CONSTITUTIONAL LAW

In constitutional law practice, we file writ petitions before the High Court under Article 226 & Supreme Court of India under article 32 of the constitution of India to protect fundamental or statutory rights of a person. Fundamental rights in India are enshrined in Part III (Articles 12 to 35) of the Constitution of India. There are six fundamental rights recognised by the Indian constitution

I. Right to equality (Articles. 14-18)

Includes equality before the law, the prohibition of discrimination on grounds of religion, race, caste, gender or place of birth, equality of opportunity in matters of employment, the abolition of untouchability and abolition of titles.

II. Right to Freedom (Articles. 19-22)

Includes freedom of speech and expression, assembly, association or union or cooperatives, movement, residence, and right to practice any profession or occupation, right to privacy, right to life, avoidance of double jeopardy, no self-incriminating evidence etc.

III. Right Against Exploitation (Articles. 23-24)

Prohibits all forms of forced labour, child labour and trafficking of human beings.

IV. Right to Freedom of Religion (Articles. 25-28)

Includes freedom of conscience and free profession, practise, and propagation of religion, freedom to manage religious affairs, freedom from certain taxes and freedom from religious instructions in certain educational institutes.

V. Cultural and Educational Rights (Articles. 29-30)

Preserve the right of any section of citizens to conserve their culture, language or script, and right of minorities to establish and administer educational institutions of their choice.

VI. Right to Constitutional Remedies (Articles. 32-35)

OUR PRACTICE

The Hon’ble High Court and its benches, like all other high courts in India, have the original extraordinary jurisdiction under Article 226 of the Constitution of India. Under this article, the Hon’ble high court has the power to issue a writ to the state in cases of violation of fundamental rights as enshrined in the constitution of India or at places where there is no alternate and efficacious remedy. However, the alternate remedy is not a bar for the high court to entertain a matter in writ jurisdiction. Mr. Faraz Khan and associates practice in this original extraordinary jurisdiction of the Hon’ble High Court by filing writ petitions under Article 226 of the Constitution of India.

WRIT

A writ petition is a petition in a form of plaint present before the High Court in its original extraordinary jurisdiction, thereby challenging the action / inaction of the state by taking grounds of constitutional and statutory violations and prays for issuance of a writ amongst the five writs available under Article 226 of the Constitution of India. At Faraz Khan and associates writ petitions of all five types are filed.

Types of writs

Under its original extraordinary jurisdiction under Article 226 of the Constitution of India five types of writs that can be issued by the Hon’ble Allahabad High Court and its bench at Lucknow.

I. Writ of Certiorari

Issued for quashing an order of the executive on grounds like:

There is no alternative remedy and;
The order violates the fundamental or/ and statutory rights of the petitioner or;
The authority passing the order has no jurisdiction or;
The principal of natural justice were not followed or;
The procedure prescribed in law was not followed.
Examples: An order of following effects and issued by the executive:
Cancelling any licenses or certificate which gave some vested rights to someone.
Imposition of fine on any person.
Stopping a media person from reporting.
Illegal Conducting election
Illegal Sanctioning of maps
Arbitration with state
Taxation computation
Restraining orders
The imposition of NSA on someone
False registration of first information report Etc.

II. Writ of Mandamus

A writ of mandamus is issued against state authority and in exceptional circumstances to private persons as well when they are obliged to take some action as per the statute regulating them but the concerned person is not taking the action as per law.

You have filed some statutory application but the same is not being processed by the officer responsible to decide same.

Certain facilities or requirements under some statute are to be provided but the same is not being followed Etc.

III. Writ of Habeas Corpus

A writ of Habeas Corpus is issued against state authority and in exceptional circumstances to private persons as well, where they are asked to produce some person who has gone missing or in the custody of state without following the procedure of law.

Detention under NSA

Illegal detention

Child custody

IV. Writ of Quo Warranto

The writ of quo warranto requires a person to show by what warrant an office or franchise is held, claimed, or exercised or legal procedure by which an entity is stopped from continuing with a particular course of action, by demanding to know by what authority or right it is holding an office or doing any action.

An officer occupying an official post without being qualified for that as per the statute

V. Writ of Prohibition

A writ of prohibition is a writ directing the executive to stop doing something the law prohibits. The state may take steps to solve a problem but the process followed the same should be legal.

Some important points on Writ Jurisdiction.

High Court under its Writ Jurisdiction can always exercise its jurisdiction under Article 226 of the Constitution of India to see if there was any illegality committed. It has ample powers to take suo motu cognizance of any illegality which might appear from the record. Sources: AIR 1958 All 154 (S. Barrow v. State of U.P. & Another), AIR 1962 SC 1044 (Calcutta Gas Company (Proprietary) Ltd. Vs State of West Bengal & Ors.), AIR 2006 All 23 (P.R. Transport Agency v. Union of India & Ors.), 2004 (55) ALR 807 (Dr. Ravindra Kumar Goel & Ors. v. State of U.P.), AIR 1959 All 695 (City Board, Saharanpur v. Abdul Wahid,) and 2011 (2) ALJ 116

Writ Court cannot oust any petition by saying that the same was not maintainable. However, it is a different matter that the court might choose to interfere or refrain from interfering. Degree of interference would, however, differ from case to case. source: 1999 (1) SCC 741 (U.P. State Cooperative Land Development Bank Ltd. vs. Chandra Bhan Dubey and Others).

The language of Article 226 does not admit of any limitation on the powers of High Court for the exercise of jurisdiction thereunder though by various decisions of this Court with varying and divergent views, it has been held that jurisdiction under Article 226 can be exercised only when a body or authority, the decision of which is complained, was exercising its power in the discharge of public duty and that writ is a public law remedy.

The expansive and extraordinary power of the High Courts under Article 226 is as wide as the amplitude of the language used indicates and so can affect any person – even a private individual – and be available for any (other) purpose – even one for which another remedy may exist.

When any citizen or person is wronged, the High Court will step in to protect him, be that wrong be done by the State, an instrumentality of the State, a company or a cooperative society or association or body of individuals, whether incorporated or not or even an individual. Right that is infringed may be under Part III of the Constitution or any other right which the law validly made might confer upon him. But then the power conferred upon the High Courts under Article 226 of the Constitution is so vast. However, High court has laid down certain guidelines and self-imposed limitations have been put there subject to which High Courts would exercise jurisdiction, but those guidelines cannot be mandatory in all circumstances.

High Court does not interfere when an equally efficacious alternative remedy is available or when there is an established procedure to remedy a wrong or enforce a right. A party may not be allowed to by-pass the normal channel of civil and criminal litigation. The High Court does not act like a proverbial ‘bull in a china shop’ in the exercise of its jurisdiction under Article 226.

The writ court cannot oust any petitioner at the very outset by saying that a writ petition at his or her behest would not be maintainable and cited 1986 (2) SCC 594 (Chaitanya Kumar & Ors. vs. State of Karnataka & Ors). The court cannot close its eye to any illegality and uphold the mischievous acts of any Government executive whatsoever. If at the very first instance it is apparent from the record that a mischievous act was being upheld by the executive by their omission or by their active assistance then nobody should be stopped from coming to the writ court.

Meaning of “aggrieved person” is very broad and in the definition of an “aggrieved person”, a personal harm had not to be essentially given out. A person could be aggrieved by the happenings around him. He can feel aggrieved by the action or omission of the executive which affects him as also his acquaintances. Definitely a person who makes a sweeping allegation of misdeeds or of omissions would not be allowed to approach the writ court but such a person who bonafidely comes across a misdeed which was taking place around him definitely can approach the writ Court.

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Constitutional Law