Quo-Warranto

In the literal sense, it means 'by what authority or warrant’. It is issued by the court to enquire into the legality of claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person.

The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution. It cannot be issued in cases of ministerial office or private office.

Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.

Article 33 empowers the Parliament to restrict or abrogate the fundamental rights of the members of armed forces, para-military forces, police forces, intelligence agencies and analogous forces. The objective of this provision is to ensure the proper discharge of their duties and the maintenance of discipline among them.

The power to make laws under Article 33 is conferred only on Parliament and not on state legislatures. Any such law made by Parliament cannot be challenged in any court on the ground of contravention of any of the fundamental rights.

Accordingly, the Parliament has enacted the Army Act (1950), the Navy Act (1950), the Air Force Act (1950), the Police Forces (Restriction of Rights) Act, 1966, the Border Security Force Act and so on. These impose restrictions on their freedom of speech, right to form associations, right to be members of trade unions or political associations, right to communicate with the press, right to attend public meetings or demonstrations, etc.

Table 7.3 Martial Law Vs National Emergency

5. I t has no specific provision in the Constitution. It is implicit.

of it.

5. I t has specific and detailed provision in the Constitution. It is explicit.

The expression'members of the armed forces’ also covers such employees of the armed forces as barbers, carpenters, mechanics, cooks, chowkidars, bootmakers, tailors who are non-combatants.

A parliamentary law enacted under Article 33 can also exclude the court martial (tribunals established under the military law) from the writ jurisdiction of the Supreme Court and the high courts, so far as the enforcement of Fundamental Rights is concerned.

Article 34 provides for the restrictions on fundamental rights while martial law is in force in any area within the territory of India. It empowers the Parliament to indemnify any government servant or any other person for any act done by him in connection with the maintenance or restoration of order in any area where martial law was in force. The Parliament can also validate any sentence passed, punishment inflicted, forfeiture ordered or other act done under martial law in such area.

The Act of Indemnity made by the Parliament cannot be challenged in any court on the ground of contravention of any of the fundamental rights.

The concept of martial law has been borrowed in India from the English common law. However, the expression 'martial law’ has not been defined anywhere in the Constitution. Literally, it means 'military rule’. It refers to a situation where civil administration is run by the military authorities according to their own rules and regulations framed outside the ordinary law. It thus imply the suspension of ordinary law and the government by military tribunals. It is different from the military law that is applicable to the armed forces.

There is also no specific or express provision in the Constitution that authorises the executive to declare martial law. However, it is implicit in Article 34 under which martial law can be declared in any area within the territory of India. The martial law is imposed under the extraordinary circumstances like war, invasion, insurrection, rebellion, riot or any violent resistance to law. Its justification is to repel force by force for maintaining or restoring order in the society.

During the operation of martial law, the military authorities are vested with abnormal powers to take all necessary steps. They impose restrictions and regulations on the rights of the civilians, can punish the civilians and even condemn them to death.

The Supreme Court held that the declaration of martial law does not ipso facto result in the suspension of the writ of habeas corpus.

The declaration of a martial law under Article 34 is different from the declaration of a national emergency under Article 352. The differences between the two are summarised in Table 7.3.

Article 35 lays down that the power to make laws, to give effect to certain specified fundamental rights shall vest only in the Parliament and not in the state legislatures. This provision ensures that there is uniformity throughout India with regard to the nature of those fundamental rights and punishment for their infringement. In this direction, Article 35 contains the following provisions:

1. The Parliament shall have (and the legislature of a state shall not have) power to make laws with respect to the following matters:

(a) Prescribing residence as a condition for certain employments or appointments in a state or union territory or local authority or other authority (Article 16).

(b) Empowering courts other than the Supreme Court and the high courts to issue directions, orders and writs of all kinds for the enforcement of fundamental rights (Article 32).

(c) Restricting or abrogating the application of Fundamental Rights to members of armed forces, police forces, etc. (Article 33).

(d) Indemnifying any government servant or any other person for any act done during the operation of martial law in any area (Article 34).

2. Parliament shall have (and the legislature of a state shall not have) powers to make laws for prescribing punishment for those acts that are declared to be offences under the fundamental rights. These include the following:

(a) Untouchability (Article 17).

(b) Traffic in human beings and forced labour (Article 23).

Further, the Parliament shall, after the commencement of the Constitution, make laws for prescribing punishment for the above acts, thus making it obligatory on the part of the Parliament to enact such laws.

3. Any law in force at the commencement of the Constitution with respect to any of the matters specified above is to continue in force until altered or repealed or amended by the Parliament.

It should be noted that Article 35 extends the competence of the Parliament to make a law on the matters specified above, even though some of those matters may fall within the sphere of the state legislatures (i.e., State List).

Originally, the right to property was one of the seven fundamental rights under Part III of the Constitution. It was dealt by Article 19(1) (f) and Article 31. Article 19(1)(f) guaranteed to every citizen the right to acquire, hold and dispose of property. Article 31, on the other hand, guaranteed to every person, whether citizen or non-citizen, right against deprivation of his property. It provided that no person shall be deprived of his property except by authority of law. It empowered the State to acquire or requisition the property of a person on two conditions: (a) it should be for public purpose, and ( b) it should provide for payment of compensation (amount) to the owner.

Since the commencement of the Constitution, the Fundamental

Right to Property has been the most controversial. It has caused confrontations between the Supreme Court and the Parliament. It has led to a number of Constitutional amendments, that is, 1st, 4th, 7th, 25th, 39th, 40th and 42nd Amendments. Through these amendments, Articles 31A, 31B and 31C have been added and modified from time to time to nullify the effect of Supreme Court judgements and to protect certain laws from being challenged on the grounds of contravention of Fundamental Rights. Most of the litigation centred around the obligation of the state to pay compensation for acquisition or requisition of private property.

Therefore, the 44th Amendment Act of 1978 abolished the right to

property as a Fundamental Right by repealing Article 19(1) (f) and Article 31 from Part III. Instead, the Act inserted a new Article 300A in Part XII under the heading 'Right to Property’. It provides that no person shall be deprived of his property except by authority of law. Thus, the right to property still remains a legal right or a constitutional right, though no longer a fundamental right. It is not a part of the basic structure of the Constitution.

The right to property as a legal right (as distinct from the Fundamental Rights) has the following implications:

(a) It can be regulated ie, curtailed, abridged or modified without constitutional amend-ment by an ordinary law of the Parliament.

(b) It protects private property against executive action but not against legislative action.

(c) In case of violation, the aggrieved person cannot directly move the Supreme Court under Article 32 (right to constitutional

remedies including writs) for its enforcement. He can move the High Court under Article 226.

(d) No guaranteed right to compensation in case of acquisition or requisition of the private property by the state.

Though the Fundamental Right to Property under Part III has been abolished, the Part III still carries two provisions which provide for the guaranteed right to compensation in case of acquisition or requisition of the private property by the state. These two cases where compensation has to be paid are:

(a) When the State acquires the property of a minority educational institution (Article 30); and

(b) When the State acquires the land held by a person under his personal cultivation and the land is within the statutory ceiling limits (Article 31 A).

The first provision was added by the 44th Amendment Act (1978), while the second provision was added by the 17th Amendment Act (1964).

Further, Articles 31A, 31B and 31C have been retained as exceptions to the fundamental rights.