Name:- SAMYAK. MUKESH .

JAIN
Roll No:- 28
Division:- A/SYBLS
Semester:- IV
Subject:- LOGIC -II
Topic:- QUO WARRANTO
SUBMITTED TO : MOONAM MAM
Introduction:
Article 32 of the Indian Constitution (hence referred to as the
“Constitution”) is the guardian and shield that serves to protect the
individual’s fundamental rights, given in Part III of the Constitution.
According to the words left behind by Dr. B.R Ambedkar, Article 32
is the most important Article, and it embodies the “very heart and
soul” of the Constitution. Indeed, in order to be called ‘rights’ in the
first place, having an effective remedy to combat the breach of one’s
fundamental rights is essential. The Constitution-makers arranged for
a remedy in the form of Article 32 and Article 226. These Articles
allowed for the Courts to issue writs – orders issued in the name of
the sovereign necessitating the performance of a certain act.

Article 32 grants the Supreme Court with the power to issue five
types of writs: habeas corpus, mandamus, prohibition, certiorari and
quo warranto. The Supreme Court can also issue writs “in the nature
of” the five aforementioned writs, allowing the Court to have a wider
scope of movement in the enforcement of justice. The writ
jurisdiction of Article 32 only covers the protection of fundamental
rights by the Supreme Court, whereas, Article 226 grants the High
Courts the power to issue the five types of writs, or any other purpose.

What is Quo Warranto

The maxim quo warranto means “by what authority” and this writ is
issued to prevent a ‘usurper’ from wrongfully occupying a substantive
public office, enjoying certain privileges and franchise from that
public office, when he does not have the authority to do so. The
person being appointed to the public office must show by what
authority he occupies it, in order for it to be considered a valid
appointment.

History and later developments of the writ of Quo Warranto

The origins of the concept of writ jurisdiction can be found in early

English law. Quo warranto used to be issued by the Crown against
any person occupying or usurping a public office, availing franchise
or privilege of the Crown – to show by what authority the usurper
justified his claim. In India, during the Pre-Constitution period, the
writ of quo warranto was not used frequently and was gradually
replaced by proceedings in the nature of quo warranto. According to
Section 9 of the Administration of Justice (Miscellaneous Provisions)
Act 1938, information in the nature of quo warranto came to an end.
The three High Courts in the Presidency towns, before the
Constitution came into effect in 1950, possessed the authority to issue
the writ of quo warranto within the limits of their original
jurisdiction. With the advent of the Constitution in 1950, Articles 32
and 226 emerged and granted the Supreme Court and High Courts,
respectively, the power to issue writs, including the writ of quo
warranto.

Who can file the writ of Quo Warranto :

The following conditions are required to apply to the court to issue a
writ of quo warranto:

1. There is no bar or restriction on who can apply. Any person

can apply as long as their fundamental or any other legal right
is being breached. In cases where there is no breach of right, a
question of public interest must arise with respect to the
application.

2. The application made by the applicant should be bona fide.

3. The application should not be made for the sake of certain

hidden political struggle or undercurrent. The applicant
should act in public interest, and not expect any benefit or
unethical gain through making the application.

Grounds of issuing the writ of Quo Warranto

The writ of quo warranto can be issued under the following cases:

1. When a public office (created by law or the Constitution) is

occupied by a private person, who does not actually have the
authority to do so.

2. The public office must be substantive in character. The duties

connected to the office must also be public in nature.

3. The usurper, whose authority is being challenged, must be

holding his position at the time the challenge is made.
 4. Even if a person was qualified at one point of time, the writ of
quo warranto can be issued against him if he loses his
qualifications.

Conditions for issuing the writ of Quo Warranto

Public office

The writ of quo warranto applies in the case of an office which is

public and not private in nature, i.e established by law or the
Constitution. The public office must be substantive in nature, which
excludes mere employment or function of a servant at the pleasure of
another.

The writ can be successfully applied in a case where

1. The usurper does not have the requisite qualifications to hold

the public office.

2. The usurper exercises certain rights or privileges with respect

to the public office he wrongfully occupies.

Election

The Court needs to have strong and concrete justification if it wants to

interfere with cases associated with election. The Court can only
interfere by issuing the writ of quo warranto where:

1. The election does not have the sanction of the law;

 2. There was a problem where people’s right to express their
opinions was being curtailed;

3. The electoral roll was unlawfully made and used.

In cases where the inconsistency in the election does not affect the
end result, or the problem is not severe enough, the Court usually
does not interfere. The Court also does not take action when the
applicant’s intentions are shady, with respect to the problems
concerned with election.

Procedure to follow if Quo Warranto has to be issued

Article 32(1) grants the Supreme Court the power to issue writs,
orders, directions through “appropriate proceedings” for the purpose
of enforcing fundamental rights covered under Part III of the
Constitution. The procedure for issuing writs is not rigid and has not
been stipulated in the Constitution. As India is a diverse country with
a plethora of social issues such as poverty, exploitation and lack of
awareness, it would not be conducive to enforce fundamental rights if
the process for doing so is too complicated and ‘straight-jacketed.’
The Court may either take suo motu cognisance of the case, or
entertain a PIL (public interest litigation) concerned with the case.

When can the writ of Quo Warranto be refused

The Court has the discretion to refuse to grant quo warranto in cases
where:
 1. The Court’s interference would not change the end result;

2. The case is vexatious;

3. The defendant no longer wrongfully occupies public office.

Case laws on the writ of Quo Warranto

Amarendra Chandra v. Narendra Kumar Basu, (1951)

In this case, the members of the Managing Committee of a school in

Calcutta were the respondents. The application for quo warranto was
prayed for, to question the authority by which these members
occupied their posts. The Court held that the writ of quo
warranto would not be applicable to an office of a private nature.

G.D Karkare v. T.L Shevde, (1952)

In G.D Karkare v. T.L Shevde, (1952), the appointment of a non-

applicant as Advocate-General of Madhya Pradesh by the Governor
was challenged. The non-applicant had already crossed the age of 60
and retired from his post as a High Court Judge. As such, based
on Article 165(1), since he was no longer a High Court Judge, he was
not qualified to be appointed as Attorney-General. Here, the Court
observed that it was not merely confined to enforcing fundamental
rights based on Article 226(1). The phrase “for any other purpose” in
Article 226 empowered the Court to act on any object it considered
appropriate and in the exercise of its powers. There is no reason that
the same cannot be applied to issuing the writ of quo warranto.
Furthermore, in the proceedings for the writ of quo warranto, the non-
applicant does not seek to enforce his fundamental rights or complain
of any non-performance of duty towards himself. The main issue was
whether the non-applicant has the right to occupy the office and
whether the order passed is an order ousting the non-applicant from
his position.

University of Mysore v. CD Govinda Rao, (1963)

In this case, the University of Mysore had set up recruitment

advertisements for the positions of professor and reader. The
eligibility for the posts would be decided on the basis of the list of
criteria made by the University. The petition was put forward to issue
the writ of quo warranto based on the fact that an unqualified person,
not meeting the criteria was recruited and appointed as reader in
English. It was observed by the Supreme Court that to issue the writ
of quo warranto, the person who wrongfully occupies the public
office, must be holding an office of a ‘substantive’ nature.

Mahesh Chandra Gupta v. Dr. Rajeshwar Dayal and Ors, (2003)

In Mahesh Chadra Gupta v. Dr. Rajeshwar Dayal and Ors, (2003),

the appointment of the respondent as a professor of Paediatrics in S.N
Medical College in Agra was questioned. However, it was found that
the appellant had no connection or interest whatsoever with the
appointment and was not adversely affected in any way. The Court
referred to the case Bindra Ban v. Sham Sunder (1959), where
the locus standi was relaxed for applying for the writ of quo
warranto. However, even so, a person cannot apply for quo warranto
when he does not have even the remotest connection to the
appointment of the public office which is being challenged. By
allowing such applications, the Court would be flooded by such
petitions.

Even if the locus standi is relaxed, there must be certain connection

between the petitioner and the appointment to the public office, no
matter how remote for quo warranto to be maintainable.

S. Chandramohan Nair v. George Joseph, (2010)

In S. Chandramohan Nair v. George Joseph, (2010), the appointment

of the appellant as a member of the State Consumer Commission was
challenged on the ground that his name was not recommended by the
Selection Committee. Here, the respondent had no relation to the
State Commision and failed to prove how the appointment would
adversely affect the samiti of which he was a general secretary. The
Court labelled the respondent a ‘busybody’ and ‘interloper’. The
Supreme Court observed that the Division Bench of the Kerala High
Court erred by issuing the writ of quo warranto, thus quashing the
appellant’s appointment to the State Commission.
Rajesh Awasthi v. Nand Lal Jaiswal, (2013)

In Rajesh Awasthi v. Nand Lal Jaiswal, (2013), it was laid down

that quo warranto applies where an appointment is made which is
“contrary to statutory provisions” and came up with a test to
determine whether a person is eligible/qualified to hold office as per
the stipulations of law. The key point is to see if the office holder has
the qualifications to hold office as per law or not, with respect to
statutory provisions.

Critical analysis of the writ of Quo Warranto

Elements of Quo Warranto

1. For issuing the writ of quo warranto, the following

ingredients are necessary:

 Wrongful occupation;

 Nature of the office being public, not private;

 Substantive character;

 Contrary to statutory provisions or the law.

2. For quo warranto, with respect to Article 226(1), it is not

necessary that there must be a breach of fundamental rights or
a non-performance of duty. The main issue is – whether the
usurper has the authority to hold the office, and if not, then
the order passed is an order to oust the usurper from his post.
 3. Even though the locus standi for quo warranto is relaxed
compared to writs such as certiorari and mandamus, the
applicant must not be completely unrelated to the
appointment and office in question. Even if the connection is
remote, the ‘link’ itself must exist.

4. In cases of election, where the applicant is not adversely

affected or the end result would not change despite the
interference of the Court, the Court usually takes a stance of
non-interference.

5. The applicant must not have any malafide or ulterior motives

for applying for quo warranto. The purpose of the applicant
should be inclined towards acting for the benefit of public
interest, and not for personal gain.

The concept of Quo Warranto in other countries

England

The Crown started the practice of issuing prerogative writs (writs with
a special relationship to the Crown), thus elevating prerogative writs
and the Crown’s justice supreme over the other courts. The Crown
used the writ of quo warranto to prevent the wrongful usurpation of
public offices, and associated rights, privileges and franchise by its
subjects, predominantly the lords of the nobility. By showing with
what right or authority they claimed their office, the office-holders
justified their claim. During the era of colonisation, English law left
its mark on the commonwealth countries and its colonies (including
India). The concept of writs in Indian law can find its origins in
English law.

California, USA

In California, USA, to apply for the writ of quo warranto, the

approval of the Attorney-General is required. If leave to sue is
granted, then the applicant or relator must proceed under the
supervision of the Attorney-General. If the usurper holding the office
is found to be holding it without authority or wrongfully, then, the
Court may issue a writ of quo warranto to remove him.

Australia

In Australia, the writ of quo warranto inquires into the justification,

or by what authority a person holds a franchise or an office. The
usurper may be ‘deemed’ to hold an office wrongfully, and the writ
can be brought about by both the Crown or a person.

Conclusion

To summarise, Articles 32 and 226 serve as the guardians of

fundamental rights enshrined in Part III of the Indian Constitution.
These Articles prevent the legislative and the executive from
infringing on the rights of the people, which have been guaranteed to
them by the Constitution. The independent judiciary has been tasked
with interpreting the Constitution and it fulfils the right to
constitutional remedies through writs. The writ of quo warranto acts
as a scanner to inquire into the legitimacy of holders of substantive
public offices.

Public offices are vital toward the day-to-day and overall smooth
functioning of the nation. To have unqualified people sitting in these
important offices is a very serious concern. Quo warranto curbs
nepotism, corruption, and irregularity and allows for applications to
remove unqualified people from these important positions. Despite
being a legacy of the colonial era, the writ of quo warranto is still
significant and relevant, especially with respect to preserving the
sanctity of public offices and elections in India.

References

1. https://oag.ca.gov/opinions/quo-warranto

2. https://researchdata.edu.au/quo-warranto-briefs/162107

3. https://ccsuniversity.ac.in/bridge-library/pdf/B.A.LL.B.
%20VIII%20SEM%20(ADMINISTRATIVE%20LAW%20BL
%20801)%20TOPIC-%20WRITS.pdf

4. J.N Pandey, Constitutional Law of India, 54th Edition

5. Sumeet Malik, V.D Kulshreshtha’s Landmarks in Indian Legal

and Constitutional History, EBC, Lucknow

6. M.P Jain, Indian Constitutional Law, 7th Edition, LexisNexis