ALIGARH MUSLIM UNIVERSITY

MALAPPURAM CENTRE, KERALA

ADMINISTRATIVE LAW
GCT-2nd
Topic- Writ of Habeas Corpus and Quo-
Warranto

Submitted to Submitted by
Mr.Shahnawaz A. Malik Kunjali Singh
Assistant Professor GK7931
Department of law 18BALLB34
Topic Page no.
Introduction 3
Writ Of habeus corpus- 3-4
Nature and Scope
When habeas corpus 4-5
may lie
When habeas corpus 5
doesn’t lie
Does habeas corpus lie in 5-6
National Emergency
Writ of Quo-Warranto 6-7
Who can apply? 7
Fundamental basis for 7-8
proceedings
Conditions for issuing 8
Conclusion 9
References 9
Introduction
Writs are a written order from the Supreme Court or High Court that commands constitutional
remedies for Indian Citizens against the violation of their fundamental rights. Article 32 in the
Indian Constitution deals with constitutional remedies that an Indian citizen can seek from the
Supreme Court and High Court against the violation of his/her fundamental rights. The same
article gives the Supreme Court power to issue writs for the enforcement of rights whereas the
High Court has the same power under Article 226.

Indian constitution has adopted the concept of prerogative writs from English common law.
Writs was first used to describe a written command of the King. Whereas, these writs are now
available to a person aggrieved by the decision of the inferior courts or administrative body in
England.

In the case of Romesh Thapar v State of Madras1 , it was held that person can come directly to
the Supreme Court for the infringement of Fundamental rights and the Supreme Court is under an
obligation to pass the orders . In the case of P N Kumar v MCD2, the Supreme Court clarified
that Article 32 and Article 226 are both effective remedies but it is better that we first go to the
High Court. This case was basically because of the fact that there was a huge pendency in the
Supreme Court. The petitions to the Supreme Court are subject to Res Judicata except the writ of
Habeas Corpus.

In the case of Daryao v State of Uttar Pradesh3 , certain guidelines were laid down:

1. If a petition has been filed under Article 226 and has been considered on merits, then it
would bind the parties.
2. It is not open to parties to again go to SC on the same facts.
3. But if the petition under Article 226 has not been dismissed on merits but on laches
(delay), then it would not be a bar to file a petition under Article 32.
4. If the petition under Article 226 has been dismissed in limine (on the same day without
much hearing or argument) and if the orders are with reasons, it would be a bar but if it
is not a speaking order, then it would not be a bar

1 SC 1950
2 SC 1987
3 1961 SC
By such writs the Judiciary can control the administrative actions and prevent any kind of
arbitrary use of power and discretion.

There are 5 kinds of writs

- Mandamus
- Certiorari
- Prohibition
- Quo warranto
- Habeas corpus
In this project we are going to study the Writ of Mandamus and Writ of Certiorari in detail.

Writ Of Habeas Corpus

The word habeas corpus literally means to have a body. A writ of habeas corpus is in the nature
of an order upon the person who has detained another to produce the latter before the court, in
order to let the court know on what ground he has been confined and set him free if there is no
legal justification for the imprisonment.
The writ was regarded in England as a foundation of human freedom and British citizen insisted
upon this privilege wherever he went whether for business or colonization. This is how it founded
a place in the constitution of the United States when the British colonies in America won their
independence and established a new state under the U.S. Constitution. In India the power to issue
a writ of habeas corpus is vested only in the Supreme Court and the High Court. 4

Habeas corpus is the writ which was visualized as an effective means to provide a quick remedy
to a person who has lost his personal liberty without any legal justification. Therefore, it cannot
be used for complaining against past illegal detention. But the Supreme Court in India has
expanded its dimension and compensation is being paid not only for past illegal detention but also
for loss of life. Initially, the state was asked to pay special cost to the prisoner.

This happened in Rudul Shah v. state of Bihar5. But now the payments are ordered to be given
as compensation. This is probably done for the reason that in a regular civil suit for damages for
false imprisonment, the state may successfully put the defence of Sovereign immunity.

Detention should not contravene Article 22, as for example, a person who is not produced before
a magistrate within 24 hours of his detention is entitled to be released. The power of detention

4 m sumi arnica :writ of hebeas corpus available at www.legalserviceindia.com accessed on may 15 2021
5 (1983) 4 SCC 141
vested in an authority, if exceeded, abused or exercised mala fide makes the detention unlawful.
Article 21 of the Constitution having declared that no person shall be deprived of life and liberty
except in accordance with the procedure established by law, a machinery was needed to examine
the question of illegal detention with utmost promptitude. The writ of habeas corpus has been
described as a writ of right is grantable ex debito justitae.6 When physical restraint is put upon a
person under a law there is no right to habeas corpus unless the law is unconstitutional or the order
is ultra vires the statute.

When habeas corpus may lie

The writ of habeas corpus is available as a remedy in all cases of wrongful deprivation of personal
liberty. It is a process for securing the liberty of the subjects by affording an effective means of
immediate release from unlawful or unjustifiable detention, whether in prison or in private
custody. The Constitution confers ample powers on the Supreme Court and all High Courts in the
matter of issue of a writ of habeas corpus.
The right to move the Supreme Court under Article 32 for the enforcement of fundamental rights
is itself a fundamental right, while the right to move a High Court under Article 226, though not a
fundamental right, is still a constitutional right.

In Sunil Bhatra V/S Delhi Administration it has been held that the writ of habeas corpus can be
issued not only for releasing a person from illegal detention but also for protecting prisoners from
the inhuman and barbarous treatment. the dynamic role of judicial remedies imports to the habeas
corpus writ a versatile vitality and operational utility as bastion of liberty even within jails.

In Veena Sethi V/S State Of Bihar In this case it was held that the court was informed through a
letter that some prisoners, who were insane at the time of trial but subsequently declared sane,
were not released due to inaction of state authorities and had to remain in jails from 20 to 30 years.
the court directed they be released forthwith.
In D.S Nakara v/s Union of India in this case it was held that a registered societies, non-political,
non-profit making and voluntary organizations are entitled to file a writ petition ie, habeas corpus
under article 32 of the constitution for espousing the cause for the large number of old infirm
pensioners who are unable to approach the court individually. We command you, that the body of
A.B. in Our prison under your custody detained, as it is said, together with the day and cause of
his taking and detention, by whatever name the said A.B. may be known therein, you have at our
Court ... to undergo and to receive that which our Court shall then and there consider and order in
that behalf. Hereof in no way fail, at your peril. And have you then there this writ. The habeas writ
was used in the Rajan case, a student victim of torture in local police custody during the nationwide

6 ibid
Emergency in India in 1976.On 12th March 2014, Subrata Roy's counsel approached the Chief
Justice moving a habeas corpus petition. It was also filed by Panthers Party to protest the
imprisonment of Anna Hazare, a social activist.

When Habeas Corpus doesn’t lies

In the following cases, a writ of habeas corpus will not lie and will be refused by a court:

• Where the person or authority against whom habeas corpus is sought is not within the
territorial jurisdiction of the court;
• Where imprisonment or detention of a person is in accordance with a decision rendered by
a court of law or by an authority in accordance with law;

Whether writ lies in National Emergency

A National Emergency made be declared under Article 352 of the Constitution. Prior to 1978, i.e.
before the 44th Amendment, the president could suspend and fundamental right including the right
of personal liberty (Article 21).

When Article 21, was so suspended, it was held in Addl. District Magistrate, Jabalpur v. Shukla,
that an order of preventive detention could not be challenged even if it violated the parent Act (i.e,
the Act relating to preventive detention). The 44th Amendment, 1978, has provided that Article
21, relating to personal liberty cannot be suspended even during an emergency. In this way
personal liberty has been strengthened and the writ of habeas corpus retains its potency even during
an emergency.7

Rule NISI
Nisi means Unless. At the first hearing of an application for a writ of habeas corpus, if the court is
prima facie satisfied that the prayer deserves to be granted, it may issue rule nisi and call upon the
person or authority against whom such writ is sought on a returnable day to show cause as to why
rule should not be made absolute and he prisoner should not be released from detention or
confinement.

Res Judicata

7Tanu Kapoor; 1 st year student at rajiv Gandhi national law university, intern at latest laws ; analysis of types of
writs under constitution of india; available at www.latestcaselaws.com published at march 7,2020 accessed on
may 15,2021
When the topic of whether standard of res judicata applies if there should arise an occurrence of
writ request of habeas corpus, it was held that, So far as Indian Law is concerned, it is genuinely
all around settled that no second appeal to for a writ of habeas corpus on the same grounds is viable
if a prior appeal is released by the court. 8

Pleadings
It is well settled that strict rules of pleadings do not apply to an application for a writ of habeas
corpus. The Supreme Court as also High Court have consistently shown great anxiety of personal
liberty and have never refused to grant relief to the applicant merely on the ground of imperfect
pleading9.

Writ of Quo-Warranto
The word Quo-Warranto literally means "by what warrants?" It is a writ issued with a view to
restraining a person from acting in a public office to which he is not entitled. The Writ of
quowarranto is used to prevent illegal assumption of any public office or usurpation of any
public office by anybody. For example, a person of 62 years has been appointed to fill a public
office whereas the retirement age is 60 years. Now, the appropriate High Court has a right to
issue a Writ of quo-warranto against the person and declare the office vacant.

Who can apply

A writ of Qua-Warranto can be claimed by a person if he satisfy the court that—
1. the office in question is public office

2. it is held by a person without legal authority the writ of Qua Warranto is not issued in respect
of an office of a private character.
Thus in Jamalpur Arya Samaj Sabha v/s Dr. D. Ram in this case it was held that the high court
refused to issue a writ Qua Warranto against the members of the working committee on the Bihar
Arya Samaj Sabha, a private association. The meaning of the term Quo Warranto is ‘by what
authority’. The writ of quo warranto may be issued against a person holding a public office or
governmental privilege. The issue of summon is followed by legal proceedings, during which an
individual’s right to hold an office or governmental privilege is challenged. The writ requires the
concerned person to explain to the Court by what authority he holds the office. Although a writ of
mandamus can also be issued on the grounds of mala fides and arbitrariness, but when the office

8 Supra note 2
9 Supra note 2
is filled up, a writ of quo-warranto is preferable. Mandamus is desirable to be issued when the
office is vacant.

Fundamental basis for Proceedings

The fundamental basis of the proceeding of Quo Warranto is that the public has an interest to see
that an unlawful claimant does not usurp a public office. It is, however, a discretionary remedy
which the Court may grant or refuse according to the facts and circumstances of each case. Thus,
it may be refused when it is vexatious or where it would be futile in its result or where the
petitioner is guilty of laches or where there is an alternative remedy for ousting the usurper. In
P.L. Lakhan Pal Vs A.N.Ray, (AIR 1975 Del.66) , the Delhi High Court refused to issue writ
against Chief Justice of India, Justice Ray because it would be futile in its result as the three
Judges senior to him already resigned. Justice Ray becomes the seniormost and as such can be
re-appointed even it were assumed that the appointment of Chief Justice of India should be on
the basis of seniority rule.

Conditions for issuing of Quo-Warranto

The office must be public and it must be created by a statue or by the constitution itself.
• The office must be a substantive one and not merely the function or employment of a
servant at the will and during the pleasure of another.
• There must have been a contravention of the constitution or a statute or statutory
instrument, in appointing such person to that office.
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.

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.

References
1. Kailash rai, administrative law, Allahabad law agency Seventh
edition 2016.
2. Pratibha Bansal “ Writs in Constitution of India” website-
https://blog.ipleaders.in/writ/

3. Tanu Kapoor “ Analysis of types of writs under constitution of

India" https://www.latestlaws.com/articles/analysis-of-types-of-
writs-under-constitution-of-india-landmark-cases-by-tanu-
kapoor/

4. Ajay C. “ Types of Writs in Constitution”

http://www.legalserviceindia.com/legal/article-68-types-of-writs-
in-indian-constitution.html