Polity

Right to Constitutional Remedies: Types of Writs

Right to Constitutional Remedies

One of the most important parts which makes the Constitution of India so dynamic is the illustrious list of Fundamental Rights that it provides to the citizens. However, just writing down the list of fundamental rights isn’t enough. Making a provision so that the rights given to the people are exercised and safeguarded in case of their violation, is necessary. Because without such a provision, realizing the rights provided to the people isn’t possible, and these rights could easily be violated. So, in order to safeguard our fundamental rights, the Indian Constitution provides the Right to Constitutional Remedies as a fundamental right to the people. The Right to Constitutional Remedies is mentioned in Article 32 of the Indian Constitution. Dr. B.R. Ambedkar considered the Right to Constitutional Remedies as the ‘heart and soul of the constitution.’

Right to Constitutional Remedies
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Right to Constitutional Remedies

The Right to Constitutional Remedies provides-

  • The right to approach the Supreme Court of India by appropriate proceedings to get any of the fundamental rights restored in case of their violation.
  • The Supreme Court shall have the powers to issue orders or writs and give directives to the government for the enforcement of the fundamental rights. The writs issued by the Supreme Court include Habeas Corpus, Mandamus, Prohibition, Quo Warranto, and Certiorari. 
  • The Parliament of India can empower any other court to issue directions, writs (of all kinds mentioned earlier), and orders. However, this could be done without prejudice to the above powers conferred on the Supreme Court. ‘Any other court’ here does not include high courts because Article 226 has already conferred these powers on the high courts.
  • The right to move to the Supreme Court shall not be suspended, except as otherwise provided for by the constitution.

The constitution of India provides that the President of India can suspend the right to move to any court for the enforcement of fundamental rights during a national emergency. This provision is provided in Article 359 of the constitution.

The Supreme Court of India has ruled that the Right to Constitutional Remedies is included in the Basic Structure of the Constitution. So, the Right to Constitutional Remedies cannot be taken away from the people by the legislature even through an amendment to the constitution.

Right to Constitutional Remedies
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Types of Writs

The Supreme Court of India has the power to issue writs, given in article 32. Similarly, High Courts also have the power to issue writs, given in article 226 of the constitution. And the Parliament of India also has powers to empower any other court to issue writs. However, such provision hasn’t been made so far. Till 1950, only the high courts of Calcutta, Bombay, and Madras had the powers to issue writs, but after the enforcement of the constitution in 1950, all the high courts in India were empowered to issue writs under Article 226.

Right to Constitutional Remedies
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Different types of writs issued by Supreme Court and High Court:

1) Habeas Corpus

The writ of Habeas Corpus means that the court orders the arrested person to be presented before it. After that, the court can examine the legality of the detention and its cause. If the court finds that the manners or grounds of arrest are not lawful or satisfactory, then the court can set free an arrested person. The writ can be issued against any public authority or any private individual.

However, there are also some cases where the writ of Habeas Corpus cannot be issued, such as-

  • When the detention is lawful
  • The proceeding is for the contempt of a legislature or court
  • Detention is by a competent court
  • Detention is outside the jurisdiction of the court

2) Mandamus 

The writ of Mandamus is issued when the court finds that a public official has failed or refused to perform his legal duty and is, thereby, infringing on the right of an individual. The word ‘mandamus’ means ‘we command’, hence, the court commands any public officer to perform his legal duty.

Cases, where the writ of Mandamus cannot be issued, are-

  • Mandamus cannot be issued against any private individual or body
  • It cannot be issued against the President of India and the governors of the states
  • Against the chief justice of a high court
  • It cannot be issued to enforce any departmental instruction that doesn’t contain any statutory force.
  • For the enforcement of any contractual obligation
  • When the duty isn’t mandatory, but rather discretionary

3) Prohibition

Right to Constitutional Remedies
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The writ of Prohibition can be issued only by a higher court (High Court or Supreme Court) when a lower court or any tribunal has considered a case going beyond its jurisdiction. The word ‘prohibition’ means ‘to forbid’. Hence, through a writ of prohibition the High Court or Supreme Court prohibits the lower courts from exceeding its jurisdiction. The writ of prohibition can be issued only against a judicial or quasi-judicial body.

Writ of Prohibition cannot be issued against-

  • private institutions or individuals
  • administrative authorities
  • legislative bodies

4) Quo Warranto

The writ of Quo Warranto is issued when the court finds that a particular person holding an office, is not entitled to hold that office. The word quo-warranto means ‘by what authority or warrant’. Hence, by issuing this writ, the court restricts the person from acting as an officeholder. This writ can only be issued in case of a substantive and permanent public office established by a statute or by the Constitution of India.

Writ of Quo Warranto cannot be issued against-

  • Private office
  • Ministerial Office

5) Certiorari 

The writ of certiorari is issued when the court orders a lower court or any other authority to transfer a matter pending before it to the higher authority or higher court. The word certiorari means ‘to be informed.’ The writ of certiorari can be issued against any judicial, quasi-judicial authority and against any administrative authority.

The writ of Certiorari cannot be issued against-

  • Private individuals or body
  • Legislative bodies
Other features of the Right to Constitutional Remedies
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Article 32 constitutes the Supreme Court of India as the guarantor and defender of fundamental rights, as an individual can appeal directly to the Supreme Court.

However, only the ‘fundamental rights,’ as guaranteed by the Constitution of India can be enforced under the Right to Constitutional Remedies, and not any non-fundamental rights, customary rights, statutory rights, etc. Article 32 can only be invoked when there is a question of any fundamental right.

As Article 226 provides the powers to the High Courts to issue orders, directions, and writs of all kinds, so, in case of violation of any fundamental right, a person can move to either the Supreme Court of India or any of the High Courts.

Supreme Court also ruled that the aggrieved party should move first to the High Court, and then to the Supreme Court.

Important writs issued by the Supreme Court

Habeas Corpus

Kanu Sanyal v. District Magistrate, Darjeeling & ORS.

In this case, the Supreme Court of India issued the writ of Habeas Corpus, ordering the authorities to present Kanu Sanyal (Indian Communist politician) before it, who was detained and kept in Vishakhapatnam, Andhra Pradesh. However, due to certain unfortunate circumstances, it was difficult to present Kanu Sanyal to Delhi. So, the Supreme Court stated that the physical presence of the detained person in question isn’t necessary. The court can examine the legality of the detention without the physical presence of the detained person.

Mandamus

C.G. Govindan v. State of Gujarat 

In this case, the Chief Justice of the High Court refused to issue a writ of Mandamus against the governor to give approval of the fixation of salaries of the court staff. Hence, it was reaffirmed that the court can not issue a writ of Mandamus against the Governors of the state or the President of India.

Prohibition

East India Commercial Co. Ltd v. Collector of Customs

In this case, a higher court issued a Writ of Prohibition, which prohibited an inferior tribunal from continuing with the proceedings, as the higher court stated that the case was beyond the jurisdiction of the tribunal.

Quo Warranto

Jamalpur Arya Samaj v. Dr. D Ram

In this case, the court denied the writ of Quo Warranto, on the grounds that it cannot be issued against any private office, and against a non-substantive office.

Certiorari 

Surya Dev Rai v. Ram Chander Rai & Ors. 

In this case, the Supreme Court ruled and reaffirmed the scope of the writ of Certiorari, as the Supreme Court ruled that the writ of Certiorari can only be issued against any inferior court, and not against any equal or higher court.

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