Fundamental Rights and the Writs Under the Constitution

Since the independence of India and incorporation of part III in the Constitution of India people at large have grown highly conscious about the infringement of their fundamental rights and applications under cl. 226 in High Courts are of daily occurrence. Numerous applications under the said article are being daily entertained and disposed of in our High Courts; therefore the extent of the powers of the High Courts under the said article, the nature of the reliefs available thereunder to the people should be definitely known.  No rule appears to have been framed by the High Court regarding the pleading or the procedure prescribed for such applications, particularly as to whether the English practice regarding the old prerogative writs have got to be compulsorily followed or not; and to the knowledge of the writer several applications have been found to be defective as not conforming to the rules of English laws of practice and pleading prescribed for the old prerogative writs under the English law by no less an authority than the Chief Justice Harries and Banerjee J. and their Lordships in those cases gave leave to withdraw those applications and awarded heavy costs against the petitioners with liberty, however, to bring in fresh applications properly drawn up under the English laws of pleadings prescribed for such applications and the position has been rendered much more complicated particularly by virtue of the recent decision of Supreme Court reported in Province of Bombay v. Khusaldas, A. I. R. (37) 1950 S. C. 222 : (53 Bom. L. R. 1) and the dissentient views of different Judges in the said decision. The said case originated in an application under S. 45 of the Specific Belief Act at a date prior to the Constitution of India came into force and there the application was not made under Art. 226 or 32 (in Supreme Court) but reached the Supreme Court in appeal. The High Court of Calcutta appears to follow the said decision in cases where a writ is asked for quashing proceedings which infringed the fundamental rights and refused reliefs in cases by applying the same principle as has been laid down in the aforesaid Supreme Court decision if their Lordships found as of fact that the proceedings complained of and sought to be quashed were not judicial or quasi-judicial acts or were purely executive acts and there was no mala fides on the part of the officers concerned. Part III of the Constitution defines certain fundamental rights. By Art. 32 the enforcement of the said rights is guaranteed through the intervention of the Supreme Court. Clause 32 (2) empowers the Supreme Court to issue directions orders or writs including writs analogous to the writs in England which the Kings Bench division in England used to issue or English Courts would now issue. Clause 32 (4) makes it obligatory on the part of the Supreme Court to issue an appropriate writ whenever a case of infringement of fundamental right appears to have been made out within the limitation prescribed namely that the infringement complained of was an unauthorised infringement under the Constitution.  Clause 226 only empowers the High Court to exercise similar powers as arc exercisable by the Supreme Court under cl. 32 (2) of the Constitution and also in addition authorise it to issue any such writ or writs, directions or orders for any other purpose. The power of a High Court appears to have been much more than that of the Supreme Court in this regard which was empowered to exercise any such powers only in the case of infringement of fundamental rights and in ease of infringement of no other right as are not recognised in Part Art. III of the Constitution.  Further more it is significant to note that there is no compulsion in the case of High Courts to exercise such powers as is indicated in the case of Supreme Court in cl. 32 (4) of the Constitution. The question necessarily arises then as to whether the said power is discretionary on the part of the High Court in an application under cl. 226.  Again from a plain reading of cls. 32 (2) and 226 (l) it lends considerable support to the view that the “Directions. Orders and Writs” occurring in both the sub-clauses are quite distinct and separate from the writs in the nature of Habeas Corpus, Mandamus, Prohibition, Qua warranto etc.. This appears from the two disjunctive conjunctions “or” between those two sets of reliefs and thereafter in “or any one of them” but some Courts are of opinion that they are aware only of the writs known under the English law and no relief could be given otherwise than in somewhat analogous applications for any one of the well known English writs named in the said sub-clauses, and they strictly adhere to the rules and practice as to pleading and procedure laid down for those old English writs.  Some Courts are again of opinion that since S. 45 of the Specific Relief Act has not been repealed the clause “and for any other purpose” occurring in cl. 226 (i) means remedies available to a party under S. 45 of the Specific Relief Act. This view overlooks that a High Court having no original jurisdiction cannot assume or exercise jurisdiction under S. 45, Specific Belief Act. India differs fundamentally from England in many respects and it is difficult to understand as to why the English rule of practice, in pleading or procedure should be strictly followed and adhered to in cases of applications under cl. 226.  I shall deem it a great favour and that for the public purpose if you would kindly express your views through your most esteemed journal on the following points :  Whether the powers under cl. 226 of the Constitution are purely discretionary powers. Whether the High Court has power to issue writs, directions or orders in all cases of unauthorised infringement of fundamental rights quite irrespective of the writs known in English law namely those in the nature of Habeas Corpus, Mandamus, prohibition, quo warranto and certiorari. Whether “any other purpose” occurring in cl. 226 only preserves the power of the High Court under S. 45 of the Specific Relief Act or it means and includes all or any case or cases of infringement of a right other than the fundamental right. Whether the power of High Court under S. 45, Specific Belief Act has become more extensive by virtue of cl. 226 of the Constitution in that an application under S. 45, Specific Relief Act, will now lie against the State. Whether the tests laid down in Province of Bombay v. Khusaldas, A. I. R. (37) 1950 S. C. 222, : (53 Bom. L. R. 1) would be a good law and has got strictly to be followed in an application in the nature of certiorari for quashing proceedings in executive acts which will infringe unauthorised infringement of fundamental rights. Whether English practice as to pleading and procedure has got to be strictly adhered to and followed in an application under cl. 226. It shall also be a great favour to the profession if you would indicate in your journal the necessity of laying down by the High Courts of certain rules under Art. 226 of the Constitution as to the practice, pleading and procedure.

Author Name: Nitya Ranjan Biswas