M. Mohanapriya, 14 October, 2020
‘INJUSTICE ANYWHERE IS A THREAT TO JUSTICE EVERYWHERE’KING MARTIN LUTHER
Fundamental rights are those rights which are essential for intellectual, moral and spiritual development of individuals. Fundamental rights are divided into seven categories. Fundamental rights are protected and guaranteed by the Constitution of India.
There is a difference between fundamental and legal rights. For example, if your fundamental right is violated, you can directly move to the Supreme Court or the High Court. However, incase if your legal right is violated, you can move to the concerned authority or court as provided for in the relevant statue.
If any act of legislature or Executive takes away or limits any of the Fundamental Rights, you can challenge such laws of the Central or the State Government before the Court of Law.
Meaning of the Writ:-
A formal order under seal, issued in the name of sovereign, government, court, or other competent authority, enjoying the officer or other person to whom it is issued or addressed to do or refrain from some specified act.
In simple terms, writ is a formal written order issued by the government in the name of sovereign power to do particular thing.
The Article 32 and 226 give five types of writs called writ of habeas corpus, mandamus, prohibition, certiorari and quo-warranto.
Each of them has a different meaning and different implications. Principle of Res judicate applies to writs except writ of Habeas corpus.
Constitutional provisions regarding writ petition:-
- Article 32: The Article makes the Supreme Court has the guarantor and defender of fundamental rights. Any citizen aggrieved by the state can file a writ petition. Article 32 of the Indian Constitution states that “Remedies for enforcement of rights conferred by this part.
- The Indian Constitution guarantees a person the right to move the Supreme Court for the enforcement of fundamental rights guaranteed by Part III (Article 12-35) of the Constitution.
- It empowers the Supreme to issue direction or orders or writ petition in the nature of Habeas Corpus, Certiorari, Prohibition, Mandamus and Qua-warranto for the enforcement of fundamental rights.
- Without prejudice to the powers conferred on the Supreme Court by Clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause(2).
- The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.
- Article 226 is enshrined under Part V of the Constitution. It states that “Power of High Courts to issue certain writs for enforcement of Fundamental rights or for any other purposes. Article 226 is wider than Article 32. The Hon’ble Supreme Court has power to issue writs for enforcement of only Fundamental rights. However, High Court can issue writs for enforcement of Fundamental Rights as well as any other Legal Rights also. It cannot be suspended during emergency.
- Article 227 states that power of Superintendence over all courts by the High court (except a court formed under a law related to armed forces).
Habeas Corpus, that was derived from the Medieval Latin term which means ‘That you have the body’. It was originated from the English legal system. The writ of Habeas corpus is known as the great and efficacious writ petition in all manner of illegal confinement.
In simple terms, if a person is detained illegally or unlawfully, his relatives or friends can move to the High Court (under Article 226) or Supreme Court (under Article 32) directly by filling an application.
Any person on behalf of prisoner/detenu or the prisoner/detenu himself can file a writ petition of Habeas Corpus.
It is to secure release from any form of unlawful detention. After filling an application court examines the cause and legality of the detention. It is considered as a most valuable writ for personal liberty (bulwark of personal liberty). It also described as ‘A Great Constitution Privilege’.
The writ of habeas corpus can be issued against both public authorities as well as private individuals. Habeas corpus has certain limitations. It cannot be issued in the following cases.
- Detention is lawful.
- The proceeding is for contempt of a legislature or a court.
- Detention is by a competent court.
- Detention is outside the jurisdiction of the Court.
Article 22 of the Constitution provides four fundamental rights with respect to conviction. These include being informed of the grounds of arrest, to be defended by a legal practitioner of his choice, prevention detention laws and production before the nearest Magistrate within 24 hours of arrest of the person. In case failure to do so would entitle the arrested person to be released.
ALSO READ: “FREEDOM OF SPEECH”: UNRAVELING THE MYTH
Mandamus is a Latin word, which means ‘We Command’. It was first used by English Courts in the early Seventeenth century to the subordinate court, inferior tribunal, board or to any person for perform a public duty imposed by law in a proper manner.
Mandamus can be issued to any kind of authority in respect of any type of function – administrative, legislative, quasi-judicial, judicial. Mandamus is a command given by any High Court or Supreme Court to the lower courts to perform their public duty which imposed by law.
For example, when a body omits to decide a matter which it is bound to decide, it can be commanded to decide the same. Mandamus is called a ‘wakening call’ and it awakes the sleeping authorities to perform their duty.The writ of mandamus cannot be issued.
- Against a private individual or body
- To enforce departmental instruction that does not possess status
- When the duty is discretionary and not mandatory
- To enforce a contractual obligation
- Against the president of India or the state governors
- Against the chief justice of a high court acting in a judicial capacity.
Certiorari is derived from Latin word which means ‘to inform’. The writ of Certiorari means to be certified.
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 or tribunal to transfer the matter to it or to some authority for proper consideration.
There are various grounds on the basis of which the writ of certiorari is issued:
- Lack of jurisdiction.
- Excess of jurisdiction.
- Abuse of jurisdiction.
- Violation of the principle of natural justice.
- Error of law apparent on the face of record.
Writ of prohibition means to ‘forbid’ (negative connotation) or stop. It is commonly known as ‘Stay Order’.
Certiorari and Prohibition were issued only to judicial and quasi-judicial bodies. The writ of the Prohibition is issued to the inferior courts or tribunals;
- Proceeds to act in violation of rule of natural justice
- Proceeds to act without jurisdiction or excess to their jurisdiction
- Proceeds to act under a law which is ultra vires or unconstitutional
- Proceeds to act in contravention of Fundamental Rights.
A legal proceeding during which an individual’s right to hold an office or governmental privilege is challenged.The Quo-Warranto literally means ‘what is your authority’. To restrain a person from holding a public office which he is not entitled, Writ of quo warranto used to challenge public or corporate office.
For example, a person of 62 years has been appointed to fill a public office whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a writ of Quo-warranto against the person and declare the office vacant.
The necessary ingredients to be satisfied by the court before issuing writ petition is that the office in question must be public, created by the constitution or law and the person holding the office is not legally qualified to hold the office in clear infringements of provisions of the Constitution or the law.
Having the Right to Remedies is crucial to uphold the ideals of democracy, freedom, equality and liberty.Dr. B. R. Ambedkar, who was the chairman of the drafting committee called the Article 32 of the Indian Constitution, ‘The very soul of the Constitution and the very heart of it’. Because, it gives rights to people to move Supreme Court directly for enforcement of their Fundamental Rights.
Sunil Batra v. Delhi Administration
T.C. Basappa v. T.Nagappa and Another.
Black law Dictionary.
Very useful article ,got out line to my moot research , thanks 👍