ACKNOWLEDGEMENT

It is not possible to prepare a project report without the assistance and encouragement of other
people. This is certainly an exception. On the very outset of this project I would like to extend
our sincere and heartfelt obligation towards all the personages who have helped me in this
endeavor. Without their active guidance, help cooperation and encouragement, we would not
have made headway in the project. I am ineffably thankful to xxxxxxx for conscientious
guidance and encouragement to accomplish this assignment. I extend my gratitude to PIMR
DEPARTEMENT OF LAW for giving me this opportunity. I also acknowledge with a deep
sense of reverence, my gratitude towards my friends and members of my family who have
always supported us morally as well as economically.
Thanking You
xxxxx

LL.B (SEM II)

Emergency Provisions in the Constitution of India

1.0 Introduction

The Emergency provisions are contained in Part XVIII of the Constitution, from Articles 352 to
360. These provisions enable the Central government to meet any abnormal situation effectively.
The rationality behind the incorporation of these provisions in the Constitution is to safeguard
the sovereignty, unity, integrity and security of the country, the democratic political system, and
the Constitution.

During an Emergency, the Central government becomes all powerful and the states go into the
total control of the Centre. It converts the federal structure into a unitary one without a formal
amendment of the Constitution. This kind of transformation of the political system from federal
during normal times to unitary during Emergency is a unique feature of the Indian Constitution.
In this context, Dr B. R. Ambedkar observed in the Constituent Assembly that1:

‘All federal systems including American are placed in a tight mould of federalism. No matter
what the circumstances, it cannot change its form and shape. It can never be unitary. On the other
hand, the Constitution of India can be both unitary as well as federal according to the
requirements of time and circumstances. In normal times, it is framed to work as a federal
system. But in times of Emergency, it is so designed as to make it work as though it was a
unitary system.’1

Three Types of Emergency under the Indian Constitution

Dictionary defines emergency “as a failure of social system to deliver reasonable conditions of
life”. The term emergency may be defined as “circumstances arising suddenly
that calls for immediate action by the public authorities under the powers especially granted
to them”. Dr. B.R Ambedkar claimed that the Indian Federation was unique as during the
times of emergency it could convert itself into an entirely unitary system. In India, the

1
Wikipedia
emergency provisions are such that the constitution itself enables the federal government
acquire the strength of unitary government whenever the situation demands. During such
urgent needs all the pacific methods should be exhausted and emergency should also be the
last weapon to use as it affects India’s federal feature of government.
There are three types of emergencies under the Indian Constitution namely-
· National Emergency
· Failure of constitutional machinery in states
· Financial Emergency

NATIONAL EMERGENCY
Article 352 deals with the National Emergency. An emergency arising from the threat to the
Security of the country is called National Emergency. A national emergency can be
proclaimed by the President of India either
(i) by war or external aggression or
(ii) By armed rebellion within the country.4
Under Article 352(1), if the President is satisfied that a grave emergency exists
Whereby the security of India or any part thereof is threatened, whether by war, or external
Aggression, or armed rebellion, he may, by proclamation, make a declaration to that effect.
Such a proclamation may be made in respect of the whole of India, or such part of the Indian
Territory as may be specified in the proclamation. Article 352(1) thus means that the
proclamation need not extend to the whole of India. It may be restricted to a part of the Indian
Territory. A proclamation of emergency under Article 352(1) may be made before the actual
occurrence of war, external aggression or armed rebellion. As Supreme Court explained in
the case of Naga People’s Movement of Human Rights v. Union of India ,that the expression
“internal disturbance “has a wider connotation than ‘armed rebellion’ in the sense that
“armed rebellion” is likely to pose a threat to the security of the country, or a part thereof,
while “internal disturbance”, though serious in nature, would not pose a threat to the security
of the country, or a part thereof.5

STATE EMERGENCY
Article 356 and Article 357 provide for meeting a situation arising from the failure of the
Constitutional machinery in a State.6It is the duty of the Union Government to ensure that
governance of a State is carried on in accordance with the provisions of the Constitution.
Under Article 356, the President may issue a proclamation to impose emergency in a state if
he is satisfied on receipt of a report from the Governor of the State, or otherwise, that a
situation has arisen under which the Government of the State cannot be carried on smoothly.
In such a situation, proclamation of emergency by the President is called ‘proclamation on
account of the failure2 (or breakdown) of constitutional machinery.’ In popular language it is
called the President’s Rule. Like National Emergency, such a proclamation must also be
placed before both the Houses of Parliament for approval. In this case approval must be given
within two months; otherwise the proclamation ceases to operate. If approved by the
Parliament, the proclamation remains valid for six months at a time. It can be extended for
another six months but not beyond one year. (Proviso to Article 356(4)). However,
emergency in a State can be extended beyond one year if (a) a National Emergency is already
in operation; or if (b) the Election Commission certifies that the election to the State
Assembly cannot be held. The declaration of emergency due to the breakdown of
Constitutional machinery in a State has the following effects:
(i) The President can assume to himself all or any of the functions of the State
(ii) Government or he may vest all or any of those functions with the Governor or any
other executive authority.
(iii) The President may dissolve the State Legislative Assembly or put it under
suspension.
(iv) He may authorise the Parliament to make laws on behalf of the State Legislature.
(v) The President can make any other incidental or consequential provision necessary
To give effect to the object of proclamation.
Case laws:
State of Rajasthan v. India8
A constitutional controversy of great significance in Article 356 was raised in this case.
When the general election for Lok Sabha were held in the country in 1977, after the
lifting of the emergency of 1975, the Congress Party was badly routed in several states by

2
Indian Constitutional Law-Prof. M.P.Jain, LexisNexis -Sixth Ed., p 762 , para 7
the Janata Party which won a large number of seats in the Lok Sabha and thus, formed the
government at the Centre. In these states, congress ministries were functioning at the time
and they still had some more time to run out for completion of the full term. There have
been many cases of misuse of ‘constitutional breakdown’. For example, in 1977 when
Janata Party came into power at the Centre, the Congress Party was almost wiped out in
North Indian States. On this excuse, Desai Government at the Centre dismissed nine State
governments where Congress was still in power. This action of Morarji Desai’s Janata
Government was strongly criticized by the Congress and
Others. The suit was designed to foretell the invocation of Article 356 in the several
States. The Supreme Court however, dismissed the suit unanimously. The board position
adopted by the Court was that it could not interfere with the Centre’s exercise of power

FINANCIAL EMERGENCY

The Financial Emergency provided under Article 360. It provides that if the President is
satisfied that the financial stability or credit of India or any of its part is in danger, he may
declare a state of Financial Emergency. Like the other two types of emergencies, it has also to
be approved by the Parliament. It must be approved by both Houses of Parliament within two
months. Financial Emergency can operate as long as the situation demands and may be
revoked by a subsequent proclamation. So far, fortunately, financial emergency has never
been proclaimed the proclamation of Financial Emergency may have the following
consequences3

1.1 Misuse OF POWER:

Introduction
It is clear that the power extended to the Union Parliament in the Proclamation of Emergency
must be used in rarest of the rare cases. However it is not so, the power given to the President
to be used in extraordinary circumstances is widely used for political benefits of individuals
rather than public interest. This abuse of power can easily lead to sedition of the Indian

3
http://en.wikisource.org/wiki/Constitution_of_India/Part_V
democracy. In a number of cases the power was distorted with political considerations,
sometimes there is also self-interest of the individual that lie behind the decisions taken
during manoeuvre of Emergency. The 44th amendment ensured that internal disturbance
would no longer be ground for Proclamation of Emergency, where it lead to the worst abuse
of Emergency power at National level in 1975 and continued till 1977. The power under
Article 356 has been used frequently in India since 1950, especially in states like Uttar
Pradesh, Kerala and Punjab. At one instance this President’s Rule was imposed purely on
political grounds to overthrow the ministry formed by a different party. By the 42nd
amendment in 1976, it was exemplified as it affected almost sixty clauses of the constitution.
Therefore there is demand for either deletion or making provisions to restrict misuse of these
provisions.
"Real Swaraj will come not by acquisition of authority by a few but by the acquisition
of the capacity by all to resist authority when it is abused.'
- M. K. Gandhi
Generally there are two sets of circumstances- normal and abnormal i.e. Emergency, under
which constitutions have to function. There might be some antisocial element internal or
external which can disturb the normal social order and constitutional life. For every nation to
have emergency provisions i.e. extra ordinary powers is essential to protect itself. The trend
is that laws of the land remain silent or inactive during emergency period and the normal
functioning of nation is suspended. Different new laws and control systems comes into
action. To provide for emergency in the constitution in order to meet the situation is essential
and justified too. But there is all chances that while using excessive powers, administration
may cross its limits and abuse and encroach upon the liberty of citizens and violate human
rights. During such situation the philosophy behind the declaration of emergency that it is for
the purpose of protecting its citizens from crisis, proves wrong and the civil liberty of its
citizens gets affected to the worst of its degree. H.M. Seervai 10 has observed: - "The common
men and women of India - III fed, ill clothed and ill looked after, opted for freedom, freedom
from harsh, tyrannical and oppressive laws and from equally oppressive executive action."
The question arises as to who should be held responsible and liable for abuse and how. How
and why the powers that are to protect the nation are abused? What generally happens during
emergency and how the normal constitution fabric and functioning of the government of
normal times gets changed? An analysis of that would help to determine the areas where
actually the extra ordinary powers of emergency are liable to be abused. Though it is difficult
to establish clear cause and relationship between state of emergency and abuse of power
resulting in violation of human rights.
1.2 Concept of misuse
The term ‘ abuse of power ‘ includes everything, which the term ‘unreasonable exercise of
power’ includes. Abuse or use of power depends on the assessment of extent of use of these
powers. Whether or not there was any limit prescribed or instructed any were in relevant
Acts. Abuse of power is also described as ‘wrong motive’ or mala fide. When the power is
used other than for what it has been intended under enabling statute, it will be considered as
abuse of power. ‘Improper considerations’ ‘Failure to take all considerations in to account’,
‘acted unreasonably’ and ‘colourable exercise of power’ are some of the terms that express
abuse of power.
In R. D. Shetty vs. International Airport Authority 11 Justice P. N. Bhagwati, who delivered
the judgment of the court, held: Exercise of discretion is an inseparable part of sound
10 Seervai H.M., The Emergency Future Safe Guards And Habeas Corpus- A Criticism
11 AIR 1979 SC 1628 SCC 489
7|Page
administration and therefore, the State which is itself a creature of the Constitution, cannot
shed its limitation at any time in any sphere of State activity? It is a well settled rule of
administrative law that an executive authority must be rigorously held to the standards by
which it professes its actions to be judged and it must scrupulously observe those standards of
invalidation of an act in violation of them. It is indeed unthinkable that in a democracy
governed by the rule of law the executive government or any of its officers should possess
arbitrary powers over the interests of an individual. Every action of the executive government
must be informed with reason and should be free from arbitrariness. That is the very essence
of the rule of law and its bare minimal requirement. It establishes that the exercise of
discretion must not be arbitrary, fanciful and influenced by extraneous considerations. In
matter of discretion the choice must be dictated by public interest and must not be
unprincipled or unreasoned. It must be governed by policy, standards, procedural safeguards
or guidelines, failing which it will amount to abuse and shall be quashed by the courts.
1.3 COMMON CHARACTERISTICS OF EMERGENCY
There are some specific changes that take place during emergency which reflect the actual
political arrangement of power. During emergency all other mechanism of government are
shut down and all powers judicial as well as legislative is concentrated in executive, For
purpose of security, power of arrest and detention becomes necessary. Even on slight
suspicion a person is detained, Special courts are formed to deal with political matters. New
Acts are promulgated and stringent actions are prescribed under new Acts especially made to
deal with offences of special nature. Constitutional guarantees are suspended including
personal liberty. Courts powers are substantially curtailed. Power to issue writs like Habeas
Corpus and Ampro are suspended. Freedoms are restricted. The administration e.g. security
force and police enjoy immunity from the use of excessive power. During normal
constitutional order three main functionaries control the nation. The executive, the legislature
and the judiciary. During emergency the judiciary is eliminated, legislative power comes in
the hands of executive and thus parliament alone remains alive with all the function under its
jurisdiction. The emergency enlarges the power of the centre over States and of the executive
over individual liberty. What is remarkable under Indian constitution is that Article 50, 53, 74
And 75 of the constitution are not affected by the emergency. These articles explain the
powers of President working and his relation with council of ministers. That means if the
President works on the advice of his council of minister in normal times, in the emergency
also he works in similar way. Emergency does not make the President more or less powerful
than in the normal times. Alladi as member has said in the debate of Constitutional Assembly
' the President throughout the constitution means always the President advised by the council
of minister12 This proves that constitutional provisions to some extent are justified and as we
have already discussed in previous chapters there are some checks also. The basic problem is
administration, using administrative resources to save the country and at the same time being
dangerous themselves to their countrymen. To be protected from the protector it is the biggest
problem before the citizens.
1.4.1 Presidential power to issue proclamation of emergency
The emergencies that were called upon in 1962 and 1971, the 'satisfaction' of President was
not questioned as the security of nation was endangered and there was sufficient justification
to the announcement of emergency by the President. But the third emergency the most
controversial one from different points of view has shocked the country. 'Internal disturbance'
as the basis of Presidents satisfaction was not accepted as justified criteria for emergency by
the legal world. This emergency has opened the eyes of all those who have ruled out any
misuse of the emergency powers in future. What the members of constituent assembly
cautioned had come to be true before the country. What happened actually is not unknown
At this point it is important to find out the agencies that administers the emergency
provisions.
First comes the President. He must be "satisfied" and declare so; and then only there is an
Emergency. The President is a single individual and he might misjudge; or he might abuse his
position and deliberately misuse the provisions. This was discussed in the Constituent
Assembly. Members expressed apprehension; but, by and large, the founding Fathers were
satisfied that the chances were not many. First, as Alladi said, the President always means the
Cabinet; singly he cannot do anything. Anyhow, as a precaution, Kamath wanted that Art.
352 should be amended to say categorically that the President "acting upon the advice of the
Councils of Ministers" could proclaim the Emergency. But this could only be a paper
safeguard, because nothing prevents such a determined President, if he wants to abuse the
power, from dismissing unwilling ministers and appointing men of his own choice before the
declaration.
According to the Fathers, the normal built-in check available against the President, viz., "aid
and advice" of the Cabinet, would do. Theoretically, they were correct. Issue of massive
abuse of power was since then been the important subject before the judiciary. Thus a narrow
view of the scope of judicial review over "acting reasonably" was taken. The Supreme Court
in Minerva Mills V. Union of India examined the justification or the validity of the
proclamation of emergency.13J. Bhagwati observed - merely because a question has a
political complexion that by itself, is no ground why the court shrink from performing its
duty under the constitution, if it raises an issue of constitutional determination. It would not
therefore be right for the court to decline to examine whether in a given case there is any
constitutional violation involved in the Presidents issuing the proclamation of emergency'
He further observed: “The court cannot go into the question of correctness or adequacy of the
facts and circumstances on which the satisfaction of the Central Government is based. The
satisfaction of the President is a condition precedent to the exercise of the power under
Article 352 (1), and if it can be shown that there is no satisfaction of the President at all, the
exercise of power would be constitutionally invalid, where, therefore the satisfaction is
absurd or perverse or mala fide at all, it would be liable to be challenged before the court.
Where...the satisfaction is absurd or perverse or malafide or based on a wholly extraneous
and irrelevant ground, it would be no satisfaction at all and would be liable to be challenged
before a court."
This remarkable judgment set certain rules:
1) Proclamation of Emergency is not immune from judicial scrutiny.
2) The court however cannot substitute its own satisfaction for that of the President.
3) So long as the proclamation is not revoked by another proclamation it would continue to
operate irrespective of the change of circumstances.
4) The court has no power to interfere with the satisfaction of the executive government in
regards to its continuation unless it is clear on the material on record that there is absolutely
no justification.
5) The court may if satisfied beyond doubt grant a writ of mandamus directing the
government to revoke the proclamation of emergency. It was held in Lakhanpal vs. Union of
India14 it is not necessary for the President to recite in the proclamation the fact of his
satisfaction about the emergency. The Supreme Court has thus overruled its earlier decision
held in Ghulum Sarwar vs. Union of India 15that the question of existence of an emergency
has been left to the subjective satisfaction of the President and is not justifiable by the courts
thus being powerless to review that satisfaction. Second comes 'council of ministers' liable to
abuse the power, where the possibility is very high. During third emergency the procedural
legality of the declaration of emergency was questioned. In case of situation when the ruling
party is in majority, as it was the case in 1975, the possibility of procedural abuse becomes
very obvious. It may abuse this power for party interests. The Fathers thought that the
provision of collective responsibility would solve the problem, responsibility is
responsibility, they thought. The Constitution really contains a built-in check in the form of
the office of President. After all, he is the guardian of the Constitution and he is vested with
some powers, and nothing can happen without his "satisfaction"; and if he has sufficient
reason to suspect foul-play on the part of his Cabinet, he could as well refuse the declaration.
They also thought that the President could declare the Emergency and it would be in duration
for two months even without the approval of the Parliament, and much mischief could be
possible meanwhile; and once the approval was given, there was nothing the Parliament
could do, they thought. The important point is that Parliament is always there; it can always
take action. But can the Parliament be relied? Ordinarily, Parliament's approval comes easily,
both for the first ratification and for later renewal. Thus, if all the three- President, Cabinet
and Parliament agree, it cannot be checked at all. There can be no protection against the
protector.
Another way the abuse may come is when the President wants to bypass his Ministers having
a majority in the House of the People-and this is a greater possibility when the President and
the majority in the council of States belong to one party and the Ministers and the majority in
the House belong to another. The President may dismiss his Ministry, dissolve the House,
appoint another Ministry, get approval from the Council of States and reign supreme with
Ordinances either without election or without caring to call the House. At this point it will not
be irrelevant to discuss and understand the concept of royal Prerogative under English law..
The English law provides for the Royal Prerogative this is the power that vests in crown,
which is absolute and is not regulated or depends on statute. There are some powers vested in
crown which can be exercised only and on the advice of minister such as treaties with other
country, mercy power, conferment of honours, the government of dependent colonies,
management of Armed Forces, declaration of war and peace and the waging of war, which
can be effected by the prerogatives without recourse to parliament legislation. It has always
been assumed that the courts will be zealous to define and delimit the extent of the Royal
Prerogative, but that is no concern of the courts to control the manner in which the
Prerogative is exercised within those limits. To some extent Indian law accepted the same
trend regarding powers of the President.
1.4.2. Law making authority of the executive during emergency
During emergency under Article 353, 358 the legislative power of the State stands widened
and the State gets empowered to impose restrictions on the enjoyment of Article 19 and the
restrictions imposed by the executive are considered valid. The State becomes competent to
impose restrictions on any ground whether or not mentioned in the relevant clauses of Article
19. Such restrictions would be valid even if they are unreasonable. Prior to independence, the
judiciary tried to protect the people against executive excess only to some extent. In Talpade's
case16 Rule 26 made under the Defence of India Act was declared void as beyond the rule
making power. This decision was of great help to the cause of civil liberty in India but the
spirit of the decision and the observations of the court were entirely ignored by the executive
in India. Before 1976 suspension of Article 19 under Article 358 extended to the whole of
India whereas the order of President under Article 359(1) may extend to the whole of India or
any part thereof. But this distinction was not valid under the 42nd Amendment Act, 1976. All
these amendments gave unrestricted powers in the hand of executive, who in turn extensively
abused them in passing many laws in different parts of India, in order to provide security.
The 44th amendment Act has introduced stricter safeguards in emergency provisions.
1.4.3. Suspension of basic rights
During the period the order of the President under Art. 359 is in operation, the State would be
free to make any law or take any action in violation of the rights mentioned therein. Before
the constitution (38th Amendment) Act, 1975 only the remedy of moving any court for the
enforcement of the fundamental rights mentioned in the Presidential order was suspended but
not the rights themselves. The amendment added new 200 Clause (4) in Art. 359, affecting
that not only the remedy but the rights themselves are suspended.
Right to Life and personal Liberty
The attitude regarding the effect of emergency on the right to life and personal liberty,
changed with the 44th amendment, 1978, because this amendment has now provided in Art.
359 that the Presidential order under Article. 359 shall not suspend the enforcement of Arts
20 and 21. Previously there was no such restriction and Presidential order included
suspension of
Article 20 and 21.
Art 21 guarantees the most important and most fundamental of the fundamental rights i.e., the
right to life and personal liberty without which all other rights are meaningless. No person
can be deprived of his life or personal liberty except according to procedure established by
law which must be just, fair and reasonable. “When we come across orders of this kind by
which citizens are deprived of the fundamental right of liberty without a trial on the ground
that emergency proclaimed by the President in 1962 still continues and the powers conferred
on the appropriate authority by the Defence of India Rules justify the deprivation of such
liberty, We feel rudely disturbed by the thought that the rules by the several authorities is
likely to make the paramount requirement of the Constitution that even during an emergency
the freedom of the Indian citizen cannot be taken away without the existence of justifying
necessity specified by the Rules themselves. The tendency to treat these matters in a
somewhat casual and cavalier manner which conceivably results from the continuous use of
such unfettered powers may ultimately pose a serious threat to basic values on which the
domestic way of life in this country is founded."18
A question however arises as to whether any law, containing such a recital or any executive
action taken thereunder can be challenged for being violated of the fundamental rights under
Article 359 (1) In Keshavaananda Bharti19, the Supreme Court invalidated second part of
newly added Article 31C, holding that this is to give effect to the policy of the state to
implement directive principles under Article 39(b) or (c). It shall not be questioned before
any court on the ground that it does not give effect to any of these directive principles. On the
analogy of this case, it is submitted that a law containing such a recital or any action
thereunder would be subject to the scrutiny of the court. The Human Right Committee under
ICCPR has expressed particular concern that some of the special security legislation
derogated even from the non-derogable rights contained in the covenant. They have
mentioned Armed Forces Act, National Security Act, TADA etc. as a prominent example in
this category20.The committee has also shown its displeasure over its examination of India's
Third Periodic Report. It said that - India has to face difficulty in dealing with terrorism, it
was nevertheless incumbent on a State party to tackle such problems in a manner consistent
with the covenant's requirements. The existing practice led to defacto declaration of
emergency.
The misuse of the Emergency powers by the Administration
It is because of the abuse by the administration that even an otherwise law-abiding and
patriotic citizen is made to suffer with the Emergency-and also with the most clumsily
worded Art. 359, which allows him some fundamental Rights and yet denies him their
enforcement. Administrative harassment of the citizen is an everyday affair in India, and
Emergency makes it worse. The emergency saw many injustices compounded by harsh
treatments, torture of large number of persons by the police. Censorship and other restrictions
on freedom of speech and expression was the prime causality of emergency. Restriction on
freedom of assembly and association was also attacked during the emergency. Ordering
transfers arbitrarily also harassed judiciary.
The Shah Commission has submitted an intensive Report on the atrocities by administration
on the common man.22
Prolongation of emergency
There is another way the abuse that might come, the one we have already experienced in our
country, where the Proclamation is prolonged beyond reasonable period. In this case, at the
time of Proclamation, the President, the Cabinet and (ordinary) majority of the House are
together, the party is unable to do anything against its own leaders in the Cabinet.
This is a serious kind of abuse, but one of its own kind where the original Proclamation was
justified but not its continued duration. The majority in the House is hands in glove with the
executive.
Analysis
The survey of the state of human rights is that, not only have rights suffered quite severe
curtailment by legislative changes that has been brought about at both federal and state levels,
but also that there has been a clearly identifiable pattern of serious, systematic and
widespread abuse of rights which are attributable to the state for which the state can be held
responsible. Indian judiciary has produced a strong tradition of landmark decisions over an
important issue of abuse of emergency powers by the executive. In the later period we notice
that specially after the habeas corpus case the judiciary took revolutionary attitude and gave
more emphasis to the justifiability of every executive action during emergency.

EXISTING REMEDIES AND PREVENTION OF ABUSE

The right without remedy is of no value. Indian constitution guarantees remedies to

individual affected by administrative agencies in the form of Article 32,136,226 and 227. The
whole law of judicial review of administrative action has been developed by judges and
consequently suffers from certain inconsistencies. Judicial review of administrative action
under Indian Constitution is not only an integral part but also forms basic structure of the
constitution.24
Under Article 32(1) Supreme Court guarantees the right to move the court for the
enforcement of fundamental rights. Under Article 32(2) Supreme Court is empowered to
issue directions, orders or writs for the enforcement of these rights. Courts in India have
expanded the scope of their extraordinary jurisdiction under Arts 32 and 226 of the
Constitution to compel the government to do what it is legally bound to do. What comprises
government's duty has been inferred from a liberal interpretation of Art21 of the Constitution.
Such assumption of jurisdiction has doubtlessly empowered the citizen against the executive
as well as the legislatures. Not only this the Supreme Court has not confined itself to judgemade
law in the traditional sense of the term, but has embarked upon legislation to fill in the
gaps left by legislatures through a device called 'directions.'
Article 32 and 226
The Supreme Court and the High Courts have power to issue writs in the nature of
mandamus, certiorari, prohibition, etc., under Arts. 32 and 226 respectively.
Habeas corpus
Though the traditional function of the writ of habeas corpus has been to get the release of a
person unlawfully detained or arrested, the Supreme Court has widened its scope by giving
relief through the writ against inhuman and cruel treatment meted out to prisoners in jail.25 In
Sunil Batra the court stated that the dynamic role of judicial remedies... imparts to the habeas
corpus writ a versatile vitality and operational utility that makes the healing presence of the
law live up to its reputation as bastion of liberty even within the secrecy of the hidden cell.
The court has thus permitted the use of the writ for protecting personal liberties to which the
arrested persons or prisoners are entitled to, under the law and the Constitutions.
Because of the prevalence of preventive detention, many petitions for habeas corpus
frequently come before the courts. As personal liberty of an individual is a cherished value,
the court has consistently shown great anxiety.
It provides a speedy and effective remedy to a person under unlawful detention. The most
important feature of the writ is its peremptoriness.
Quo warratno
The term quo warranto means- what is your authority. The writ of quo warranto is used to
judicially control executive action in the matter of making appointments to public offices
under relevant statutory provisions. The writ is also used to protect a citizen from the holder
of a public office to which he has no rights.
Mandamus
Mandamus is a command issued by a court to an authority directing it to perform a public
duty imposed upon it by law.
Certiorari and prohibition
These writs are designed to prevent the excess of power by public authorities. These writs can
now be issued to anybody, irrespective of the nature of the function discharged by it, if any of
the grounds on which the writs are issued is present. Certiorari and prohibition are now
regarded as general remedies for the judicial control of both quasi-judicial and administrative
decisions, affecting rights of individual.