A writ can be defined as a formal written order issued by a body having judicial or administrative jurisdiction. It is primarily used to protect the liberty of a person and is issued when he/she has been detained illegally or wrongfully.
They are the most significant aspect of the constitution of India. Part III of the Indian Constitution deals with the Fundamental Rights of the citizens of the country. It includes the right to constitutional remedy which is deemed to be the most important of all the fundamental rights bestowed upon the citizens.
Art 32 of the Constitution of India speaks of the writs. Clause(2) of the Article specifies the names of the writs – habeas corpus, mandamus, certiorari, quo warranto and prohibition. This Article in Clause (1) guarantees the “right to move the Supreme Court by proceedings for the enforcement of the rights“ conferred by Part III of the constitution of India. Clause (3) empowers High Courts to exercise these writs within their jurisdiction. And, such is the importance of this right that Clause (4) prevents the suspension of the right except if provided by the Constitution. The importance and significance of this right can be understood in the words of Justice Gajendragadkar in Prem Chand Garg v. Excise Commr., U.P., AIR 1963 SC 996, 999 –
“The fundamental right to move this Court can therefore be appropriately described as the cornerstone of the democratic edifice raised by the Constitution. That is why it is natural that this Court should, in the words of Patanjali Shastri, J., regard itself ‘as the protector and guarantor of fundamental rights’ and should declare that “it cannot, consistently with the responsibility laid upon it, refuse to entertain applications seeking protection against infringements of such rights (vide Romesh Thappar v. State of Madras). In discharging the duties assigned to it, this court has to play the role of a ‘sentinel on the qui vive’ (vide State of Madras v. V.G. Row), and it must always regard it as its solemn duty to protect the fundamental rights ‘zealously and vigilantly”.”
The writs have not been defined anywhere in the Constitution and therefore, to understand their meaning and essence, we need to understand them through the words of Judges in various landmark judgements. They can be understood as under:-
1) HABEAS CORPUS
Habeas Corpus is a Latin term which literally translates to, ‘You may have the body’. This is that remedy of law through which any individual can file a suit of civil nature for unlawful detention and imprisonment. This writ can be issued to produce a person who has been so detained, before a court and to release him if such detention is found to be illegal.
The usages of Habeas Corpus as a constitutional remedy in India has been vast and extensive. In 1976, the Habeas Corpus writ was used in the famous Rajan’s Case, where in police custody, a student has become the victim of torture by the police during the National Emergency in India. It was held that the right against unlawful detention was not one which could be extinguished during emergency. More recently, on 12th March 2014, after Subrata Roy’s arrest, his learned counsel filed a Habeas Corpus petition before the Chief Justice of India. This can be cited as another example of the usage of this writ in India.
The writ of Habeas Corpus can also be dispensed using the doctrine of locus standi. Locus Standi denotes the capacity to file a petition in a court of law. In a petition for Habeas Corpus, the capacity to file a petition rests on not only the person who has been unlawfully detained but also on a competent person who can move on his behalf and this includes relatives, business partners and so on. After the rise of Judicial activism, the usage of this writ has expanded manifold.
Mandamus is also a Latin term, which literally means, ‘we command’. Mandamus is an orderissed by the higher courts such as the Supreme Court or the High Court’s directing a lower court or public authority to perform a statutory duty. This writ is issued when a lower court or any public authority has failed in doing a public duty assigned to it. But this writ cannot be issued to force an authority or a lower court to act beyond statutory provisions.
The Constitution empowers all High Courts to issue directions, orders or writs including the writ of mandamus for the enforcement of any of the rights conferred by Part III of the constitution. The Supreme Court also enjoys the right to issue mandamus for the enforcement of fundamental rights.
The main reason why mandamus is sought in India is – to compel public authorities to perform their statutory duties towards the public. Such a petition must be equally accompanied by a corresponding right vested in the petitioner making the claim. The essence of mandamus lies in its nature to command the execution of a statutory provision. Only the Supreme Court and High Courts are constitutionally empowered to exercise the jurisdiction of this Writ under Art. 32 andArt.226, respectively. The direction by virtue of this writ must duly be followed.
Prohibition is an English word that simply means to forbid. Also known as the ‘stay order’, this writ is issued by a higher court when an inferior court or a tribunal or a quasi-judicial body acts beyond its jurisdiction. The issuance of the writ by the Supreme Court or the High Court’s prohibits the inferior authority from exercising their powers beyond their jurisdiction. After the issue of this writ, proceedings in the court, etc. come to a halt.
In India, this writ was issued in the case of S. Govind Menon vs Union of India (AIR 1967, SC 1274). In this case, it was held that this writ could be issued by a superior court at any time of the proceeding if the inferior court was acting beyond its jurisdiction. Also, it cannot be issued against a body whose functions are exclusively legislative or administrative in nature. This writ is important to prevent an inferior body from exceeding its jurisdiction.
4) QUO WARRANTO
Quo Warranto essentially means – by what authority? It questions the authority of an individual in a public office if that individual is not entitled to be in the position which he is holding. It requires him to answer to the Court about how he has come to hold such office and what authority he has in the said office. The court through this writ may direct the individual to perform certain functions or to vacate the office. For Example, a High Court can issue the writ of Quo Warranto against an individual who continues to hold a public office beyond his statutory retirement age.
There are a few conditions which are to be satisfied for filing a writ under Quo Warranto and they include:-
• The said office must be a government or a public office which performs public duties. Ex: Municipal Corporations.
• The public office should be permanent and cannot be terminated and should be having a real existence.
• A person against whom the writ is issued must possess the public office at the given time.
• The writ shall be issued only when the public office is held by a particular person, illegally or without a statutory provision.
The term ‘Certiorari’, literally means – to be reviewed. This writ can be prayed for to the Supreme Court or the High Courts for judicially reviewing the judgement, order or decree of an inferior court or any quasi-judicial authority or any tribunal if the aggrieved part or the superior court thinks that the order was passed without due considerations. The superior court by the virtue of this writ can order the transfer of the case in question to a proper court for it to be considered appropriately.
In the famous case of Nagendra Nath Bora & Anr. Vs. Commissioner of Hills Division and Appeals, Assam & Ors., (1958) SCR 1240, the Constitution bench of the Supreme Court laid down the parameters of proper exercise of jurisdiction. Unlike the writ of prohibition which is usually issued at an earlier stage of a proceeding, a writ of certiorari can be issued at any stage of the proceeding. The basic objective of both is to secure proper exercise of jurisdiction by a judicial authority.
Any citizen can move to the Supreme Court for getting his fundamental right/rights protected through any of these writs. Besides the Supreme Court, the High court can also issue these writs (Art 226) for enforcing the fundamental rights of the people., During an emergency, however (under Art. 352 or 356) the President has the right by a specific order to suspend the right to move a court for the enforcement of the fundamental rights, except the rights available under Articles 20 and 21.
The right to constitutional remedy (Art 32) is often rightly described as the most fundamental of all the rights because without it , the people would be left with no means to get their rights enforced. Speaking in the constituent assembly, on the importance of Article 32 of the Constitution, Dr. B.R. Ambedkar rightly observed,
‘If I was asked to point out any particular article in this constitution as the most important article without which the constitution would be a nullity- I could not refer to any other article except this one.’
Sex Selection is the act of identifying the gender of the foetus and the elimination of the unwanted sex of an offspring. It is an attempt to control the sex of the offspring and achieve a desired sex. In India, a male child has always been preferred over a female child, from time immemorial. This was mainly due to the prevalence of a patriarchal mindset and also the rules of inheritance that favored the male. It is disheartening that even after 69 years of Independence, in this 21st Century, the craze for a male child has not died down and there still exists selection of the favoured sex and aborting the female child. If statistics are to be believed,1,00,000 abortions are carried out each year, solely because the foetus is a female. The present sex ratio of India is 943 females per 1000 men (As per the 2011 Census) and it is considerably low across many states in India.For instance, Dhimana and Behrana villages of Haryana have been recorded to have a dangerously low sex ratio of 444 and 378 respectively, the lowest sex ratios in India. It is a shame for the world’s largest democracy to face such an abuse of gender and human rights.
It is to be noted that causing miscarriage of a woman is an offence under the Indian Penal Code, whether it is with her consent or without her consent. This penal provision being very wide definitely covers female foeticide (where if it is known that the unborn child is a female, the miscarriage may be caused) and also infanticide (where a female infant may be killed) but does not explicitly cover sex selection and abortion in its ambit. Thus, India passed its first law against abortion, the Medical Termination of Pregnancy Act in 1971 which made abortion legal only in very specific circumstances such as the medical risk to the mother or pregnancy due to rape. It also established the procedure to be followed by the physicians and the facilities where abortions can be performed. The basicloophole in this statute was that, the law did not anticipate the increase in sex selective abortion based on the advancement of technology. To fill the gap, the Government of India passed a new law, The Pre-Natal Diagnostics Techniques Act (PNDT) in 1994. This law was further amended in 2004 and the Pre-Conception and Pre-Natal Diagnostic Techniques (Regulation and Prevention of Misuse) (PCPNDT) Act came into being to prevent and punish prenatal sex screening and selective sex abortions. This was introduced basically for offences including the conduction and abetment of pre-natal sex determination by unregistered centre’s, selection of sex on either genders, conduction of PND test for any purpose other than those specified under the provision of the said Act. It is a statute which is preventive in nature. While preventing the people and unregistered medical centres from using techniques to detect and select test, the Act also prevents companies and dealers from making any unauthorized supply, sale, distribution or rent of any equipment which can be used for such purposes.
The basic provisions of the Act can be highlighted as under:-
- It prohibits the selection of sex, before or after conception.
- It gives out the grounds for the use of pre natal diagnostic techniques which include genetic and chromosomal abnormalities, metabolic disorders, congenital malformations, haemoglobinopathies and sex linked disorders.
- It prevents any laboratory or clinic to perform any test of ultrasonography for the purpose of determination of the sex of the foetus.
- Any advertisement in any form for the pre natal and pre conception sex determination is strictly banned, and can incur a punishment of imprisonment for upto 3 years and/or fined Rs. 1000.
This Act also makes mandatory the registration of all diagnostic laboratories, genetic counseling centres and laboratories, genetic and ultrasound clinics.
Very recently, on 16th November, 2016, the Supreme Court Bench headed by Justice Dipak Misra directed search engines such as Google, Microsoft, Yahoo to take down all advertisements and links on pre-natal and pre-conception sex determination within 36 hours as they were in direct violation of the PNDT Act, 1994. The Supreme Court said to the search engines: “Whether one is going to have a boy or a girl, that kind of information is not necessary in India. The sex ratio is going down in the country and we are concerned about that. Whether you are making money or not we are not concerned with that.” The object behind the PNDT Act and its necessity is embodied in the words of the Supreme Court.
This Act was a positive step in the right direction tocurb the menace of female foeticide and abortion of the unwanted foetus. This is very necessary in a country like ours, where thousands of female children suffer from the regressive mindset of the society at large through this rampant gendercide. At the end of the day, laws are meant to protect its citizens from the abuse of human rights and this law is a progressive check on a society where girls are sentenced to death even before they are born.
When the three Courts of Calcutta, Bombay and Madras were established, the English Common Law and statute law relating to contracts were introduced, suited to Indian conditions, by the Charters’ Application of English law to the Muslims and the Hindus, which led to many further inconveniences. To remove this difficulty and bring in uniformity, the statute of 1781 empowered the Supreme Court (the then Court of Calcutta) and the statute of 1797 the Recorders Court; i.e., Court of Bombay and Madras to determine all matters of contract in case of Muslims by the laws governing them and in case of Hindus by the laws and usages they follow. The effect of the statutes was to supercede English law so far as regards to the Hindus and the Muslims in case of contracts. In spite of bringing in these changes, by the Statutes of 1781 and 1799, the problems being faced were not effectively resolved. A comprehensive law was strongly felt to be necessary, especially in regard to contracts. Accordingly, the Indian Contract Bill was introduced in the legislature and eventually passed to give rise to The Indian Contract Act of 1872.
WHAT IS A CONTRACT?
In the terms of a layman, a contract means an agreement that is legally binding on the parties. An offer has to pass through the stages of promise, consideration, acceptance and agreement before it finally becomes a contract. The Law of Contracts is based on a Latin maxim, ‘pactasuntservanda’ which roughly translates to ‘agreements must be kept’. Contracts are an indispensable part of our everyday life and The Indian Contract Act,1872 helps protect the rights of the parties involved in the contract. It helps in carrying out the businesses smoothly and effectively and ensures the parties to receive the benefit of law on its breach.
With every contract, the parties enter into an agreement under which they are subjected to certain rights and duties which are legally enforceable by the court of law. If the provisions are breached/violated by any one of the party/parties, the other party/parties can file a suit in the court of competent jurisdiction (as provided under the Code of Civil Procedure) and claim the damages, if any. As such, the law of contracts is very important for any person in the society. The knowledge of contract laws, is very important so as to know the rights that have been bestowed to us by the Constitution and the remedies we can avail of in case of the breaches.
THE INDIAN CONTRACT ACT, 1872
The Indian Contract Act, 1872, lays down the basic framework under which all the contracts in India are legally bound. Presently, the Act is divided into two major parts – The First part deals with the General Principles of Contract (Sec 1-75); and the second part deals with the special kinds of contract which include the contracts of Indemnity and Guarantee; Bailment and pledge; and Agency. Each part deals with its respective issues as defined under their subsections and spells out the remedies in case of a breach in any one of its clauses. In the famous case of MohoriBibee V DharmadasGhose (1903) 30 Cal.539, where an agent of defendant advanced a sum of money to the plaintiff, an infant, who is incompetent to contract, against the mortgage of the property of the plaintiff, the court upheld the sections 10,11,2(g),2(h), and declared the contract void ab initio (from the very inception). It was on the basis that the parties were not competent to contract (Sec 11) and hence was not enforceable by law (Sec 2(h)).
Another requisite for a valid contract is free consent which is defined under Section 14, which reads, ‘Consent is said to be free, when it is not caused by 1) Coercion, 2) Undue influence, 3)Fraud,4)Misrepresentation,5)Mistake’. Thus, it lays down the clauses which defines each of the above and gives the recourses of law, to take, in case of a violation. In the case of Hi- Tech Gears Ltd. Vs Yogi Pharmacy Ltd. And Ors (1997), it was ruled that the agreement was not a contract as there was no free consent. Instead there was a proof of the use of coercion and undue influence, used by the petitioner as they were in a dominant position.
The basic objective, as such of the contract law is to ensure that the rights and obligations arising out of contracts are duly respected and honored, and that there are remedies available in the course of law to an aggrieved party against the guilty party.Thus, the knowledge of contract laws will help in understanding the rights that we are able to enjoy and the courses in law we can avail of in case we face a violation of the aforementioned rights. They help us maintain a dignified life in society where our rights are protected by the court of law.