INTRODUCTION

Part III of the Constitution of India guarantees certain fundamental rights to all of its citizens, these rights include the right to freedom (as illustrated by article 19 ), the right to equality (as can be seen by articles 14 and 15 ), right against exploitation (as enumerated in articles 23 and 24 ), etc. These rights play a major role in helping preserve and promote the rights of the individuals, as well as promoting equality. But simply declaring these rights would not be able to ensure that they continue to exist through the trials and tribulations of political life, the makers of the Constitution realized that if these rights were to be truly made available to the people, it was crucial that it made these rights enforceable by the judiciary in order to prevent the laws from remaining mere paper laws. It is with this realization that a right without a remedy is nothing more than a meaningless formality that the right to constitutional remedies was brought about in India.
This right to constitutional remedy is talked about in article 32 of the Constitution, meaning it is a fundamental right in itself, making it a provision that is unique to the Constitution of India. Under this article, if a person believes that they have been deprived of any of their fundamental rights, they have the right to approach the supreme court in order to get the required legal remedies and get their rights enforced. Further, it gives the Supreme Court, or any other court empowered by parliament, the power to enforce these fundamental rights of the people through relevant instruments such as the issuance of writs. The right to Constitutional Remedies is something that has been described in Ram Singh V. State of Delhi as a privilege and duty of the court in order to ensure that the “rights intended to be fundamental are kept fundamental”, similar sentiments were echoed by the court in State Of Madras vs V.G. Row. It was also stated in Romesh Thappar V State of Madras that the protection of the liberties of the people lies at the very center of preserving a democratic way of life. The only exception to the right to constitutional remedies that exists is- in a situation where the President declares a national emergency under Article 352 of the Constitution then this right gets suspended for the people, this means that even if someone believes that their fundamental rights have been infringed, they will be unable to approach the Supreme Court to enforce the same.
Even though this exception has been widely criticized, the makers of the Constitution believed that it is a necessary evil because the interests of the individual cannot be allowed to interfere with, or harm, the interests of the state at large, and in pursuance of the same the right to constitutional remedy can be curtailed in such exceptional circumstances.
Article 32 can also be used by the courts to award adequate compensation, the court reasoned that by providing monetary compensation, any similar acts will be deterred in the future. The court used Article 32 to provide compensation in cases such as Rudul Shah V. Union of India and Bhim Singh V. State of Jammu and Kashmir and reiterated that if they are not allowed to do so under Article 32 then it would render the article useless in M.C Mehta.

WRITS

As we have already discussed, in order to be able to enforce the fundamental rights of the people, the courts have been armed with certain instruments. The most important one of them being the power to issue writs.
A writ refers to a written order by a court with relevant jurisdiction which the court uses to command a particular body to perform a specified act or abstain from performing an act. As we have already seen, the Supreme Court retains the right to issue writs under Article 32, but this power is not exclusive to the apex court. The High Courts of appropriate jurisdiction also have the power to issue writs as provided by Article 226 of the Indian Constitution, and this power is not to be conferred to the High Courts in derogation of Article 32.
With regards to the jurisdiction of the High Court to use Article 226 to issue writs, it had initially been laid down in the Khajoor Singh case as well as the Saka Venkata Rao case that the authority or government against whom the writ is to be issued need to be located within the territorial jurisdiction of the High Court. This position was altered by the 11th Amendment of 1961 which stated that any high court within whose jurisdiction the cause of action arose would be allowed to issue writs.
The power to issue writs is wider for the High Courts than it is for the Supreme Court, this can be seen from the fact that while the Supreme Court can only use its writ jurisdiction to enforce the fundamental rights of the people, the High Courts have been given the power to issue writs to uphold not only fundamental rights but other Constitutional as well as legal rights. An instance of the High Courts using their writ jurisdiction to enforce constitutional rights can be seen in the case of Narayan Prasad V. State of Chhattisgarh when two brothers were denied No Objection Certificates for the transfer of their property by the special tribunal. They approached the High Court to enforce their right as provided by Article 300-A of the Constitution, and this was upheld by the court who stated that they ought to be granted the same since it is a constitutional right that has been granted to them.

The writs are classified into five types; these are discussed below:

1. The Writ of Habeas Corpus: The literal translation of the writ is “to have the body”. This is used by the court to set free someone who, in the eyes of the court, has been wrongfully detained. It was held in Narayan V. Ishwarlal, that the question of whether the writ is civil or criminal would depend upon the procedures in which the detention was executed.

An important feature of the writ is that in the case of habeas corpus, the doctrine of locus standi has been relaxed. This doctrine states that only that person who has a direct connection to the case at hand shall be permitted to approach the court for relief. In the case of this writ, this doctrine was eased by the court in the case of Sheela Barse V. State of Maharashtra, this was done in court because if there is a situation where a detained person is unable to plead, any other party such as their family should be allowed to file a writ petition on their behalf.

In addition to this, even if someone who has been detained writes a letter to a judge, it can be used as sufficient grounds to file the writ, this was held in Sunil Batra V. Delhi Administration. Finally, the courts also have the power to take suo moto cognizance and file a writ themselves. While dealing with a habeas corpus petition, the courts may also look into the legality of the detention without having the person so detained, produced before them. This was seen in the case of Kanu Sanyal V. District Magistrate.

Once the writ is issued by the court, the person who has been wrongfully detained is produced before the court, and if the court finds that the detention was not justified then it orders their release. They can deem the detention to be illegal on grounds of due procedure established by law not being followed, or that the detention was not made in accordance with the law. In certain cases, the courts may even go so far as to award exemplary damages, such as was seen in the case of Bhim Singh.

This writ can, however, not be invoked in cases such as where the detention is a result of a judicial proceeding, the person has been put into restraint under a constitutionally valid law, or if it is deemed that the court does not have the appropriate territorial jurisdiction.

2. The Writ of Mandamus: Mandamus literally means, ‘we order’, this writ is a form of command by the courts to other bodies, which could be constitutional, statutory, or non-statutory, or by a higher court to a lower court, to perform a specific act, or stop them from performing a certain act which falls outside the scope of their powers, these acts need to be mandatory in nature and not discretionary.

It is important to remember that this writ cannot be filed against a private party who does not have a legal duty to perform the function, it can also not be used against the President, as held in the S.P Gupta case, or governors, as said in C.G Govindan V State of Gujrat. It can also not be brought against inferior officers who are bound by the directions provided by their seniors. It can however be filed against a private person if it can be shown that they acted in collusion with a public authority, this was laid down in the cases of The Praga Tools Corporation v. C.V. Imanual, and Sohanlal v. Union of India. The court has also stated that the rule of locus standi is to be followed while issuing this writ.

Courts can issue the writ in a situation where there exists some legal right of the petitioner that has been infringed due to the non-performance of a duty that a party, be it a public authority or a private party, was legally bound to perform but has not done so.

Some cases where this writ was used by the court include the case of Rashid Ahmad V. Municipal Board where the court held that even if an adequate alternative remedy is available, it cannot serve as a bar towards issuing the writ even if it might be taken into consideration by the court. Even in PUCL V. Union of India, the courts issued a continuing mandamus, which means that the state was required to appear before the court at regular intervals and show that they were taking necessary steps to provide the right to food under Article 21 of the constitution. Here the continuing mandamus was used by the court to continuously monitor the state for many years after the initial suit was brought in 2001.

3. The Writ of Certiorari: Certiorari means ‘to certify’. This writ is used by higher courts as a form of a command to a lower court or some lower quasi-judicial body to send the records of a proceeding that is pending before it to the higher court. This is usually done when it is believed that the lower court does not have the necessary jurisdiction as was seen in Rafiq Khan V. State of U.P where the Allahabad HC quashed an order by the sub-divisional magistrate who had modified the order by the Panchayati Adalat to convict the accused under the relevant sections of the IPC on the grounds that the magistrate lacked the required jurisdiction to be able to modify orders.

It is also used if the lower court violates the principle of natural justice while giving its judgment, or if there is an error of law made by the lower court that is apparent on the face of it, i.e., they have clearly disregarded certain statutory provisions, this was seen in the case T.C Basappa V. T. Nagappa. The writ cannot be issued if the decision by the lower court is made due to an error in facts, and it can only be filed against a lower court and not against a higher court or a court of equal standing, this was clarified in Surya Dev Rai V. Ram Chander Rai.

It is important to remember that the higher court only has an advisory jurisdiction while issuing this writ, and it cannot be used in the form of appellate jurisdiction. It also follows the doctrine of locus standi to a very stringent degree.

4. The Writ of Prohibition: This is also known as a stay order, under this writ used by a higher court to forbid a lower court from continuing proceedings or acting beyond their scope of powers. The main aim behind the writ is to prevent courts from acting outside their scope of jurisdiction, as was seen in East India Company Ltd. V. The Collector of Customs as well as the Bengal Immunity Co. Ltd case, and it is available while the proceedings are pending and before an order has been made.

4. The Writ of Quo Warranto: This writ is used to look into the legality of a claim made by a person or an authority to act in some public office, it seeks to check whether they are entitled to the position or not by examining the actions of the appointing authority. The basic idea behind having this writ is to prevent someone from holding a public office that they are not entitled to in order to prevent harm from coming to the public. This writ can be issued by anyone, the conditions for issuing the writ are that the office cannot be private and must be a public one (this was stated in Jamalpur Arya Samaj V. Dr. D. Ram ) which was created either by a Statute or by the Constitution. Further, it must be a permanent office and the writ has to be issued against a person who is currently holding the office or is someone who was disqualified from the office but refuses to vacate. This writ falls completely on the discretion of the courts.

CONSTITUTIONAL REMEDIES THROUGH PUBLIC INTEREST LITIGATION

A PIL refers to litigation that is undertaken in order to address grievances of the public and can be filed by anyone. A PIL is filed under Article 32 in the Supreme Court, Article 226 in the High Court, and Section 133 of the Code of Criminal Procedures in a magistrate. The courts can also initiate the process on the reception of a report, email, letter, etc. The PIL can be treated in the same way as a writ petition and once the court is satisfied that the letter is from the aggrieved party, it can initiate proceedings. It is a critical part of the Constitutional Remedies since it helps promote equality as well as protection of personal liberties of the people who might be unable to stand up for themselves. Furthermore, due to its inexpensive nature, it can be made available to more people and helps the courts in upholding the rights of the minorities and raising public awareness.
While the intention behind introducing PIL’s was to help make justice more accessible to all sections of society, it has also drawn criticism. Some of the criticism leveled towards PIL’s include the fact that the courts have misused PIL’s to overstep their bounds and breach the separation of powers by making policies on subjects such as pollution and sexual harassment. Further, due to the sheer volume of PIL’s that get filed due to their inexpensive nature, not only does it lead to an increase in the burden of the courts, oftentimes they spend time on frivolous PIL’s while ignoring more pressing concerns.
When it was seen that there was rampant abuse of PIL’s taking place, guidelines were laid down with regards to PIL’s in the State of Uttaranchal V. Balwant Singh where the court stated that any person who files a frivolous PIL ought to be fined up to Rs. 1 Lakh. It further said that the courts must verify the credentials of the petitioner before they take up a PIL, and they must ensure that the PIL contains a substantial question of interest to the public at large.

CONSTITUTIONAL REMEDIES AND RES JUDICATA

Res Judicata roughly translates into a matter that has been decided. The doctrine states that if a matter has already been decided by a court of competent jurisdiction, it is binding on the parties unless overturned via appeal or revision. The question thus arises, will an application under Article 32 be maintainable if a similar petition has been rejected by the High Court under Article 226. The rule is not only a mere technicality, it finds its roots in the promotion of public policy.
The court held in Daryao V. State of Uttar Pradesh that the doctrine of res judicata would remain a bar on the maintainability of a petition under Article 32 before the Supreme Court if the same has been decided by the High Court under Article 226. Further, it is important to note that in a situation where a writ petition is pending before a High Court, it cannot be filed before the Supreme Court, this was laid down in PN Kumar V. Municipal Corporation of Delhi, if such a situation were to arise then the party must only be allowed to move to the Supreme Court on appeal.

CONCLUSION

Articles 32 and 226 have played a monumental role in giving the courts the power to make justice more accessible to all sections of society. Through the regular judicial review, they have made the Constitution into a dynamic document that is better adjusted to modern times. Providing constitutional remedies to the people through the medium of PIL’s has vastly helped the disadvantaged raise their voice against the wrongs committed against them.
It is for these reasons that Article 32 has been deemed to be a cornerstone of our democracy by former CJI BP Gajendragadkar, M V Pylee noted that the first three sections of Article 32 help make the fundamental rights real, and this, in turn, makes them the “crowning part of the entire chapter”.
While these articles do equip the judiciary with great powers to be able to aid the public, it is critical that regular checks be maintained on the usage of this power by the courts, it has to be seen that the Judiciary work with a level of restraint and do not overstep their bounds. After all, with great power comes great responsibilities.

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INTRODUCTION

A writ petition is an order issued by a higher court to a lower court as a direction to perform a specified act or restrict them from doing an act. It is a specified direction against an order of the subordinate court. Other than this, a writ is issued when any fundamental rights of an individual are violated or infringed upon as a remedial measure, to reinforce the aforementioned rights. The Indian Constitution has granted the power to issue writes to the High Courts and Supreme Court under Articles 226 and 32 respectively. Based on the above purpose for which a writ may be issued, a question may arise – How can the court entertain a writ petition in a contractual matter where the rights of the parties essentially arise out of contract and are not fundamental rights?

FACTORS AND PRINCIPLES GOVERNING MAINTAINABILITY OF WRIT PETITION IN STATE CONTRACTUAL MATTERS

The principles governing the maintainability of writ applications in Government contracts have substantially developed over decades. The courts seem to have, with time, shifted from the idea of not allowing writ applications in contractual matters of state to identifying situations where it becomes expedient in the interests of justice to allow the petitioners to claim via writ petition. The Hon’ble Supreme Court, in the case of Smt. Gunwant Kaur and Ors. v. Municipal Committee, Bhatinda and Ors. , identified certain legal principles as to the maintainability of a writ petition – a. writ petition against a state or its instrumentality arising out of a contractual obligation are maintainable in appropriate cases only;
b. a mere dispute over questions of facts cannot be a ground of refusal to entertain a writ petition in all cases as a general rule;
c. writ petition involving a consequential relief of monetary claim is also maintainable. The court further observed that the power to issue writs is plenary in nature and not limited by any other constitutional provision. However, entertaining a writ petition is at the discretion of the court. Thus, it is clear that there’s no absolute bar in entertaining writ petitions on the state’s contractual obligations. The courts have time and again illustrated various circumstances where writ petitions against the state’s contractual obligations are maintainable.

Any Government contract has, broadly speaking, 4 stages. The first stage involves calling for tenders by publishing a notice inviting tenders. The authorities are, at this stage, focusing on the formulation of terms and conditions for inviting tenders as well as contractual terms, which would govern the contracting parties. The Supreme Court has categorically observed that courts can interfere with the conditions incorporated in a tender if they are in themselves arbitrary, discriminatory, mala fide, or biased (See Directorate of Education and Ors. v. Educomp Datamatics and Ors. ). The second stage is where the decisions regarding allotment or rejection of tender or cancellation of the entire process are taken. It is this stage where the court can question the decision making process for allotment through its power of judicial review where an element of public interest is involved. It is to be noted that the decision to award the contract cannot be adjudicated upon by court under judicial review; however, the decision-making process comes within the purview of judicial review. The aforesaid opinion has been observed in the cases of TATA Cellular v. Union of India and Raunaq International Ltd. v. IVR Construction Ltd. and Ors. The next stage involves the performance of the contract. Any breach during this stage would be governed by the terms of the contract; the mere fact that the state or its instrumentality is a contracting party doesn’t make a writ petition maintainable. The final stage is when the contractor is claiming his due after the contract has been performed. This stage may be classified into two:
a. Where the amount claimed is not disputed;
b. Where the amount claimed is disputed.

The Supreme Court had, in the case of Radhakrishan Agarwal v. the State of Bihar, enumerated three illustrative categories of cases where a writ petition may be allowed in state contractual matters:
“(i) where a petitioner makes a grievance of breach of promise, on the part of the State, on the ground that on the assurance or promise made by the State, he has acted to his prejudice and predicament, but the agreement is short of a contract within the meaning of Article 299 of the Constitution; (ii) where the contract, entered into between the person aggrieved and the State, is in the exercise of a statutory power under some Act or Rules framed thereunder and the petitioner, in the case of such a statutory contract, alleges a breach of obligation on the part of the State; and (iii) where the contract, entered into between the State and the person aggrieved, is not statutory, but purely contractual and the rights and liabilities of the parties are governed by the terms of the contract and the petitioner complains about the breach of such a contract by the State.”

In the context of the first category, it has been opined that such a case would attract Article 226 for enforcement of the doctrine of estoppel because the state or its instrumentalities are no less bound than private individuals in carrying out the obligations signed up for by them. This is because the party seeking to bind the state has altered its position to its own detriment or disadvantage, relying on the representations made by the state or its instrumentalities. With reference to the second category, it has been observed that the rights and obligations arising out of statutory contracts would essentially be statutory in nature; thus, the aggrieved party can seek the remedy of a writ for enforcement of such contractual obligations (of statutory nature). The contracts under the third category relate to cases of breach of pure and simple contracts; any writ u/a 226 cannot be issued in cases of mere demand for recovery of money because it is a private right, whilst writs are meant to protect public rights. Thus, no remedy under article 226 shall be available ordinarily unless any element of public interest or breach of public right is shown.

In cases where the claim made is undisputed, without any counter-claims or cross-claims, the maintainability of a writ petition is contingent upon the availability of an alternative efficacious remedy; however, this doesn’t mean that where an alternative remedy exists, a writ application is barred. Maintainability essentially remains a subject matter of exercise of discretion of the courts. It has been reiterated time and again that for invoking the writ jurisdiction under article 226, two vital conditions that need to be satisfied, namely are: a. the identity of the person, against whom the writ is sought, as a person or body, which is amenable to writ jurisdiction, and (ii) the nature of duty, which is sought to be enforced, is a public duty or has an element of public interest. Out of the above two, the second prerequisite can under no circumstances be ignored. However, in situations where the state or instrumentalities are not clearing the dues of the contractor mala fide, with ulterior motives or arbitrarily; or when the state discriminates while making the payment of the dues of contractors – such decisions or acts of the state of not paying cannot be wholly made out of the scope of article 226 because in such cases what the petitioner is essentially asking the writ court is to order the state to act in accordance with its constitutional obligations by adhering to the letter and spirit of Article 14 and 21. This opinion has been voiced by the court in Abdul Kasem Ali Ahmed vs. State of Assam and Ors. in the interests of justice. As a caution, it has to be noted that not every state action in its contractual matters can be subjected to a writ petition. It was further observed in Kumari Shrilekha Vidyarthi and Ors. v. State of UP and Ors that in case the state is unable to present before the court evidence for justifying its action as fair, just and reasonable, the burden of proving arbitrariness on the shoulders of the petitioner will be held to have been discharged; and, the scope for the court to question the state over its unreasonableness, howsoever limited in contractual matters, must remain open to ensure that the state doesn’t act arbitrarily and unreasonably. Therefore, it has now been settled that in a case where an instrumentality of the State acts unfairly, unreasonably, unjustly and contrary to the public interest and public good, in its contractual, constitutional or statutory obligations, it acts, in reality, contrary to the constitutional fundamental rights guaranteed under article 14 of the Constitution of India. (See, ABL International Ltd. v. Export Credit Guarantee Ltd ). For deciding over the maintainability of the writ petition, the court also has to ensure that only those petitions are allowed that raise a constitutional or legal issue in addition to mere demand for enforcement of contractual rights. ( See, Life Insurance Corporation of India v. Asha Goel )

Another factor that needs to be considered while determining the question over maintainability of the writ application is that whether non-interference by the writ court would force the petitioner to be driven into long-drawn civil litigation, causing him serious prejudice and injustice. In such cases, if the court considers it just and reasonable, interference by allowing the writ petition becomes not only desirable but also necessary. This factor was brought to light by the Supreme Court in Asha Goel (supra). In situations where the state or its instrumentality cancels the work order, it is necessary for the court to look into the reason constituting the basis of such cancellation, meaning thereby, whether the cancellation is based on breach of any terms of the contract or is de hors the said contract. Justice dictates that the writ petition should be allowed in the latter case only as the former is a purely contractual dispute. Moreover, it can be said that where an agreement executed in accordance with Article 299 of the Constitution is canceled on a ground which is not referable to any of the terms of the contract and is per se violative of Article 14 of the Constitution, this Court can exercise the jurisdiction under Article 226 of the Constitution. This has also been opined by the Hon’ble Gujrat High Court in Aakash Exploration Services Limited vs. Oil and Natural Gas Corporation Limited.
Therefore, it has now become evident that writ petitions in contractual matters of state or its instrumentality are maintainable depending on the circumstances in that case and if in such a case it is just, reasonable, fair, necessary, and desirable that the court interfere in the case and prevent the state from acting unjustly, unreasonably, arbitrarily and unconstitutionally.

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Introduction

A writ is a formal document that orders a person to perform or cease to act. Usually, a Higher Court issues the writ; to the subordinate court directing them to carry an act or restrict from doing an act. In Indian legal history, writ petitions have proved to remove many inequalities that arise due to the government’s certain actions.

Everyone is equal before the law and there should be no discrimination. The Indian Constitution allows the aggrieved party to file a writ petition under Article 226 and Article 32. Article 226 allows to invoke writ petition in High Court; and Article 32 allows to invoke writ petition in Supreme Court. A writ would be a remedy; if there is a violation of the Fundamental Rights.

The main aim of the writ petition is to protect the fundamental rights and legal rights; of the citizens of the country. Even though the Constitution does not define writs explicitly; it is considered as the basic structure. Therefore, it non-amendable.

The five types of writs under Indian Constitution:

• Habeas corpus – Release of a person who is unlawfully detained. (You may have the body)
• Mandamus – Duties of the public authority. (We command)
• Prohibition – Prohibits a subordinate court from proceeding with a particular case when there is no jurisdiction. (Prohibition of proceedings)
• Certiorari – To quash an order of subordinate court/tribunal/any other quasi-judicial authority. (To be certified).
• Quo Warranto – Restraining a person to hold public office which he is not authorized to hold. (Question of authority).

Habeas corpus

The term “Habeas corpus” means you may have the body. It is a type of a writ under Indian Constitution. This writ directs the court to produce the person (unlawfully detained). The main aim of this writ is to secure the liberty of such person. The court orders directions to the person who has unlawfully detained another person. It is the duty of the person or authority or the detainee to produce the detenu before the court as per the orders.

Concept of Habeas corpus

The court will check the validity, justification, and jurisdiction of the person or authority to detain such other person. The writ of habeas corpus protects the rights of such person. Habeas corpus cannot be applied in cases where the custody of the person has been ordered by a competent court. A person who is arrested should be produced; before the magistrate within 24 hours of his arrest.
If a person is detained unlawfully; then relatives or friends or any other person on behalf of the detenu can apply for a writ of Habeas corpus under Article 226 (High Court) or under Article 32 (Supreme Court).

The writ can be issued against public or private authorities. The detained person is set free if; there is no legal justification for the confinement. The detenue himself can file the application of a writ of Habeas Corpus. A letter written by a convict; about the inhumane torture faced is also treated as a petition of habeas corpus. This writ can free a person from inhumane treatment also, does not limit only to unlawful detention.

Courts can also take suo moto action on receiving any information regarding unlawful detention. The speedy remedy is the base for habeas corpus writ. This writ is very helpful in protecting the personal liberty of the individual. Illegal detention contravenes the rights conferred under Article 21.

In these circumstances the writ of Habeas corpus cannot be issued:

• The detention in question is lawful.
• Detention is ordered by a competent court.
• The detention is outside the jurisdiction of the court.
• When the proceedings are related to contempt of court or record of parliament.

Mandamus

Writ of Prohibition

The writ of prohibition is issued; when an authority has wrongly exercised jurisdiction or has exceeded the jurisdiction. The authority in consideration can be either judicial or quasi-judicial. This writ is issued by a superior court to its subordinated court; to stop proceeding with the case where there is no jurisdiction. It can be issued under Article 32 or Article 226 of the Indian Constitution.

This writ prevents the inferior court from proceeding with a case; where they have no jurisdiction or where they have exceeded their jurisdiction. The primary objective is to supervise the inferior courts and confine them with their limits of jurisdiction.
Under which circumstances writ of prohibition is issued:

• An act is done without jurisdiction or excess of jurisdiction
• Act in violation of natural justice
• The act which is ultra-virus or unconstitutional.
• The act which contravenes the fundamental rights.

The writ of prohibition is available only when the proceedings of the case are pending. It applies to the cases where the order has not been delivered yet. This writ helps people from arbitrary administrative actions.

Writ of Certiorari

Writ of certiorari means to certify. This writ helps to correct the illegality of decisions taken by subordinate courts. It orders an inferior court or tribunal or any other authority to transfer the record of proceedings disposed of or a case pending or for quashing the same. This writ can never be used for transmitting records or for quashing an act or ordinance. The grounds on which certiorari can be applied are:

• No jurisdiction or excess jurisdiction
• Need for correcting any error in the jurisdiction
• Abuse of jurisdiction
• Disregard of principles of natural justice.
• For correcting any error of law apparent on the face of records.

The writ of certiorari quashes the orders which fall under these grounds. The only error of law can be corrected by this writ; not the error in facts howsoever grave it may be. Error on the face of record should be self-evident without any examination to establish it. The writ of certiorari issued by the High Court is a supervisory jurisdiction; so the court cannot act as a court of appeal. Certiorari can be applied only after the order or decision has been pronounced by the court.

Writ of Quo Warranto

The writ of quo warranto questions the authority of a person in government authority. It is filed against the title of the holder in the office. This is a judicial order; which asks the person to show by what authority he holds his position in the public office. The writ issued to expel a person from his office; if such person does not have valid title or authority to hold office. It reviews the functions of administrative authority which appoints the people for various positions in public office.

It is, therefore, a mode of judicial control. Consequently, only the rightful appointment are made in the public office. Any aggrieved person can filed the petition for Quo warranto. Writ of quo warranto cannot issue to a person who is not holding public office.

Conclusion

The writ petition under the constitution has helped the growth of Public interest litigation in India. Many people are approaching the court for the protection of their fundamental rights. The judiciary is vested with vast powers to take control of administrative actions; when it violates the fundamental rights of the citizens or natural justice.

Therefore, the rights of the citizens are remains protected. High Court can interfere even when there is a violation of legal rights. The choice is with the aggrieved party, they can either appear to High court or Supreme Court. People should be aware of these constitutional remedies in order to protect their rights.

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Nivrutti Vs State Of Maharashtra and another

FACTS:

In this case, a writ petition was filed by the petitioner- Nivrutti. The petitioner filed the writ petition after his wife had filed a case against the petitioner for outraging the modesty of woman and utterance of obscene words in public places. It was alleged that the petitioner would beat up his wife and also accused her of earning money through prostitution. It was stated that Nivrutti would send her derogatory WhatsApp messages and would accuse her of prostitution time and time again. The respondent filed an FIR under sections 500, 507 and 294 of the Indian Penal Code. The petitioner denying all claims and filed an under Article 226 and 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure for quashing of the F.I.R.

ISSUE:

1. Whether sending personal WhatsApp messages amounts to utterance of obscene words at public place under article 294 of the Indian Penal Code
2. Under Article 226 and 227 of the Constitution of India and under Section 482 of the Code of Criminal Procedure for quashing of the F.I.R.

PETITIONER CONTENTION:

The petitioner contended that, there was no utterance of obscene words in public place as the messages were only sent in personal WhatsApp messages and not in WhatsApp groups or Facebook. The petitioner also contended that messages on WhatsApp are encrypted and not even WhatsApp has the authority to read their personal messages. The messages are secured with a special lock and only the receiver and sender have a special key needed to open it and read them.

RESPONDENT CONTENTION:

The respondent contended that, the section 294 of IPC will be valid as obscene messages will be sent to her by the petitioner and there is utterance of obscene words in public place. Further the respondent said that the petitioner also outraged the modesty of a woman i.e.- his wife and should be charged under section 509 of the Indian Penal Code.

JUDGEMENT:

The bench of Justice M.G. Sewlikar said that Personal WhatsApp messages cannot be considered as utterance of obscene words in public places as nobody else had the authority to read their messages. According to WhatsApp: 

 “These messages are secured with lock and only the recipient and sender have special key needed to unlock and read them. It further claims that every message sent has its own unique lock and key. It also claims that the WhatsApp does not store the messages on server, once they are delivered.”

The court acknowledged and stated that: 

“to call a woman, even if she is one’s own wife a prostitute and to call her that she earns money by indulging in prostitution amounts to insulting the modesty of a woman. Therefore, there is prima-facie evidence to indicate that the offence falls under Section 509 of the I.P.C. In view of this, F.I.R. is quashed to the extent of Section 294 of I.P.C. However, the prosecution is at liberty to carry out investigation to ascertain whether the offence under Section 509 of the I.P.C. is made out.”

So, the court said that section 294 of the Indian Penal Code will not be valid as personal WhatsApp messages cannot be considered as utterance of obscene words in public places.

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Birla Institute Of Technology Mesra Ranchi Vs. Yamini Shukla And Ors.

FACTS:

In this case, the respondent who has filed an appeal before the high court of Allahabad against Birla Institute of Technology Ranchi had applied for the entrance exam of the MCA course of the same institute and a call letter was issued to her implying that she has passed the entrance exam. Soon, a list of candidates who were admitted to the MCA course was displayed on the Notice Board of the Administrative Department of the Institute at Ranchi and her name was missing from that list. She also alleged that the candidates who were placed below her were present on the list put up on the notice board. The respondent could not present the graduation certificate and suspects that it was the reason she was not given admission but stated that it should not have been a reason for rejection as it was not deemed compulsory.

ISSUE:

Article 14 and Article 226 of the Indian Constitution.

PETITIONER CONTENTION:

It was contended by the petitioner that the applicant did not possess the requisite qualification at the relevant time for admission to the MCA course and also argued that it was a prerequisite that the petitioner should have cleared the qualifying examination before appearing for the interview. Since she failed to obtain the required certification her application was rejected.

RESPONDENT CONTENTION:

The respondent contended that, she never received any information about the compulsory requirement of mark-sheet and it should have been written in the brochure or conveyed to her. Also, a student with the same circumstances was admitted in the same college recently and she was allowed with the condition that her mark sheet be provided soon. So if the institute allowed the other candidate to take the admission and why was the respondent not allowed the same. It is further clarified that at the time of the interview, the petitioner knew that no mark sheet was submitted by the respondent and the college had full knowledge of it. No objection was taken by the college at that point.

JUDGEMENT:

The bench of Justice Brijesh Kumar and Justice K.C. Bhargava said that:

“According to two clauses of Art. 226 of the Constitution it is clear that a High Court can exercise the power to issue directions, orders or writs for the enforcement of any of the fundamental rights conferred by Part III of the Constitution which gives the fundamental rights. It can also do so if the cause of action, (wholly/partly), had risen in relation to which it exercises jurisdiction”.

The court said that it has some arbitrary power to take decisions on such issues and mentioned that since it is a specialized course, the authorities concerned must always endeavor to select the most suitable and meritorious persons. Lastly, the court declared that the respondent is to be admitted in the college with reasonable facilities to cover the lost period of the semester and the appeal by the petitioners be dismissed.

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Chinmayee Jena @ Sonu Krishna Jena v. State of Odisha

Facts:

The petitioner- Sonu Krishna Jena, age 24 years, filed an application under Articles-226 and 227 of the Constitution of India, 1950, whereby he approached the Orissa High Court with the grievance that his life partner- Rashmi(name changed) was forcibly taken away by her mother and uncle- respondents no- 5 and 6. The petitioner prays for a writ of Habeas Corpus directing the opposite parties to produce his partner before the court and to pass appropriate orders. The case was heard before the bench of S.K. Mishra and Savitri Ratho, JJ. The petitioner originally belonging to the female gender has exercised his rights of self-determination and preferred to be addressed as he/his, he relied on the judgement of the Supreme Court in the case of National Legal Services Authority v. Union of India and others (2014) in which it was held that self-determination is an integral part of personal autonomy, and self-expression falls under the realm of personal liberty guaranteed under Article-21 of the Constitution of India, this judgement also gave weightage to follow the psyche of the person in determining the sex and gender and preferred the ‘Psychology Test’ instead of ‘Biological Test’. As per this decision the petitioner has gone through two rounds of psychiatric evaluations and had Gender Dysphoria, he availed a certification from Dr. Amit Pattojoshi, D.R.M, M.D. (Neuro Psychiatry), dated 25-01-2020. The High Court recognized the right of the petitioner to be treated as male and be referred to as he/him/his.

Legal Provisions:

• Article 226 and 227 Constitution of India
• Article 21- Right to life and liberty, Article 14- Right to Equality and Equal Protection of Law.
• Protection of women from Domestic Violence Act. 2005.

Petitioner’s Contention:

The counsel for the petitioner stated that the petitioner and his life-partner have been in a consensual relationship since 2017. The went to the same school and same college, after completion of studies, the petitioner got a private job in Bhubaneshwar and was staying on rent in a housing colony, they mentioned that the petitioner and his life-partner fell in love in 2011, thereafter they decided to stay together. While they were residing together, on 09-04-2020, mother and uncle of the petitioner’s partner- Rashmi, came to the petitioner’s house and took her away against her will despite both the petitioner and Rashmi having attained the age of maturity and consensually deciding to stay in a live-in relationship. They contended that under the provisions of the Protection of Women from Domestic Violence Act, 2005 legislature had acknowledged live-in relationship by giving rights and privileges to women in such relationships. The also stated that though they belong to the same gender and are not competent into a ‘wedlock’, they still have the right to live together outside ‘wedlock’ in a live-in relationship. They also stated that the petitioner had filed a report before the Inspector in-charge at the Police Stations at Khandigiri and Jajpur, but the police authorities did not take any action. When the petitioner came to know that Rashmi’s family members were going to arrange her marriage with someone else, he filed a petition for the writ of Habeas Corpus.

Respondent’s Contention:

The counsel appearing for the State Government did not file a counter-affidavit, they recognized the right of persons belonging to the same gender for live-in relationship and submitted that the State was willing to carry out any order passed by this court. A notice was also sent to Opposite party no. 5 and 6 who did not file a counter-affidavit. However, when the court was going to pronounce its judgement, the counsel appearing for opposite party no. 5 and 6 prayed for adjournment twice. On 21-08-2020 when the court was to give its judgement the counsel for opposite party no. 5 and 6 while admitting to the legal position on rights of individuals belonging to the same gender set by the Supreme Court in its judgements, expressed concern about the well-being of Rashmi- opposite party no. 5’s daughter and prayed that if any order is passed in the petitioner’s favour appropriate safeguards should be given to Rashmi for her well-being and safety.

Observations of the Court:

The court observed the certification provided by the petitioner and said that the petitioner is a major having no psychological problem except for Gender Dysphoria/ Gender Incongruence and that he has normal cognitive functions, therefore, he is a mature adult and capable of taking his medical decisions. It also stated that he and his partner were residing at the same place in a live-in relationship. The court directed the Superintendent of Police, Jajpur to ascertain whether Rashmi wants to stay with the petitioner and to ensure that her marriage is not solemnized against her will. On 10-08-2020, the court direct the Superintendent of Police, Jajpur to secure the victim-Rashmi’s attendance and have a video conference with her on 17-08-2020. The court communicated over phone with the lady identified as the petitioner’s partner, she was explained that merely because a writ petition was filed making allegation of illegal restraint, she was not obligated to join the company of the petitioner and could stay with her family if she chooses to do so, but she specifically stated that she wants to join the company of the petitioner without any delay. The decision was not given on that day pursuant to respondent no. 5 and 6 requests. The matter was listed on 21-08-2020; the court referred to the judgement of the Supreme Court in National Legal Services Authority v. Union of India, wherein it considered the view of the United Nations and other Human Rights bodies and quoted the Yogyakarta Principles on application of International Human Rights in relation to Sexual Orientation and Gender Identity. 

Judgement:

The court allowed the writ petition and directed that the petitioner and the daughter of respondent no-5 have the right to decide their sexual preferences including the right to stay as live-in partners. The State would provide them with all the protections enshrined in Part III of the Constitution which includes the right to life, right to equality and equal protection of law. The respondent was directed let the police/administration take appropriate actions to facilitate Rashmi to join the society of the petitioner. Taking into consideration the concern of Respondent no. 5, the court directed the petitioner to take good care of Rashmi as long as she is residing with him and that the respondent nos. 5, 6 and Rashmi’s sister would be allowed to communicate with her over phone and otherwise. Rashmi was to have all the rights of a women under the Protection of Women from Domestic Violence Act, 2005. The Inspector in-charge of Police Station, Khandigiri, Bhubaneshwar was to obtain a written undertaking (to that effect) from the petitioner and to keep a copy with them and to send the original to the court to be kept as record. Justice Ratho, mentioned that the petitioner should ensure that his and Rashmi’s relationship does not affect the latter’s relationship with her mother and sister and the petitioner would ensure that Rashmi stays in touch with them and extends monetary support to them. The opposite party was not to create problems for them. 

The Orissa High Court made some really progressive observations on an individual’s right to autonomy and self-identity. The State and the court both recognized and upheld the rights of individuals in same-sex relations living together and guaranteed their protection as per the provisions of the Constitution. The Yogyakarta Principles provide a detailed guide on how the State can adopt provisions and make legislations to cater to the needs of Individuals in relation to Gender Identity and Sexual Orientation.

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