top of page


“Justice consists not in being neutral between right and wrong, but in finding out the right and upholding it wherever found, against the wrong”- Theodore Roosevelt.

The Judiciary has placed an important role in defining and recognizing the rights of the weaker sections and by doing so, embracing the spirit of constitutionalism and separation of powers. The Indian constitution facilitates a comprehensive system of checks and balances which ensures that none of the three constitutional organs, namely legislature, executive and judiciary overstep the power and authority allotted to them.

Part III of the Indian Constitution guarantees to the public, certain essential fundamental rights. However, as pointed out rightly by A G Agarwal, “A right without a remedy is nothing but a rope of sand”. To recognize the same, the Constitution has comprehensive provisions to take due care that the Fundamental Rights of the people are not infringed without a proper justification. Such provisions for ensuring that the public gets appropriate and proportionate remedy for violation of their rights stem majorly from Articles 13,32 and 226 of the Constitution.

Article 32 of the Constitution gives the Supreme Court of India original jurisdiction over problems regarding violation of fundamental rights This article is an extension of the concept of judicial review and echoes the spirit of the system of checks and balances. Judicial overview means that the Judiciary has the power to delegitimize the actions of any authority if it is in contravention with the spirit of the Constitution. This concept of Judicial Overview ensures the Supremacy of the Constitution and emphasizes the significance of Rule of law.

Judicial review is the essential concept of the government system in which the activities of the executive and legislative branches are subject to reassessment and possible revocation by the judiciary.

The concept of Judicial review was first invoked in US judgement Marburg vs Madison[1] , where the court held that any provision in contravention to the constitution shall be declared void to extent of such unconstitutional provisions. In India the notion of Judicial review as held by the landmark USA landmark judgement was duly acknowledged in the case of Emperor vs Burah 2by the Calcutta High Court. The High Court held that the Indian courts possessed

Judicial Review power, subject to specific constraints. While judicial review of administrative action arose from notions of ‘proportionality,' 'legitimate expectation, ‘reasonability,' and natural justice principles, the Supreme Court of India were given the power to rule on the constitutionality of legislative and administrative actions to protect and enforce the fundamental rights guaranteed by the constitution.

The Supreme Court in L. Chandra Kumar v. Union of India[2]held that the Power of Judicial Review as vested in the High courts and the Supreme Court formed a part of the basic structure of the Constitution and hence cannot be violated. The power of Judicial Review emphasized the idea of Supremacy of the Constitution, which is a part of the Basic Structure as established in Keshavanda Bharathi v. State of Kerela[3] , and hence cannot be violated. In this light, the rights granted by Articles 32 and 226 might be seen as a supplementary fundamental right enshrined in the Constitution and forms an integral part in maintaining the essence of a Constitutional Framework.

Article 32 gives the power to the Supreme Court to issue appropriate prerogative writs for the violation of Fundamental Rights. Writs are official documents containing the name of a court or other legal authority to perform certain actions, desist from doing something, These include:


1. Habeas Corpus

2. Mandamus

3. Prohibition

4. Certiorari

5. Quo Warranto

Habeas Corpus

This is writ for securing liberty defined by the maxim Ad subjiciendum. The primary goal of this writ is to secure judicial scrutiny of an accused's wrongful detention on the pretext of fundamental right to liberty and freedom. The court orders the person or authority or state institution who detains/wrongfully confines some individual to present the prisoner's body before the court so that the court can assess the legitimacy, jurisdiction, and rationale for such

captivity. This writ has continually been liberally construed by the courts, making it more encompassing.

The court in Sheela Barse v. State of Maharashtra[4]held that the expanded the scope of the writ and allowed the any other person to move for such a writ if the aggrieved party is not in a position to do so. Nilabati Behera v. State of Orissa6 is another judgement which emphasized the power of judicial review that the supreme court possesses.

The writ can be used not just to prohibit the wrongful arrest of the prisoner, but also to protect him from any mistreatment or cruel behaviour by the restraining authorities, held the court in Sunil Batra v. Delhi Administration.[5]


The writ of mandamus is administered to keep governmental officials within their jurisdiction while performing public obligations. The purpose of mandamus is to prevent chaos caused by a failure of justice, and it is obliged to be provided in all circumstances where there is no special remedy legally established. It must be kept in mind that an individual requesting mandamus must have a legal right to do so, as well as having asked that the obligation be performed and been rejected by the authority.

This writ cannot be issued against a private individual as they are not entrusted with a public duty. The same was held in Barada Kanta v State of West Bengal[6]. As held in Suganmal v. State of M.P9, this writ can only be issued when there is no alternate appropriate remedy under the law.


A writ of prohibition is issued by a Court to restrict lesser courts and other quasi-judicial entities from functioning afield of their purview. It is imposed to direct passivity, as contrasted to Mandamus, which directs activity. This is however a rarely used remedy. Certiorari

A writ of Certiorari is a preventive and curative writ issued to the judicial, quasi-judicial and certain administrative authorities to relocate a dispute pending before a lower court to itself and to overturn the decision of the lower courts in a case. It is issued if there is an imbalance or lack of authorisation, or when there is a legal defect.

The distinction between a writ of certiorari and a writ of prohibition is that they are issued at successive phases of the case's processes. After the matter has been heard and determined, the writ of certiorari is issued. It is given to overturn a lower court's judgement or order when the lower court acted without or beyond its authority. In contrast, a writ of prohibition is issued, banning proceedings in the lower court that acts without or in excess of jurisdiction while the appeal is underway. The High Court in Hari Vishnu Kamath Vs. Ahmad Ishaque[7], laid down certain criteria as to when the writ can be issued. This includes-

1. Correct the errors of Jurisdiction.

2. When court or tribunal acts illegal in its jurisdiction.

3. Order against principles of natural justice.

4. Court acts in exercise of its supervisory and not appellate Jurisdiction.

5. An error in the decision or determination itself may also be amenable to a writ of Certiorari. Quo Warranto

This writ facilitates in maintaining control over the Executive by eliminating unauthorized appointments to public offices, as well as shielding the public from being deprived of public office to which they have a right. Quo Warranto also helps to prevent illegal usurpation of public office by an individual. The court in Jamalpur Arya Samaj Sabha v. Dr D Rama[8] held that it cannot be issued against a private authority.

In addition to these writs filed initiated by the aggrieved party, the courts have expanded the power of Judicial Review under Article 32 to include Public Interest Litigations(PIL’s).

PIL is a legal recourse commenced in a court of law for the enforcement of public interest or general interest in which the masses have a special interest that affects their legal rights. It is not obligatory for the indignant party to approach the court in order to file a PIL; anybody, including the Court, can do so. It is also not required for the Court's jurisdiction to be exercised

if the victim sought the court's assistance directly. The Court must be satisfied that the petition submitted is for public protection, however.

The idea of PIL was expressed by the courts as a part of Judicial Activism to protect the weaker sections of the society and give them a voice to address their issues. In SP Gupta vs. Union Of India[9], the court declared that any member of a public action or group with a good intention may seek redress from the High Court and Supreme Court for a violation of a person's legal or constitutional right who, by virtue of social, economic, or other reasons, cannot approach the court.

From there the Supreme Court has taken a proactive approach while dealing with PIL’s . The judiciary, through PIL, allows a weaker segment or socially backward individuals to acquire justice at a minimal cost, breeding a democratised culture and a judicial revolutionary progress in the framework of social, political, and economic justice, as stated in the basic structure of the Constitution.

It is indeed true that the judicial review guaranteed by the constitution has revolutionized and shaped the evolution of constitutional jurisprudence till date. Dr B.R Ambedkar claimed that Article 32 of the constitution was the heart and the soul of it and if we were to eliminate this article, the basic structure of the constitution will fail. However excessive judicial activism can lead to judicial overreach upsetting the balance of the branches of the constitution. Too liberal interpretation can result in counter-productive consequences and hence due regard should be given to it.

[1] Marburg vs Madison, 5 U.S. 1 Cranch 137 (1803) 2 Emperor vs Burah, (1878) ILR 3 Cal 64. [2] L. Chandra Kumar v. Union of India, AIR 1997 SC 1125. [3] Keshavanda Bharathi v. State of Kerela, AIR 1973 SC 1461. [4] Sheela Barse v. State of Maharashtra ,1983 AIR 378. 6Nilabati Behera v. State of Orissa 1993 AIR 1960. [5] Sunil Batra v. Delhi Administration, 1980 AIR 1579. [6] Barada Kanta v State of West Bengal, AIR 1963 Cal 161. 9 Suganmal v. State of M.P, AIR 1965 SC 1740. [7] Hari Vishnu Kamath Vs. Ahmad Ishaque, 1955 AIR 233. [8] Jamalpur Arya Samaj Sabha v. Dr D Rama, AIR 1954 Pat 297. [9] SP Gupta vs. Union Of India, AIR 1982 SC 149.

This article is written by Vikram Krishnan of Tamil Nadu National Law University.

Recent Posts

See All


Introduction The Constitution of India is a legal document that establishes a federal system of government for the nation as well as lays out specific duties for the federal and state governments. The


Introduction A person is liable for his own wrongful acts and does not incur any liability for the wrongful acts done by others . But, sometimes liability arises vicariously for the torts committed by


Post: Blog2 Post
Anchor 1
bottom of page