5 WRITS issued for Individual Fundamental Rights protection
Part 3 of Indian
Constitution deals with Fundamental rights which is basic
rights given to Indian citizen and cannot be snatched by State. Article 12 to
Article 35 includes various Fundamental Rights which are mentioned below:
1. Article 14 to 18 relates to Right to Equality
2. Article 19 to 22 relates to Right to Freedom
3. Article 23 to 24 relates to Right against Exploitation
4. Article 25 to 28 relates to Right to freedom of religion
5. Article 29 & Article 30 relates to Cultural and Educational rights
6. Right to property (Article 31) which was removed by 44th Amendment on 1978.
[State includes the following:
a. Government of India as executive and Parliament of India as legislative Organs of the Union Government.
b. State Government is executive and States Legislature is legislative Organs of State government.
c. All local authorities that are municipalities, Panchayats, district boards etc.
d. All other Statutory or non-statutory authorities like ONGC, SAIL, LIC etc.]
Article 32
B.R.
Ambedkar has even called this Article as “The
Heart and Soul of the Constitution”
Under Article 32, Individual’s can approach Supreme Court if any of their FR is being violated. It also empowers Supreme Court to issue 5 Kinds of WRITS for the protection of FRs. Because of this features of Article 32, the Supreme Court is known as “Protector or Guarantor of FRs”.
Article 226
The
powers which are vested under Article 32, exactly same powers are also given
under Article 226 where Individual can approach to High Court.
Both Article 32 and Article 226 provide the issuance of WRITS but there are 2 major differences between these Articles.
1) The WRITS issuing power under Article 32 is only limited to the protection of FRs where as under Article 226, WRITS can be issued for “any other purpose” in addition to FRs. For example, a WRIT against the decision of an administrative tribunal
2) As Article 32 falls under PART III of the Constitution, this Constitutional remedy is a FRs whereas the remedy under Article 226 is not a FR
Note: Individual can approach directly to Supreme Court surpassing High Court to protect Rights as there is no rule that one need to first approach High Court but Individual have to explain the reason for not approaching 1st to High Court.
5 WRITS
issued by Supreme Court for the protection of FRs of the Individuals under
Article 32 (Right to Constitutional remedies)
1. HABEAS CORPUS: Habeas denotes “Have
us” and Corpus denotes “body”. Habeas Corpus means “To produce body”. This
is the most powerful and most used writs.
Say if the state illegally detains a person, then such individual by himself- or through his relatives or friends can use the WRIT of Habeas Corpus for the release of that person.
Whenever this WRIT is used, Supreme Court or High Court asks the Detaining Authority about the basis through which they have detain an Individual. If the basis is found not to be reasonable, then the detention ends and the individual is released with immediate effect.
Ref. Case Law: Rudul Shah Vs. State of Bihar – Where a person was kept in prison for an extra 14 years despite he had already completed his period of detention - In this Case, using Writ of Habeas Corpus, that person was immediately released and additionally was given Exemplary Damages.
So Writ of Habeas Corpus is used to release/demand production of person who is illegally detained.
The Writ of Habeas Corpus cannot be used in the following 4 Conditions:
- Detention is lawful
- Contempt of Court
- Detention which is outside the Jurisdiction of the Court
- Detention is by a Competent Court.
2. QUO-WARRANTO- It means ‘By what Authority’.
By using this Writ,
Courts can question any public Officer that by what authority the public Office
have been assumed. If the Officer’s Title is found to be defective, then he has
to vacate the Office.
3. MANDAMUS- It means “WE COMMAND” This Writ is used on any Statutory, Non-Statutory, University, Tribunals, etc. and command these authorities to perform their Public duty.
Court can command a public official to perform his public duty through this Writ.
Ref Case Law: Gujarat State Financial Corporation vs Lotus Hotels- The financial Corporation had an agreement with the Lotus Hotels that they will release the funds so that Lotus Hotel can complete their construction work. Later, Gujarat State Financial Corporation refused to release the fund. So Lotus Hotels approach the Gujarat High Court.
Gujarat High Court by using the Writs of Mandamus directs the Authority to perform the Public duty which it promised to perform.
(Note: There should be public duty before applying to Writs of Mandamus)
4.
CERTIORARI-It
means “To be Certified’.
Through this Writ, Supreme Court & High Court command the Lower Courts to submit its records for the review. In the review it is checked whether the Lower Court Judgments are illegal or not. It can be illegal if it is excess of Jurisdiction, Lack of Jurisdiction, Jurisdiction is un-Constitutional, Violation of Principles of Natural Justice.
If the Lower Courts Judgments are found to be illegal, then they are quashed which means that their judgment has no value thereafter and is not to be followed
Ref: Case Law:-
- Gullapalli Nageswara Rao vs APSRTC
- A. K.KRAIPAK Vs. UNION OF INDIA
In both of this case, Writ of Certiorari was applied and their Lower Court judgments were held to be illegal and therefore quashed.
5. PROHIBITION- It means ‘to forbid”. It is in line with Certiorari and not much different from Writs of Certiorari
It relates to a statement “Prevention is better than Cure”-The difference that exists between Prevention and Cure, the same difference is there between Prohibition and Certiorari. As such, Prohibition relates to Prevention and Certiorari relates to Cure.
As stated earlier, if an illegal judgment is announced then to cure or rectify the mistake, Supreme Court or High Court as the case may quash the decision using Writ of Certiorari.
But in order to prevent the mistake before judgment is announced, and then Writ of Prohibition is used.
So Writ of Prohibition can
be used only till Lower Court has not announced the Judgment
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