals. It is imposed under extraordinary circumstances like war, invasion, insurrection, rebellion, riot, or any violent resistance to law.
• Indemnity Provision: It empowers Parliament to make a law to indemnify (secure against legal responsibility) any person in the service of the Union or a state for any act done by him in connection with the maintenance or restoration of order in any area where Martial Law was in force.
• Judicial Scrutiny: The Supreme Court, in A.D.M. Jabalpur v. Shivkant Shukla (1976), held that the imposition of Martial Law does not ipso facto result in the suspension of the writ of Habeas Corpus. The validity of any action taken under martial law can be scrutinised by the judiciary.

MARTIAL LAW vs. NATIONAL EMERGENCY

Feature	Martial Law (Implicit in Art. 34)	National Emergency (Art. 352)
Scope of Impact	Affects only Fundamental Rights.	Affects FRs, Centre-State relations, distribution of revenues, and tenure of the Lok Sabha.
Effect on Govt.	Suspends the ordinary government and law courts in the specified area.	The government and ordinary law courts continue to function.
Grounds	Imposed to restore order due to breakdown of law and order (e.g., rebellion, riot).	Can be imposed only on grounds of war, external aggression, or armed rebellion.
Area of Operation	Imposed in some specific area of the country.	Can be imposed in the whole country or any part of it.
Constitutional Basis	It is implicit in the Constitution and not explicitly defined.	It is explicitly mentioned in the Constitution with detailed provisions for its declaration and operation.

ARTICLE 35: Legislation to give effect to the provisions of this Part

• This article confers exclusive power on the Parliament to make laws on certain matters in Part III (Fundamental Rights), thereby ensuring uniformity throughout India.
• Provisions covered:
  1. Prescribing residence as a condition for certain employments or appointments in a state or union territory (Article 16(3)).
  2. Empowering courts other than the Supreme Court and the High Courts to issue directions, orders, and writs for the enforcement of Fundamental Rights (Article 32(3)).
  3. Restricting or abrogating the application of Fundamental Rights to members of armed forces, police forces, etc. (Article 33).
  4. Indemnifying any government servant or any other person for any act done during the operation of martial law in any area (Article 34).
  5. Prescribing punishment for acts declared to be offences under the Fundamental Rights, such as untouchability (Article 17) and trafficking in human beings and forced labour (Article 23).
• The power under Article 35 is only with the Parliament, not state legislatures, even if the matter falls under the State List.

ARTICLE 31 AND THE RIGHT TO PROPERTY

• Original Position: The right to property was a Fundamental Right guaranteed under two articles:
  • Article 19(1)(f): Guaranteed to every citizen the right to acquire, hold, and dispose of property.
  • Article 31: Guaranteed to every person (citizen or non-citizen) protection against arbitrary deprivation of property. It stated that no person shall be deprived of his property save by authority of law and that private property could be acquired for a public purpose only upon payment of compensation.
• Constitutional Conflict and Amendments: The right to property became the most contentious right, leading to a prolonged conflict between the Parliament and the Judiciary. Parliament sought to implement its socio-economic agenda (e.g., land reforms), which often required acquiring private property. The judiciary, in cases like State of Madras v. Champakam Dorairajan (1951) and Kameshwar Singh v. State of Bihar (1952), upheld the sanctity of property rights. This led to a series of constitutional amendments (1st, 4th, 17th, 25th, 42nd) to curtail the scope of this right.
• The 44th Amendment Act, 1978: This amendment, enacted by the Janata Party government, made a monumental change.
  • It repealed Article 19(1)(f) and Article 31 from Part III (Fundamental Rights).
  • It inserted a new article, Article 300A, in Part XII of the Constitution. Article 300A states, “No person shall be deprived of his property save by authority of law.”
• Current Status: The right to property is no longer a Fundamental Right but a constitutional/legal right.
• Distinction between Fundamental Rights and Ordinary Legal Rights:
  • Remedy: For violation of a Fundamental Right, an aggrieved person can directly approach the Supreme Court under Article 32. For a legal right like property, the remedy lies in approaching the High Court under Article 226 or a subordinate court.
  • Amendment: A Fundamental Right can be abridged or taken away only by a constitutional amendment. A legal right can be regulated or modified by an ordinary law passed by the Parliament.
  • Protection: Fundamental Rights are protected against both executive and legislative actions. The legal right to property under Article 300A protects against arbitrary executive action but not against legislative action (i.e., the state can deprive a person of property through a valid law).

DIRECTIVE PRINCIPLES OF STATE POLICY (DPSP)

• Source and Philosophy: Contained in Part IV (Articles 36-51) of the Constitution, the DPSPs are borrowed from the Irish Constitution of 1937. They are inspired by the “Instrument of Instructions” from the Government of India Act, 1935. DPSPs embody the concept of a ‘welfare state’ and aim to establish social and economic democracy. Granville Austin described the FRs and DPSPs together as the ‘Conscience of the Constitution’.
• Nature: According to Article 37, they are non-justiciable (not enforceable by any court). However, it declares that these principles are fundamental in the governance of the country and it shall be the duty of the State to apply these principles in making laws.
• Key Articles and their Applications:
  • Art. 36: Defines ‘State’ with the same meaning as in Article 12 (Part III).
  • Art. 37: States the non-justiciable but fundamental nature of DPSPs.
  • Art. 38: (Socialistic) Aims to promote the welfare of the people by securing a social order permeated by justice—social, economic, and political—and to minimize inequalities.
  • Art. 39: (Socialistic) Secures: (a) right to adequate means of livelihood for all citizens; (b) equitable distribution of material resources for the common good; (c) prevention of concentration of wealth; (d) equal pay for equal work; (e) protection of health of workers; (f) opportunities for healthy development of children.
  • Art. 39A: (Added by 42nd Amendment, 1976) To provide free legal aid to the poor. The Legal Services Authorities Act, 1987 (NALSA) was enacted to give effect to this.
  • Art. 40: (Gandhian) To organise village panchayats and endow them with powers of self-government. Realised through the 73rd Constitutional Amendment Act, 1992.
  • Art. 41: (Socialistic) To secure the right to work, education, and public assistance in cases of unemployment, old age, sickness, etc. (e.g., MGNREGA, National Social Assistance Programme).
  • Art. 42: To make provision for just and humane conditions of work and maternity relief (e.g., Maternity Benefit Act).
  • Art. 43: To secure a living wage, a decent standard of life for all workers.
  • Art. 43A: (Added by 42nd Amendment, 1976) To secure the participation of workers in the management of industries.
  • Art. 43B: (Added by 97th Amendment, 2011) To promote voluntary formation, autonomous functioning, and democratic control of co-operative societies.
  • Art. 44: (Liberal-Intellectual) To secure for all citizens a Uniform Civil Code (UCC) throughout the territory of India.
  • Art. 45: (Amended by 86th Amendment, 2002) To provide early childhood care and education for all children until they complete the age of six years.
  • Art. 46: (Gandhian) Promotion of educational and economic interests of SCs, STs, and other weaker sections.
  • Art. 47: (Gandhian) Duty of the State to raise the level of nutrition, standard of living and to improve public health, and to prohibit consumption of intoxicating drinks and drugs.
  • Art. 48: (Gandhian) To organise agriculture and animal husbandry on modern lines and to prohibit the slaughter of cows, calves, and other milch and draught cattle.
  • Art. 48A: (Added by 42nd Amendment, 1976) To protect and improve the environment and to safeguard forests and wildlife (e.g., Wildlife Protection Act, 1972; Forest Conservation Act, 1980).
  • Art. 49: (Liberal-Intellectual) To protect monuments, places and objects of artistic or historic interest which are declared to be of national importance.
  • Art. 50: (Liberal-Intellectual) To separate the judiciary from the executive in the public services of the State. This was largely achieved by the enactment of the Code of Criminal Procedure, 1973.
  • Art. 51: (Liberal-Intellectual) To promote international peace and security, maintain just relations between nations, foster respect for international law, and encourage settlement of international disputes by arbitration. Forms the basis of India’s foreign policy.

UNIFORM CIVIL CODE (UCC)

• Historical Context: Prior to British rule, personal matters were governed by respective religious scriptures like the Shastras for Hindus and the Sharia for Muslims. The British, through the Lex Loci Report of 1840, codified criminal and contract law but deliberately left personal laws of Hindus and Muslims untouched to avoid social unrest. This policy of non-interference continued after the Revolt of 1857.
• Constituent Assembly Debates: The inclusion of a UCC was a matter of intense debate. Proponents like K.M. Munshi and Dr. B.R. Ambedkar argued for it as a means of promoting national unity and gender justice. Opponents, primarily Muslim representatives, viewed it as a threat to their religious freedom and cultural identity. As a compromise, it was placed in the non-enforceable DPSP chapter (Article 44).
• Post-Independence Developments: While Parliament enacted the Hindu Code Bills in 1955-56, codifying and reforming Hindu personal law, similar reforms were not extended to other communities.
• Judicial Push: The Supreme Court has repeatedly, in cases like Mohd. Ahmed Khan v. Shah Bano Begum (1985) and Sarla Mudgal v. Union of India (1995), highlighted the state’s failure to implement Article 44 and urged the government to take steps towards a UCC.
• Challenges to Implementation:
  • Political Populism: Fear of losing minority vote banks prevents political parties from taking a firm stand.
  • Perceived Threat to Minority Identity: Religious minorities view UCC as an imposition of majoritarian culture and an infringement on their right to freedom of religion (Article 25).
  • Lack of Consensus: There is significant diversity not just between religions but also within them (e.g., different schools of Hindu and Islamic law, customary laws of tribal communities).
  • Patriarchal Opposition: Many personal laws are deeply patriarchal, and any reform towards gender equality, which is a key goal of UCC, faces resistance from conservative sections across communities.

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Prelims Pointers

• Mandamus means ‘We command’. It cannot be issued against a private individual, the President, or Governors.
• Prohibition means ‘To forbid’. It is issued against judicial and quasi-judicial bodies to prevent them from exceeding jurisdiction.
• Certiorari means ‘To be certified’. It is issued to quash an order or transfer a case from a lower court. It is both preventive and curative.
• Quo Warranto means ‘By what authority’. It is issued to inquire into the legality of a person’s claim to a substantive public office.
• The power to issue writs for enforcing FRs is under Article 32 for the Supreme Court and Article 226 for High Courts.
• Article 33 empowers Parliament (not state legislatures) to restrict FRs of members of armed forces, police forces, etc.
• Article 34 deals with the restriction of FRs during the operation of Martial Law.
• The concept of Martial Law is borrowed from the English common law system.
• Article 35 gives exclusive power to Parliament to make laws for prescribing punishment for offences like untouchability and forced labour.
• The Right to Property was removed from Part III (Fundamental Rights) by the 44th Constitutional Amendment Act, 1978.
• The Right to Property is now a constitutional/legal right under Article 300A in Part XII of the Constitution.
• Directive Principles of State Policy (DPSP) are in Part IV of the Constitution, from Articles 36 to 51.
• The idea of DPSP was borrowed from the Irish Constitution of 1937.
• DPSPs are non-justiciable in nature (Article 37).

1. Key Amendments related to DPSP:
   • 42nd Amendment (1976): Added Articles 39A, 43A, 48A.
   • 44th Amendment (1978): Added a clause in Article 38 to minimize inequalities in income.
   • 86th Amendment (2002): Changed the subject-matter of Article 45.
   • 97th Amendment (2011): Added Article 43B for co-operative societies.

• Article 40: Organisation of village panchayats (Gandhian Principle).
• Article 44: Uniform Civil Code (Liberal-Intellectual Principle).
• Article 50: Separation of judiciary from the executive.
• Article 51: Promotion of international peace and security.

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Mains Insights

• Judicial Activism and the Expanding Scope of Writs:

  • The judiciary, through liberal interpretation, has expanded the scope of writs, particularly Certiorari and Mandamus, to bring administrative actions under judicial review. This shift, prominent since the A. K. Kraipak (1970) case, strengthens the rule of law by ensuring that even non-judicial bodies act fairly and within their legal limits. This reflects the judiciary’s role as the ultimate guardian of citizens’ rights against arbitrary state action.

• National Security vs. Individual Rights (Art. 33 & 34):

  • Articles 33 and 34 represent a constitutional compromise between the need for national security/discipline and the fundamental rights of individuals.
  • Cause-Effect: The nature of duties performed by armed forces and police necessitates a higher degree of discipline, justifying restrictions on their FRs (Art. 33). Similarly, the breakdown of civil administration during martial law necessitates extraordinary measures (Art. 34).
  • Debate: The key debate revolves around the extent of these restrictions. Critics argue that they can lead to a sense of alienation and human rights violations (e.g., AFSPA, enacted using these principles). The challenge is to ensure that these restrictions are proportional and subject to oversight, preventing their misuse while safeguarding national interests.

• The Saga of Right to Property: FRs vs. DPSPs:

  • The evolution of the Right to Property is the classic story of the conflict between Fundamental Rights (representing individual liberty) and Directive Principles (representing socialist, egalitarian goals).
  • Historiographical Viewpoint:
    • Pro-Parliament View: Parliament’s actions (amendments) were necessary to usher in land reforms and reduce inequality, which were key promises of the freedom struggle. The judiciary’s initial rigid stance was seen as an obstacle to social justice.
    • Pro-Judiciary View: The judiciary was upholding the constitutional guarantee of property rights against legislative overreach. This tussle ultimately led to the formulation of the ‘Basic Structure Doctrine’ in the Kesavananda Bharati case (1973), which established a balance by granting Parliament the power to amend the constitution but not to destroy its basic framework.
  • Conclusion: The eventual removal of property as an FR by the 44th Amendment settled the debate, prioritizing the state’s social objectives over individual property rights, while still retaining it as a legal right to prevent arbitrary executive action.

• DPSPs: The Conscience of the Constitution or Pious Aspirations?

  • Complementarity with FRs: The Supreme Court in the Minerva Mills case (1980) held that the Indian Constitution is founded on the bedrock of the balance between Part III (FRs) and Part IV (DPSPs). They are two wheels of the same chariot, and one cannot be given primacy over the other. They are complementary. A law enacted to implement a DPSP can be considered a ‘reasonable restriction’ on an FR.
  • Utility of Non-Justiciable Rights: Though non-justiciable, DPSPs are not mere ‘pious aspirations’.
    1. They serve as guiding principles for all three organs of the state: legislature, executive, and judiciary.
    2. They provide a yardstick for the public to measure the performance of the government.
    3. Courts use them to determine the constitutional validity of a law.
    4. They amplify the vision of the Preamble, aiming for a ‘welfare state’ with justice, liberty, equality, and fraternity.

• Uniform Civil Code (UCC): A Triangle of Tensions:

  • The debate on UCC involves a complex interplay between three constitutional values:
    1. Secularism and National Integration (Art. 44): Proponents argue that a common civil law for all citizens, irrespective of religion, is a hallmark of a modern, secular nation and will foster national unity.
    2. Right to Freedom of Religion (Art. 25): Opponents argue that personal laws are an integral part of their religion and culture, and a UCC would infringe upon their right to profess and practice their religion.
    3. Gender Justice and Equality (Art. 14 & 15): A primary argument for UCC is that most personal laws are discriminatory against women in matters of marriage, divorce, inheritance, and adoption. A UCC is seen as a tool to achieve gender equality.
  • Way Forward: The Law Commission of India has often suggested a path of gradual reform within each personal law to eliminate discriminatory practices, rather than a top-down imposition of a single code, as a more pragmatic approach to reconcile these conflicting values.

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