Writs and Judicial Review: Articles 32, 226 and PYQs

The correct answer is C, Certiorari. Certiorari is Latin for to be certified or to be informed, and the writ does exactly that: a higher court calls up the record of a case from a lower court or tribunal, either to transfer the matter to itself or to quash an order already passed because of excess of jurisdiction, lack of jurisdiction or an error of law. It is a curative writ, issued after the order exists. Option A is wrong because prohibition means to forbid; it is preventive and stops a subordinate court while the proceeding is still pending. Option B is wrong because quo warranto means by what authority and questions a person's title to a public office. Option D is wrong because habeas corpus means to have the body of, and is used to produce a detained person before the court so that the legality of the detention can be tested.

The correct answer is D, Both (A) and (B). Habeas corpus can be issued by the Supreme Court under Article 32, where it is a remedy for the breach of the Fundamental Right to personal liberty, and by every High Court under Article 226, which covers Fundamental Rights and any other purpose as well. Options A and B are each incomplete for that reason: naming only one of the two courts leaves out a jurisdiction the Constitution expressly grants. Option C is wrong because a district and sessions court has no writ jurisdiction at all; writs are a constitutional power given only to the Supreme Court and the High Courts, and Article 32(3) allows Parliament to extend the power to another court, which it has never done. Remember also that habeas corpus is the one writ that can be issued against a private person as well as against the state.

The correct answer is B, Article 32. Article 32 guarantees the right to move the Supreme Court for the enforcement of Fundamental Rights and empowers the Court to issue directions, orders and writs for that purpose, which is why it is titled the right to constitutional remedies and why Dr B. R. Ambedkar described it as the very soul of the Constitution. Option A is wrong because Article 19 lists the six freedoms, such as speech and expression and movement, and is a substantive right rather than a remedy. Option C is wrong because Article 226 is the writ jurisdiction of the High Courts; it is a constitutional power of those courts but it is not itself a Fundamental Right and it lies outside Part III. Option D is wrong because Article 14 guarantees equality before the law and equal protection of the laws, again a substantive right.

The correct answer is B, Prohibition. Prohibition means to forbid. It is issued by a superior court to a lower court or a tribunal to stop it from continuing with a proceeding that lies beyond its jurisdiction, so by its nature it can be directed only at bodies exercising judicial or quasi-judicial functions, never at an administrative or a legislative body. Option A is wrong because mandamus is issued precisely to administrative authorities and public officials to compel the performance of a public duty, although not to a private person. Option C is wrong because habeas corpus is directed at whoever holds a person in detention, which may be a public authority or even a private individual. Option D is wrong because quo warranto is directed at a person occupying a public office. Remember the pair: prohibition is preventive and certiorari is curative.

The correct answer is C, the President of India. Mandamus means we command, and it is issued to a public body or official to perform a public duty that it has refused to perform. The courts have, however, placed the President of India and the Governors of States outside its reach, along with the Chief Justice of a High Court acting in a judicial capacity, private individuals and bodies, purely discretionary duties, and obligations arising from an ordinary contract. Option A is wrong because a municipal corporation is a public authority with statutory duties and is a classic respondent to mandamus. Option B is wrong because an inferior court can be commanded to exercise a jurisdiction it has wrongly declined. Option D is wrong because a statutory tribunal is a public authority and, after L. Chandra Kumar in 1997, remains fully subject to the writ jurisdiction of the High Courts under Article 226.

The correct answer is B, any interested person. Quo warranto, meaning by what authority, asks a person occupying a public office to show the legal basis of the claim to it, and because an unlawful occupation of public office is a public wrong, the courts allow any interested person to apply, not merely one who has suffered a personal injury. This is the exception to the usual rule in writ proceedings, where the petitioner must be the aggrieved party. Option A is wrong for that reason. Option C is wrong because the Attorney General has no monopoly over such a petition; the office is the government's law officer, not a gatekeeper for writs. Option D is wrong because a rival candidate is only one example of an interested person. Remember the limits: the office must be a substantive public office created by the Constitution or a statute, and not a private or ministerial post.

The correct answer is C, Article 226. Article 226 empowers every High Court to issue directions, orders or writs, including the five writs, for the enforcement of Fundamental Rights and for any other purpose, and that last phrase is what makes the High Court's writ jurisdiction wider than the Supreme Court's. Option A is wrong because Article 32 is confined to the enforcement of Fundamental Rights; the Supreme Court cannot be moved under it for an ordinary legal right. Option B is wrong because Article 136 provides for special leave to appeal, a discretionary appellate power of the Supreme Court, not writ jurisdiction. Option D is wrong because Article 227 gives the High Court superintendence over all courts and tribunals within its territory, an administrative and supervisory power distinct from the issue of writs. The 42nd Amendment of 1976 curtailed Article 226 and the 43rd Amendment of 1977 restored it.

The correct answer is B, the Minerva Mills case of 1980. In Minerva Mills v. Union of India the Supreme Court struck down the provisions inserted by the 42nd Amendment Act of 1976 which had declared that no constitutional amendment could be called in question in any court and had given Parliament unlimited amending power, holding that both judicial review and the limited nature of the amending power belong to the basic structure. Option A is wrong because Golaknath, decided in 1967, held that Fundamental Rights could not be abridged by amendment and is remembered for the doctrine of prospective overruling, but it predates both the 42nd Amendment and the basic structure doctrine. Option C is wrong because Shankari Prasad of 1951 upheld the First Amendment and took the opposite view of the amending power. Option D is wrong because Maneka Gandhi of 1978 expanded the meaning of personal liberty under Article 21.

The correct answer is B, the United States of America. Judicial review, together with the independence of the judiciary, the removal of judges by impeachment, the written preamble and Fundamental Rights, is among the features the makers of the Indian Constitution took from the American system, where the Supreme Court asserted the power in Marbury v. Madison in 1803. Option A is wrong because Britain has parliamentary sovereignty and no written constitution against which an Act of Parliament can be measured; from Britain India took parliamentary government, the rule of law, single citizenship and the writs as a form of remedy. Option C is wrong because Ireland is the source of the Directive Principles, the nomination of members to the Rajya Sabha and the method of electing the President. Option D is wrong because Canada supplied the federation with a strong Centre, residuary powers with the Union and the appointment of Governors.

The correct answer is C. Article 32 appears in Part III and is a Fundamental Right in its own right, which is why a petition under it cannot be refused once a breach of another Fundamental Right is established. Option A is wrong because the jurisdiction under Article 32 is confined to the enforcement of Fundamental Rights; an ordinary legal right is pursued in a High Court under Article 226 or in a civil court. Option B is wrong because Article 359 allows the President, during the operation of a National Emergency, to suspend the right to move any court for the enforcement of the rights mentioned in the order. Option D is wrong because the power to issue the writs is conferred directly by Article 32(2); what Article 32(3) adds is that Parliament may empower some other court to issue them, a power not yet exercised.

The correct answer is B. Habeas corpus is refused where the detention is lawful, where the proceeding is for the contempt of a legislature or a court, where the detention has been ordered by a competent court, and where the detention is outside the territorial jurisdiction of the court approached. Option A is wrong because habeas corpus is the one writ that lies against a private person as well, so a person wrongfully confined by a private individual can be produced before the court. Option C is wrong because a failure to communicate the grounds of arrest violates Article 22, which makes the detention illegal and the writ available. Option D is wrong because the writ is precisely the remedy where a detention that may have begun lawfully has since become illegal; the court looks at the legality of the detention on the date it hears the petition.