theoryofabrogation

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Is Mark-Sheet a valuable security?

Shriniwas Pandit Dharmadhikari vs. State of Maharashtra, 1980 SC Facts: The appellant, Shriniwas Pandit Dharmadhikari, was convicted of offences under Sections 417, 420 read with Section 511, and 471 read with Section 467 of the Indian Penal Code (IPC). He was sentenced to various terms of imprisonment and fined for forging certificates to gain admission to an Arts and Commerce College affiliated with Poona University. Reasoning: The Supreme Court of India found that the forged certificates did not qualify as “valuable security” under Section 30 of the IPC.  Conclusion This landmark case by the Supreme Court established the precedent that a mark-sheet, while important, doesn’t fall under the definition of a valuable security as defined in Section 30 of the IPC. This means that forging a mark-sheet wouldn’t be punishable under Section 467, which deals with forging valuable securities. Therefore, the conviction under Section 471 read with Section 467 was altered to one under Section 471 read with Section 465 of the IPC.

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Ratio decidendi and Obiter dicta

Ratio decidendi and Obiter dicta Ratio decidendi Ratio decidendi is a Latin term that means “the reason for the decision.” It refers to the legal principle or rule that is the basis for a court’s decision in a case. This principle is what future courts will follow when deciding similar cases. These are binding on future cases. Ratio Decidendi Example The ratio decidendi of the Kesavananda Bharati v State of Kerala 1973 SC case is the establishment of the basic structure doctrine. The Supreme Court held that while the Parliament has wide powers to amend the Constitution under Article 368, it does not have the power to alter or destroy the basic structure or framework of the Constitution. This principle is binding and has been followed in numerous subsequent cases. For example in Indira Nehru Gandhi v. Raj Narain, 1975 SC Context: This case challenged the election of Prime Minister Indira Gandhi. Application: The Supreme Court applied the basic structure doctrine to strike down the 39th Amendment, which sought to place the election of the Prime Minister beyond judicial review. The court held that judicial review is part of the basic structure of the Constitution. Obiter dicta Obiter dicta is a Latin term that means “things said by the way.” In simple terms, it refers to comments or observations made by a judge in a court’s decision that are not essential to the outcome of the case. These remarks are not binding in future cases but can be persuasive. Obiter Dicta Example In Kesavananda Bharati v State of Kerala 1973 SC judges observed that while the Constitution must be flexible to adapt to changing times, this flexibility should not extend to altering its basic structure. They emphasized the need for a balance between allowing amendments and preserving the core principles of the Constitution. Besides this court also discussed about the concept of secularism, and discussed about preamble, fundamental rights in this case. Judges also commented on the role of the judiciary in safeguarding the Constitution. These discussions and observations of the court was not essential for the outcome of the case, hence it was an obiter dicta.    

Indian Constitution, Interview, judiciary, Law, Legal

Decoding Valuable Security: The Case of a Fraudulent Marksheet

Why in News? The Madhya Pradesh High Court recently ruled that a marksheet cannot be classified as a “valuable security” under Section 467 of the Indian Penal Code (IPC). The petitioner’s brother allegedly used the petitioner’s marksheet to secure a government job, leading to an FIR and charges under Sections 467, 468, 471, and 120-B IPC. The petitioner contested these charges, arguing that a marksheet does not qualify as a valuable security. Justice Sujoy Paul, relying on previous judgments, quashed the charges and remitted the case back to the trial court to reconsider potential other charges. What is “Valuable Security” under Section 30 IPC? Definition: Section 30 of the IPC defines valuable security as a document that creates, acknowledges, or extinguishes a legal right, obligation, or liability. Purpose: The purpose of classifying a document as valuable security is to penalize those who forge documents that affect legal rights or obligations. Forging such a document can attract severe penalties under Section 467 IPC. Key Considerations for “Valuable Security” Legal Impact: The document must alter, create, or extinguish legal rights or obligations. A marksheet only reflects educational qualifications and does not have any direct legal effect on rights or liabilities. Application of Section 467 IPC: Section 467 penalizes forgery of valuable securities. For a document to fall under this section, it must meet the criteria under Section 30 by having a legal bearing on rights or obligations. Court’s Rationale: The court found that a marksheet does not meet the definition of valuable security because it does not affect legal rights. Previous case law, including the Shriniwas Pandit Dharmadhikari vs. State of Maharashtra (1980), confirms that educational certificates or marksheets do not qualify as valuable security. Essentials to Establish Valuable Security: Prima Facie Case: The document must have the potential to influence legal standing or obligations. Intent to Defraud: The intent behind forging the document must be to alter or create legal obligations for personal gain. Legal Consequences: If the document has no legal implications, it cannot be classified as valuable security under Section 30 IPC.

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Ad-Interim Injunctions

Why in News? A division bench of Justice Pushpendra Singh Bhati and Justice Munnuri Laxman of the Rajasthan High Court granted an ad-interim stay on the impugned order dated 08-10-2024, issued by the Commercial Court, Jodhpur, which had earlier placed an ad-interim injunction against the release of the movie “Jigra” citing trademark violation. The Court allowed the release of the movie while safeguarding the respondent’s right to claim damages if a trademark violation is later proven. What is Ad-Interim Injunction? Purpose: The primary aim of an ad-interim injunction under ORDER XXXIX CPC is to maintain the status quo until the court thoroughly examines the merits of the case. It ensures that no party suffers irreparable damage during ongoing litigation. Applicability: An ad-interim injunction is typically issued when there is a prima facie case indicating potential harm to the plaintiff. It is a temporary measure applied while the main dispute is under consideration. Such injunctions can be modified or revoked as the case progresses, depending on new facts or legal arguments. Notice by the Court: Generally, a notice is issued to the opposite party before granting an ad-interim injunction. In urgent cases, ex-parte injunctions may be granted temporarily, even without prior notice, under Order XXXIX Rule 3 of the CPC. Time-Limit: Ad-interim injunctions are temporary and usually apply for a specified period. The court may extend or modify these injunctions as necessary based on the evolving circumstances of the case. Violation: As per Rule 2A of the ORDER XXXIX of CPC, if a party disobeys the terms of an ad-interim injunction, the court may: Attach the property of the guilty party. Detain the person in civil prison for up to three months, unless directed otherwise by the court. Essentials to Avail Ad-Interim Injunction: The plaintiff must demonstrate a prima facie case in their favor. The plaintiff must show potential for irreparable injury if the injunction is not granted. The court assesses the balance of convenience to determine if the injunction is justified. The plaintiff must prove that there is no other adequate remedy available, such as monetary compensation.

judiciary, Law

Bijoe Emmanuel v. State of Kerala (1986)

Background: Three siblings—Bijoe, Binu, and Bindu Emmanuel—were expelled from a school in Kerala for not singing the national anthem (Jana Gana Mana) during the school assembly. The children, belonging to the Jehovah’s Witnesses faith, stood respectfully during the anthem but did not sing it, citing religious beliefs. Key Issue: Whether the expulsion of the students for not singing the national anthem violated their fundamental rights under the Indian Constitution, specifically: Article 19(1)(a) – Freedom of speech and expression. Article 25(1) – Freedom of conscience and free profession, practice, and propagation of religion. Arguments: State’s Argument: The State of Kerala contended that singing the national anthem was a fundamental duty and a sign of respect towards the nation. Petitioners’ Argument: The children argued that their faith did not permit them to sing the anthem, although they stood respectfully while it was being played. Supreme Court’s Observations: The Court recognized the children’s right to freedom of speech and expression, which includes the freedom not to sing. It emphasized that the children’s respectful silence during the anthem indicated that they did not disrespect the national anthem. The Court also highlighted that Article 25 protects the freedom to practice one’s religion, and coercing the children to sing would violate this right. Judgment: The Supreme Court ruled in favor of the Emmanuel siblings, holding that their expulsion violated their fundamental rights under Article 19(1)(a) and Article 25. It was stated that no constitutional law requires citizens to sing the national anthem; standing in respect suffices. Key Takeaways: This case established that freedom of expression includes the freedom to remain silent. It reinforced the principle that personal beliefs and conscience should be respected, as long as they do not disturb public order. The judgment emphasized tolerance and respect for diverse beliefs, shaping the interpretation of religious freedom in India. Impact: The decision is a landmark in upholding individual rights over forced conformity. It set a precedent for balancing national pride with personal beliefs, highlighting that true patriotism respects diversity and individual rights. Conclusion: The Bijoe Emmanuel case is a reminder that the Indian Constitution protects the rights of individuals to express their beliefs freely, ensuring that faith and conscience are not compromised in the name of nationalism.

Indian Constitution

Understanding Writs and Their Role in Protecting Rights

Introduction Writs are legal instruments designed to protect the fundamental rights mentioned in Part III of the Indian Constitution. They are formal written orders from a court, directing specific actions or prohibiting certain activities. The Supreme Court can issue writs under Article 32, while High Courts have the power under Article 226. These tools ensure the enforcement of constitutional rights, acting as checks on the abuse of power. Writs can be issued in the form of orders, directions, or commands. A person whose rights are violated can file a writ petition with the appropriate court. Dr. B.R. Ambedkar called Article 32 the “heart and soul of the Constitution.” Types of Writs Habeas Corpus Meaning: “You may have the body.” Ensures protection against unlawful detention, compelling the authority to present the detained person before the court. If the detention is found illegal, the court can order immediate release. It cannot be used if detention is backed by a lawful authority. This writ is crucial in upholding the right to personal liberty. Can be sought by the detained individual or by their family/friends. Conditions: Detained person not presented before a magistrate within 24 hours. Detention under an unconstitutional law. Arrest without legal cause. Case Laws: R.D. Upadhyay v. State of A.P. (2006): The writ was used to address conditions in children’s homes. Kharak Singh v. State of U.P. (1964): Reinforced the right to personal liberty, limiting state surveillance. Mandamus Meaning: “We command.” Directs a public authority to fulfill its duties. Filed by individuals whose legal rights are being denied by public officials. Can be issued against government bodies, tribunals, or public corporations. It’s not applicable to private individuals, the President, or Governors. Exceptions: Discretionary duties, non-statutory functions, private rights, or where alternative remedies exist. Case Laws: Bhopal Gas Peedith Mahila Udyog Sangathan v. Union of India (2012): Highlighted that the writ cannot be issued when alternative legal remedies exist. P.U.C.L. v. Union of India (2003): Clarified the scope of mandamus in public interest matters. Certiorari Meaning: “To be informed.” Used to correct the errors of lower courts when they act beyond their jurisdiction. Allows the higher court to transfer a case to itself or quash a faulty decision. Applicable against administrative as well as judicial authorities after 1991. Not issued against private individuals. Grounds: Lack of jurisdiction, procedural errors, or failure to follow natural justice. Case Laws: State of Gujarat v. Raghav Bechar (1969): Set limits on when a certiorari writ can be issued. Surya Dev Rai v. Ram Chander Rai (2003): Clarified the power of courts under Articles 226 and 227 to issue certiorari. Quo Warranto Meaning: “By what authority.” Prevents an individual from holding a public office illegally. The court asks the official to justify their authority to hold that position. Not applicable to private roles or appointments. Grounds: Unqualified individual occupying a public office. The office must have a statutory basis. Case Laws: Shivaji Rao v. State of Maharashtra (1983): Emphasized the importance of statutory qualifications for holding public office. Ashok Pandey v. State of Uttar Pradesh (2000): Discussed the applicability of this writ to university appointments. Prohibition Meaning: “To forbid.” Stops a lower court or tribunal from overstepping its jurisdiction. Unlike mandamus, it prohibits action rather than compelling it. Aimed at preventing jurisdictional overreach by subordinate courts. Not applicable to administrative bodies, legislative actions, or private entities. Conditions: Exceeding authority, procedural violations, using invalid laws, or violating legal rights. Case Laws: East India Commercial Co. Ltd. v. Collector of Customs (1962): Clarified that prohibition is available only before a lower court’s decision. S. Govind Menon v. Union of India (1967): Addressed the limits of judicial intervention through prohibition. CLICK TO WATCH THE DETAILED VIDEO ON WRITS BY TOA

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Mehr (Dower) Muslim Law

Mehr (Dower) Definition, Nature and Importance of Dower (Mahr) “Dower is a sum of money or other property which the wife is entitled to receive from the husband in consideration of marriage” Mulla. According to K.P. Saxena “Dower is a sum of money or any property promised by the husband to be paid or delivered to the wife as a mark of respect for the surrender of her person after the marriage contract but generally said to be consideration for marriage.” Further, In Saburannessa v. Sabdur Sheikh, [(1934) Justice Mitter remarked: The marriage under Muslim law is a civil contract and it is like a contract of sale. But the notion of dower given above is not correct. Fitzgerald says: “It would be incorrect to describe the Muslim dower purely as the bride’s price.” Baillie says, under Muslim Law ‘dower is an obligation imposed upon the husband as a mark of respect to the wife.’ Abdur Rahim rightly says, “It is not a consideration proceeding from the husband for the contract of marriage, but is an obligation imposed by the law on the husband as a mark of respect for the wife as is evident from the fact that the non-specification of dower at the time of marriage does not affect the validity of marriage.” (Muhammadan Jurisprudence, p. 334). Hedaya says that “the payment of dower is enjoined by the law as a token of respect for its object, the woman.” Further unlike sale, dower is not given to anyone except to the women herself. Object of Dower The object of dower is three-fold: to impose an obligation on the husband as a mark of respect of the wife; to place a check on the capricious use of divorce on the part of husband; and to provide for her subsistence after the dissolution of her marriage, so that she may not become helpless after the death of the husband or termination of marriage by divorce. Subject matter of dower A handful of dates (Abu Daud). A pair of shoes (Tirmizi). If the husband is a slave, his services to his wife (Mohit Sarkhsee). The services of the husband’s slaves to the wife (Fatawa-i-Alamgiri). Husband’s services rendered to the guardian of a minor wife (Durrul Muktar). Teaching Koran to the wife (Tradition). In fact, the main contention of the Muslim jurists is that anything which comes within the definition of property can be the subject-matter of dower. Minimum and Maximum Amounts of dower Minimum – Hanafis 10 dirhams Malikis – 3 dirhams. Shafiis No minimum. Shias. No minimum. Maximum amount can be any amount without any upper limit. Among some of the sects of Shias, however, there is a tendency “not to stipulate for a sum higher than the minimum fixed by the Prophet for his favourite daughter Fatima, the wife of Ali, namely 500 dirhams. Amounts of dower and conditions of payment. If the marriage is consummated, and is dissolved by death: (a) whole of the specified dower or in case of regular marriage. (b) proper dower if unspecified, (c) specified or proper dower, which is less, in the case of irregular marriage. if the marriage is not consummated, and is dissolved by the act of party. (i) When divorced by the husband– (a) half of the specified dower, or (b) a present of three articles, if unspecified – in case of regular marriage (ii) When divorced by the wife: No dower, (iii) If the marriage is irregular: No dower   Kinds of dower Broadly, there are two kinds of dower: specified (Mahr i Musamma) and unspecified (proper or Mahr i Misl). The specified dower has been further divided into: (a) Prompt (Mahr Muajjal) and (b) Deferred (Mahr e Muwajjal) (i) Specified dower.- An amount settled by the parties at the time of marriage or after, is called specified dower. If the bridegroom is minor, his father may settle the amount of dower, Hanafi Law says that the father is not personally liable for the dower, but according to Shia Law, he will be so liable. Prompt and Deferred dower.-Prompt dower is payable on demand, and deferred dower is payable on the dissolution of marriage by death or divorce. The prompt portion of the dower may be realised by the wife at any time before or after consummation, but the deferred dower could not be so demanded. In the case where it is not settled how much of the dower is prompt and what part of it is deferred, the Shia Law holds that the whole of dower is prompt; the Sunni Law, however, holds that only a part is prompt. This part is to be fixed with reference to (i) custom, or (ii) the status of the parties, and (iii) the amount of settled dower. Unspecified dower.-In such cases where dower has not been settled at the time of the marriage or after, it is fixed with reference to the social position of the wife’s family and her own personal qualifications. Help would be taken by taking into account the amounts of dower fixed in case of wife’s sisters, paternal aunts, etc., and according to the Hedaya, the wife’s age, beauty, intellect and virtue will also be considered. Such dowers are called mahr-ul-misl. One aspect of dower beneficial to the Muslim woman is that even where the parties to the marriage have not stipulated any dower, the husband remains under an obligation to pay it.   Remedies in case of non-payment of Dower The rights which dower confers on the wife are threefold : Refusal to cohabit. Right to dower as a debt. Retention of husband’s property. Refusal to cohabit. Before consummation, the wife is entitled to refuse to live with her husband and refuse to him sexual intercourse so long as prompt dower is not paid to her. In a suit for restitution of conjugal rights by the husband, the non-payment of prompt dower is a complete defence if the marriage is not consummated. If the wife…

Human Rights, judiciary, Law, Legal, Uncategorized

12 Maxims of Equity

12 Maxims of Equity Maxims of Equity Equity in law refers to a set of principles that aim to achieve fairness and justice when the strict application of legal rules might result in an unfair outcome. The principles of equity are often summarized in maxims, which serve as guidelines for courts in deciding cases based on fairness. In this article we will discuss 12 most important maxims of equity. He who seeks equity must do equity Meaning If you want the court to help you, you must be fair and just in your own actions. Example This maxim is incorporated under Order 8, Rule 6 of the CPC, as the doctrine of set-off. Suppose A goes to court and claims 1000 rupees due from B. B claims in a same suit 300 rupees due to him from A. If A wants courts to do equity (grant him his 1000 rupees) he should also do equity (should also return to B his 300 rupees) Example Imagine a tenant who has not paid rent for several months. If this tenant goes to court asking for protection against eviction, the court will expect the tenant to be willing to pay the overdue rent. The tenant must act fairly by paying what is due if they want the court’s help. Equity will not suffer a wrong to be without a remedy Meaning If someone has been wronged, the court will find a way to provide a remedy, even if the existing laws do not offer a clear solution. It is based on Latin maxim “Ubi jus ibi remedium” which means “where there is a right, there is a remedy.” Principle This principle means that if a legal right has been violated, the law must provide a way to enforce that right or offer compensation. Example Imagine someone takes your land by cheating you out of it. The strict law might not have a specific solution to give your land back if the papers are all legal. However, based on this maxim, the court will ensure that some remedy (such as getting the land back or compensation) to be given to you as a remedy. Leading Case on where there is a right there is a remedy Ashby v. White 1703 is a landmark English case. Facts Plaintiff: Mr. Ashby, a qualified voter. Defendant: Mr. White, a constable. Incident: Mr. Ashby was wrongfully prevented from voting by Mr. White. The candidate whom Ashby wanted to vote won the election in spite of that. Reasoning Plaintiff’s Argument: Ashby argued that even the candidate whom he wanted to vote has won the election but still his right to vote, was violated. He sought damages for this infringement. Defendant’s Argument: White contended that since Ashby’s preferred candidate won, no actual damage was suffered, and thus no compensation was warranted. Conclusion Court’s Decision: The court, led by Chief Justice Holt, ruled in favor of Ashby. It was held that the right to vote is a common law right, and any obstruction of this right should give rise to a cause of action, regardless of whether tangible damage occurred. Legal Principle: The decision in Ashby v. White set a principle that there is a legal remedy available for any infringement. Equity regards as done what ought to be done Meaning The court treats things that should have been done as if they were actually done. Example Suppose a person agrees to sell a piece of land to another person and receives the payment. However, the formal transfer of the land (registration) hasn’t been completed yet. If a dispute arises, the court will treat the land as already transferred to the buyer because the seller has received the payment and should have completed the transfer. Application of this maxim in India   Section 40 of TPA Illustration A contracts to sell Sultanpur to B. While the contract is still in force he sells Sultanpur to C, who has notice of the contract. B may enforce the contract against C to the same extent as against A. Principle If a person has promised or is obligated to do something, they should be treated as if they have fulfilled that promise, even if they haven’t done it yet. Equity is equality Meaning The maxim “equity is equality” ensures that the court tries to treat everyone equally and fairly, especially in cases involving division of assets or benefits. Example A, B and C bind themselves as sureties for a debt of Rs. 3,000/- advanced by X to Y. On Y’s failure to pay off the debt, X has a right to recover the whole amount from any of the three and if A has been compelled to pay the whole and cannot obtain indemnity from Y he (A) is entitled to a contribution of one-third from B and the other one-third from C and has to bear only the remaining one-third for himself. Principle Here the contribution is not the result of contract but is based upon the principle of natural justice. The statutory applications of this doctrine under the Indian Law are :- (i) Section 43 of the Indian Contract Act, 1872, which entitles a co-promisor who has performed the promise to compel other joint-promisors to contribute equally; (ii) Section 146 of the Indian Contract Act, 1872 provides for contribution among co-sureties ; (iii) Section 27 of the Indian Trust Act, 1882 which provides for contribution among co-trustees in case of a breach of trust; whether breach of trusts was committed jointly or where one of the trustees by his neglect enables the other to commit a breach of trust. (iv) Section 82 of the Transfer of Property Act, 1882 provides for contribution to the mortgage debt by the co-mortgagors. Example 1 (Contract for Sale of Property): Situation: You entered into a contract to buy a piece of land from a seller. You paid the full amount, but the seller hasn’t transferred the land to you. Court’s Action: The court can apply…

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art 5 to 11

  Category Description Illustration Case Law Citizens Enjoy all civil and political rights. – Articles 15, 16, 19, 29, and 30 are only for Indian citizens.<br>- Right to vote in elections to the Lok Sabha & state legislative assembly.<br>- Right to contest for membership of Parliament & state legislature.<br>- Can hold public offices such as President, Vice President, judges of SC & HCs, governor of states, attorney general of India & advocate general of states.<br>- Article 51A imposes 11 fundamental duties only on citizens. – Aliens Do not enjoy all civil and political rights. – Friendly aliens: Subjects of countries with cordial relations with India.<br>- Enemy aliens: Subjects of countries at war with India. – Natural Persons Living human beings. Examples: Men, women, and children. – Legal Persons Entities deemed to exist in the eye of law. Examples: Corporations, companies, institutions, universities, banks, railways, colleges, temples, hospitals, clubs, idols, etc. – Article 5 Persons domiciled in India. – Born in India.<br>- Either parent born in India.<br>- Resident in India for five years before the commencement of the Constitution. Pardeep Jain v. Union of India, 1984: Recognizes only one domicile, viz. domicile of India. Article 6 Persons migrated from Pakistan. – – Article 7 Persons migrated to Pakistan but later returned. – – Article 8 Persons of Indian origin residing outside India (overseas Indians). – – Article 9 No person shall be a citizen of India if they have voluntarily acquired the citizenship of any foreign state. – – Article 10 Continuation of citizenship. – – Article 11 Parliament’s power to regulate citizenship. – – Acquisition of Citizenship (Citizenship Act, 1955): Birth Descent Registration Naturalisation Incorporation of territory Loss of Citizenship (Citizenship Act, 1955): Renunciation Termination Deprivation

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WRITS The state and its instrumentalities, such as the police, universities, and other government bodies, exist to serve the nation and fulfil public duties. However, there are times when these very entities violate our rights, leaving us with no other option. In such instances, we can seek help and assistance from the court by applying for special orders known as writs. Thus, writs are special orders issued by superior courts to protect people’s rights and ensure that justice is done. These writs are five in number. These writs serve as an effective mechanism through which the judiciary can uphold the rights of individuals when those rights are violated, particularly by the state or public authorities, and in some cases even by private individuals.  In India, two courts have the authority to issue writs: Supreme Court (Article 32): Writs only for fundamental rights. High Courts (Article 226):  Writs for fundamental rights and other legal rights.   Habeas Corpus Habeas Corpus is a Latin term which literally means “you may have the body”.  The writ is issued in the form of an order calling upon a person by whom another person is detained to bring that person before the Court and to let the Court know by what authority he has detained that person. Who can apply for the writ: The general rule is that an application can be made by a person who is illegally detained, But in certain cases, an application of habeas corpus can be made by any person on behalf of the prisoner, i.e., a friend or a relation. Burden of proof The burden of proof to justify detention has always been placed on the detaining authority. Writ against private individual The Supreme Court of India clarified this in the case of Kanu Sanyal v. District Magistrate, Darjeeling (1973). In this landmark judgment, the Court emphasized that the writ of habeas corpus can be issued not only against public authorities but also against private individuals if it is proven that they are unlawfully detaining someone. Case Law and Example: Mohd. Ikram Hussain v. State of U.P. (1964) All  Facts: Mohd. Ikram Hussain was arrested and detained by the police under the suspicion of having committed a crime. His family believed that the detention was illegal, as he was not produced before a magistrate within the stipulated time, and there was no legal basis for his continued detention. The family filed a petition in the Allahabad High Court, seeking a writ of habeas corpus to challenge the illegal detention and secure his release.  Judgement: The Allahabad High Court issued the writ of habeas corpus and ordered the police to bring Mohd. Ikram Hussain before the court to justify his detention. Upon reviewing the facts, the court found that: The detention was illegal, as the police had not followed due process, including presenting him before a magistrate within the required time. The court directed his immediate release, as there was no valid reason for his continued detention. Similarly, the detention becomes unlawful if a person who is arrested is not produced before the Magistrate within 24 hours of his arrest and he will be entitled to be released on the writ of habeas corpus.  It can also be issued in case of child’s custody cases by one parent against the other.   Mandamus The word “mandamus” means “the order” or “we command”. When it is used: If a government officer or body is not performing its duty, you can approach the court for a mandamus writ to compel them to act. For instance, a licensing officer is under a duty to issue a licence to an applicant who fulfils all the conditions laid down for the issue of such Licence. But despite the fulfilment of such conditions if the officer or the authority concerned refuses or fails to issue the licence the aggrieved person has a right to seek the remedy through a writ of mandamus. Allahabad High Court issued a writ of mandamus to direct the Regional Passport Officer to issue a passport to the petitioner. (Basoo Yadav v. Union of India, 2022 All) When it will not lie. —A writ of mandamus will not be granted in the following circumstances: (1) When the duty is merely discretionary in nature the writ of mandamus will not lie. State of M. P. v. Mandawara,’ the M. P. Government made a rule making it discretionary to grant dearness allowance to its employees at a particular rate. The Supreme Court held that the writ of mandamus could not be issued to compel the Government to exercise its power. (2) A writ of mandamus does not lie against a private individual or any private organisation because they are not entrusted with a public duty.’ (3) A writ of mandamus cannot be granted to enforce an obligation arising out of contract.’   Prohibition A writ of prohibition literally means “to forbid”. It is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction or acting contrary to the rules of natural justice. It is issued by a superior Court to inferior courts for the purpose of preventing inferior Courts from usurping a jurisdiction with which it was not legally vested, or in other words to compel inferior courts to keep within the limits of their jurisdiction. Thus the writ is issued in both cases where there is excess of jurisdiction and where there is absence of jurisdiction. Hari Vishnu Kamath v. Syed Ahmad Ishaque (1955) Facts: This case involved an election dispute where the Election Tribunal’s decision was challenged. Reasoning: The Supreme Court issued a writ of prohibition to prevent the Tribunal from proceeding further, as it had acted beyond its jurisdiction. East India Commercial Co. Ltd. v. Collector of Customs (1962) Facts: This case involved the seizure of goods by customs authorities without proper jurisdiction. Reasoning: The Supreme Court issued a writ of prohibition to prevent the customs authorities from proceeding further, as they had acted beyond their jurisdiction….

Indian Constitution, judiciary, Law