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CONSTITUTIONAL LAW- I

Article 32 Prohibition.

SUBMITTED TO - PROF. DEVAIAH

SUBMITTED BY - RITIK SHARMA

REGN. NO. – 17040142049

BBA.LLB 3RD SEMESTER

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ACKNOWLEDGEMENT

I would like to express my special thanks of gratitude to my prof. Devaiah N.G who gave me
the golden opportunity to do this wonderful project on the topic Article 32 of The
Constitution of India, Prohibition. Which also helped me in doing a lot of Research and I
came to know so many new things

I am making this project not only for marks but to also increase my knowledge,

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INDEX

Introduction -----------------------------------------------------------------04

Scope of Article 32---------------------------------------------------------05

Prohibition---------------- --------------------------------------------------06

Case Law--------------------------------------------------------------------07

Writs of Prohibition and Certiorari --------------------------------------08

Limitations of Article 32--------------------------------------------------09

Conclusion------------------------------------------------------------------10

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INTRODUCTION

Rights without remedies are meaningless so founding fathers have inserted article 32 by
which an individual can get a remedy by infringement of fundamental right. Article 32 of the
Constitution gives power to the Supreme Court to issue writs in case of breach of
Fundamental rights of any citizen by the state. 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 as follows:-

- Mandamus

- Certiorari

- Prohibition

- Quo warranto

- Habeas corpus

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SCOPE OF ARTICLE 32

Only fundamental rights can be enforced under article 32. Some decisions have pointed out
that since the remedy under article 32(1) is itself the enforcement of fundamental right,
Supreme Court is under duty to grant relief for violation of a substantive fundamental right.
Supreme Court has stated that where relief through High Court is available under article 226,
the party should first approach High Court. The Supreme Court is constituted as guarantor
and protector of fundamental rights, and it cannot refuse to entertain applications seeking
protection against infringement of such rights. Article 32 has been described as the very soul
and heart of Indian Constitution. Jurisdiction conferred on article 32 is an important and
integral part of the basic structure of Constitution of India and no act of Parliament can
abrogate it or take it away except by way of impermissible erosion of fundamental principles
of constitutional scheme. It provides an inexpensive and expeditious remedy. In Ambedkar's
memorable words: 'If I was asked to name any particular Article in the Constitution as the
most important - an Article without which this Constitution would be a nullity- I could not
refer to any other Article except this one. It is the very soul of the Constitution and the very
heart of it'.

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PROHIBITION

Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This
writ is issued when a lower court or a body tries to transgress the limits or powers vested in it.
It is a writ issued by a superior court to lower court or a tribunal forbidding it to perform an
act outside its jurisdiction. After the issue of this writ, proceedings in the lower court come to
a stop.

A writ of prohibition is issued primarily to prevent an inferior court from exceeding its
jurisdiction, or acting contrary to the rule of natural justice, for example, to restrain a Judge
from hearing a case in which he is personally interested.

The term “inferior courts” comprehends special tribunals, commissions, magistrates and
officers who exercise judicial powers, affecting the property or rights of the citizen and act in
a summary way or in a new course different from the common law. It is well established that
the writ lies only against a body exercising public functions of a judicial or quasi- judicial
character and cannot in the nature of things be utilised to restrain legislative powers.

These Writs are issued as “alternative” or “peremptory.” An alternative Writ directs the
recipient to immediately act, or desist, and “Show Cause” why the directive should not be
made permanent. A peremptory Writ directs the recipient to immediately act, or desist, and
“return” the Writ, with certification of its compliance, within a certain time.

The writ can be issued only when the proceedings are pending in a court if the proceeding has
matured into decision, writ will not lie.

It means ‘to forbid’. This is issued by SC or HC to an inferior court or tribunal to prevent


latter from exceeding its jurisdiction with which it is not legally vested. Prohibition can be
used only against judicial or quasi-judicial body.

Prohibition under Article 32 directs inactivity unlike Mandamus that directs activity.
Prohibition is not available against administrative authorities, legislative bodies or private
bodies

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Syed Yakoob versus K. S. Radhakrishnan (AIR 1964 SC 477)

JUDGEMENT

- (1.) The short question which this appeal raises for our decision relates to the limits of the
jurisdiction of the High Court in issuing a writ of certiorari while dealing with orders passed
by the appropriate authorities granting or refusing to grant permits under the provisions of the
Motor Vehicles Act, 1939 (hereinafter called 'the Act').

(2.) The State Transport Authority, Madras, (hereinafter referred to as Authority) issued a
notification on July 4, 1956 under S. 57(2) of the Act calling for applications for the grant of
two stage carriage permits to run as an express service on the route Madras to Chidambaram.
107 applications were received in response to the said notification: some of these were
rejected as time barred or otherwise defective, and the others which were in order were
examined by the Authority.

(3.) On May, 8, 1957, the Authority found that Provincial Transport (Private) Ltd., Madras,
was the most suitable amongst the applicants and granted one permit to it. As regards the
second permit, the authority held that none of the other applicants was suitable, and so, it
refused to grant the said permit to anyone of them; it decided to call for applications afresh
under S. 57(2) of the Act;

In Syed Yakoob v. K.S.Radhakrishnan the writ of prohibition or certiorari can be issued on


the following grounds:

-When the body concerned proceeds to act without, or in excess of jurisdiction, or

-fails to exercise its jurisdiction or

-There is an error of law apparent on the face of the record in the impugned decision of the
body or

-the findings of fact reached by the inferior court are based on no evidence or

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-it proceeds to act against principles of natural justice or

-it proceeds to act under a law which is itself invalid, ultra vires or unconstitutional.

Writs of Prohibition and Certiorari

The writ of prohibition is issued by any High Court or the Supreme Court to any inferior
court, prohibiting the latter to continue proceedings in a particular case, where it has no legal
jurisdiction of trial. While the writ of mandamus commands doing of particular thing, the writ
of prohibition is essentially addressed to a subordinate court commanding inactivity. Writ of
prohibition is, thus, not available against a public officer not vested with judicial or quasi-
judicial powers. The Supreme Court can issue this writ only where a fundamental right is
affected.

The writ of certiorari can be issued by the Supreme Court or any High Court for quashing the
order already passed by an inferior court. In other words, while the prohibition is available at
the earlier stage, certiorari is available on similar grounds at a later stage. It can also be said
that the writ of prohibition is available during the tendency of proceedings before a sub-
ordinate court, certiorari can be resorted to only after the order or decision has been
announced. There are several conditions necessary for the issue of writ of certiorari, which
are as under:

(a) There should be court, tribunal or an officer having legal authority to determine the
question of deciding fundamental rights with a duty to act judicially.

(b) Such a court, tribunal or officer must have passed an order acting without jurisdiction or
in excess of the judicial authority vested by law in such court, tribunal or law. The order
could also be against the principle of natural justice or it could contain an error of judgment
in appreciating the facts of the case.

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LIMITATIONS TO ARTICLE 32

There are certain circumstances during which the citizens do not get the privileges which they
ought to under Article 32. Therefore, the situations when the fundamental rights may be
denied to the citizens but the constitutional remedies will not be available i.e. Article 32 will
not be applicable are:

• Under Article 33, the Parliament is empowered to make changes in the application of
Fundamental Rights to armed forces and the police are empowered with the duty to ensure
proper discharge of their duties.

• During the operation of Martial law in any area, any person may be indemnified by
the Parliament, if such person is in service of the state or central government for the acts of
maintenance or restoration of law and order under Article 34.

• Under Article 352 of the Constitution when an emergency is proclaimed, the


guaranteed Fundamental Rights of the citizens remains suspended. Also, Fundamental Rights
guaranteed under Article 19 is restricted by the Parliament under Article 358 during the
pendency of an emergency.

• Article 359 confers the power to the President to suspend Article 32 of the
Constitution. The order is to be submitted to the Parliament and the Parliament may
disapprove President’s order.

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CONCLUSION

The constitutional remedies provided to the citizens are the powerful orders with immediate
effect. And the writs are mostly invoked against the state and are issued when PILs are filed.
The Writ Jurisdictions which are conferred by the Constitution though have prerogative
powers and are discretionary in nature and yet they are unbounded in its limits. The
discretion, however, is exercised on legal principles. Therefore, the first essential on which
the constitutional system is based in the absence of arbitrary power. Hence, the decision must
be taken on the basis of sound principles and rules and should not be based on whims, fancies
or humour. And if a decision is not backed by any principles or rules, then such a decision is
considered arbitrary and is taken not in accordance with the rule of law.

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BIBLIOGRAPHY

1) www.jstor.org
2) www.indiankanoon.in
3) www.leadthecompetition.in

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THANK YOU

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