A declaration of Fundamental Rights is meaningless unless there are effective judicial remedies for their enforcement. Article 32 for the enforcement of the Fundamental Rights by means of the specified writ of writs of the same nature. The purpose is to ensure observance of Rule of Law and prevent abuse or misuse of power. They are designed to ensure that each and every authority in the State, including the government, acts bona fide and within the limits of its powers and that when a court is satisfied that there is an abuse or misuse of power and its jurisdiction is invoked, it is incumbent on the court to afford Justice to the individual.The right to approach The Supreme Court for the enforcement of fundamental right under this Article is a fundamental right itself and can be invoked as against a private person. In other words, this Article empowers the Supreme Court as a protector of fundamental rights and interference by the Supreme Court as the sentinel on the qui ive to protect substrantum of fundamental rights, that is, Polity based on the rule of law and Democracy which are necessary for fundamental rights which are enumerated in Part III of the Constitution.
Writs under Article 226 of the Constitution
From the point of view of the writ jurisdiction, the High Courts did not enjoy a co-equal status in the pre-constitutional era. No High Court except, the High Courts of Calcutta, Madras and Bombay, had any inherent power to issue the prerogative writs. The three High Courts enjoyed this power as inheritors of the jurisdiction of their predecessors. Now every High Court has power to issue various writs under Article 226 of the Indian Constitution of India. The High courts have a parallel power under Article 226 to enforce the fundamental rights. Article 226 differs from Article 32 in that whereas Article 32 can be invoked only for the enforcement of Fundamental Rights, Article 226 can be invoked not only for the enforcement of Fundamental Rights but for any other purpose as well.This means that the Supreme Courts power under Article 32 is restricted as compared with the power of a High Court under Article 226, for, if an administrative action does not affect a Fundamental Right, then it can be challenged only in the High Court under Article 226, and not in the Supreme Court under Article 32. Another corollary to this difference is that a PIL (Public Interest Litigation) Writ Petition can be filed in Supreme Court under Article 32 only if a question concerning the enforcement of a fundamental right is involved. Under Article 226, a writ petition can be filed in a High court whether or not a Fundamental Right is involved.
Habeas corpus is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court order the custodian of the person, usually a prison official, to bring the prisoner to court, to determine if the detention is lawful. The writ of habeas corpus is known as “the great and efficacious writ in all manner of illegal confinement”,being a remedy available to the meanest against the mightiest. It is a summons with the force of a court order; it is addressed to the custodian (a prison official, for example) and demands that a prisoner be taken before the court, and that the custodian present proof of authority, allowing the court to determine whether the custodian has lawful authority to detain the prisoner. If the custodian is acting beyond his or her authority, then the prisoner must be released. Any prisoner, or another person acting on his or her behalf, may petition the court, or a judge, for a writ of habeas corpus. One reason for the writ to be sought by a person other than the prisoner is that the detainee might be held incommunicado. Most Civil Law jurisdictions provide a similar remedy for those unlawfully detained, but this is not always called habeas corpus. For example, in some Spanish-speaking nations, the equivalent remedy for unlawful imprisonment is the amparo de libertad (“protection of freedom”). Habeas corpus has certain limitations. Though a writ of right, it is not a writ of course.[Note 2] It is technically only a procedural remedy; it is a guarantee against any detention that is forbidden by law, but it does not necessarily protect other rights, such as the entitlement to a fair trial. So if an imposition such as internment without trial is permitted by the law, then habeas corpus may not be a useful remedy. In some countries, the writ has been temporarily or permanently suspended under the pretext of war or state of emergency.
Mandamus was introduced in India by the Letters Patent creating the Supreme Court in Calcutta in 1773. The Supreme Courts in the Presidency towns were empowered to issue the writ. In 1877, the Specific Relief Act substituted an order in the nature of mandamus in the place of the writ of mandamus for the purpose of “requiring any specific act to be done or forborne within the local limits of its ordinary civil jurisdiction by any person holding a public office.
Mandamus lies against authorities whose duty is to perform certain acts and they have failed to do so. Under following circumstances mandamus can be issued :
The applicant must have a legal right to the performance of a legal duty. It will not issue where to do or not to do an act is left to the discretion of the authority. It was refused where the legal duty arose from an agreement which was in dispute13. The duty to be enforced by a writ mandamus could arise by a provision of the Constitution14 or of a statute15 or of the common law.
The legal duty must be of a public nature. In The Praga Tools Corporation v. C.V. Imanual, A.l.R. 1969 S.C. 1306 and Sohanlal v. Union of India, A.I.R. 1957 S.C. 529: (1957) S.C.R. 738 the Supreme Court stated that mandamus might under certain circumstances lie against a private individual if it is established that he has colluded with a public authority.
It will not issue against a private individual to enforce a private right such as a contract17.Even though mandamus does not lie to enforce a contract inter partes, it will lie where the petitioner’s contractual right with a third party is interfered with by the State18. Mandamus will not issue to enforce departmental manuals or instructions not having any statutory force which do not give rise to any legal right in favour of the petitioner as in the cases of Raman & Ramanv. State of Madras, A.l.R. 1959 S.C. 694; State of Assam v. Ajit Kumar, A.l.R. 1965 S.C. 1196. However if the authority were under law obliged to exercise discretion, mandamus would lie to exercise it in one way or the other. Mandamus can be issued to compel an income-tax officer to carry out the instructions issued by Income-Tax Appellate Tribunal exercising its appellate power. Again it can be issued to a Municipality to discharge its statutory duty.
Literally, 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, tribunal or quasi judicial authority.
There are several conditions necessary for the issue of writ of certiorari .
There should be court, tribunal or an officer having legal authority to determine the question with a duty to act judicially.
Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or officer.
The order could also be against the Principles Of Natural Justice or the order could contain an error of judgment in appreciating the facts of the case.
The Writ of prohibition means to forbid or to stop and it is popularly known as ‘Stay Order’. This writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. The writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, or quasi judicial body prohibiting the latter from continuing the proceedings in a particular case, where it has no jurisdiction to try. After the issue of this writ, proceedings in the lower court etc. come to a stop.
Difference between Prohibition and Certiorari: While the writ of prohibition is available during the pendency of proceedings, the writ of certiorari can be resorted to only after the order or decision has been announced. Both the writs are issued against legal bodies.
The word Quo-Warranto literally means “by what warrants?” or “what is your authority”?
It is a writ issued with a view to restrain a person from holding a public office to which he is not entitled. The writ requires the concerned person to explain to the Court by what authority he holds the office. If a person has usurped a public office, the Court may direct him not to carry out any activities in the office or may announce the office to be vacant. Thus High Court may issue a writ of quo-warranto if a person holds an office beyond his retirement age.
Conditions for issue of Quo-Warranto:
The office must be public and it must be created by a statue or by the constitution itself.
The office must be a substantive one and not merely the function or EMPLOYMENT of a servant at the will and during the pleasure of another.
There must have been a contravention of the constitution or a statute or statutory instrument, in appointing such person to that office.
Importance of Writs
“If I was asked to name the particular Article in this Constitution as the most important without which this Constitution would be a nullity, I could not refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it …….. This in my judgment is one of the greatest safeguards that can be provided for the safety and security of the individual.“- Dr.Ambedkar.
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The Right to Constitutional Remedies is a fundamental right guaranteed by the Constitution of India. It is a right to approach the courts for the enforcement of any of the fundamental rights guaranteed by the Constitution. The right to constitutional remedies is a very important right, as it ensures that the fundamental rights of the people are protected.
The Right to Constitutional Remedies is guaranteed by Article 32 of the Constitution of India. Article 32 states that “The right to move any High Court by petition for the enforcement of the rights conferred by this Part is guaranteed”. This means that any person who feels that his or her fundamental rights have been violated can approach the High Court for relief.
The scope of the Right to Constitutional Remedies is very wide. It includes the right to approach the courts for the enforcement of any of the fundamental rights guaranteed by the Constitution. It also includes the right to approach the courts for the enforcement of any other right that is guaranteed by the Constitution or by any law.
The Right to Constitutional Remedies can be enforced by filing a petition in the High Court. The petition must be filed in the High Court of the state in which the petitioner resides or in the High Court of Delhi. The petition must be accompanied by an affidavit stating the facts of the case and the relief that is being sought.
Remedies for Violation of Fundamental Rights
The remedies that are available for the violation of fundamental rights are:
A writ of habeas corpus
A writ of mandamus
A writ of certiorari
A writ of prohibition
A writ of quo warranto
A writ of injunction
A writ of habeas corpus is a writ that is issued to a person who is being held in custody. The writ orders the person who is holding the prisoner to bring the prisoner before the court and to show why the prisoner is being held.
A writ of mandamus is a writ that is issued to a public official ordering the official to perform a duty that is imposed on the official by law.
A writ of certiorari is a writ that is issued by a higher court to a lower court ordering the lower court to send up the record of a case for review.
A writ of prohibition is a writ that is issued by a higher court to a lower court ordering the lower court to stop hearing a case.
A writ of quo warranto is a writ that is issued to a person who is holding a public office ordering the person to show by what authority the person is holding the office.
A writ of injunction is a writ that is issued by a court ordering a person to do or not to do something.
Remedies for Violation of Other Rights
The remedies that are available for the violation of other rights are:
Damages
Specific performance
Injunction
Restitution
Declaratory relief
Damages are a monetary award that is given to a person who has been injured by the wrongful act of another person.
Specific performance is a remedy that is available to a person who has entered into a contract with another person and the other person has breached the contract. Specific performance orders the breaching party to perform the contract.
Injunction is a remedy that is available to a person who is being harmed by the wrongful act of another person. An injunction orders the person who is causing the harm to stop causing the harm.
Restitution is a remedy that is available to a person who has been deprived of property by the wrongful act of another person. Restitution orders the person who has deprived the other person of property to return the property to the other person.
Declaratory relief is a remedy that is available to a person who wants a court to declare the rights of the parties in a dispute. Declaratory relief does not order the parties to do anything. It simply declares the rights of the parties.
The Right to Constitutional Remedies is a very important right that ensures that the fundamental rights of the people are protected. The remedies that are available for the violation of fundamental rights and other rights are very effective in protecting the rights of the people.
What is the Right to Constitutional Remedies?
The Right to Constitutional Remedies is the right of individuals to seek redress from the courts for violations of their constitutional rights. This right is guaranteed by Article 32 of the Indian Constitution, which states that “No person shall be deprived of his life or personal Liberty except according to Procedure Established by Law.”
What are the different types of constitutional remedies?
There are two main types of constitutional remedies: writs and orders. Writs are orders issued by the courts to compel a person or authority to do something or to refrain from doing something. Orders are directions issued by the courts to settle a dispute between two parties.
What are the different types of writs?
There are five main types of writs: habeas corpus, mandamus, certiorari, quo warranto, and prohibition. Habeas corpus is a writ that orders a person to be brought before a court to determine whether they are being held lawfully. Mandamus is a writ that orders a public authority to perform a duty that it is legally required to perform. Certiorari is a writ that orders a lower court to send up the record of a case for review by a higher court. Quo warranto is a writ that challenges the authority of a person to hold a public office. Prohibition is a writ that orders a lower court to stop hearing a case that it does not have jurisdiction to hear.
What are the different types of orders?
There are many different types of orders that can be issued by the courts. Some common types of orders include injunctions, declaratory orders, and specific performance orders. Injunctions are orders that prohibit a person from doing something. Declaratory orders are orders that declare the rights of the parties to a dispute. Specific performance orders are orders that require a party to perform a contract.
How can I seek constitutional remedies?
If you believe that your constitutional rights have been violated, you can file a petition in the High Court or the Supreme Court. The petition must set out the facts of the case and the constitutional rights that you believe have been violated. The court will then decide whether to issue a writ or order.
What are the benefits of seeking constitutional remedies?
There are several benefits to seeking constitutional remedies. First, constitutional remedies can provide a quick and effective way to vindicate your constitutional rights. Second, constitutional remedies can be used to challenge laws and actions that violate your constitutional rights. Third, constitutional remedies can help to protect your fundamental rights and freedoms.
What are the risks of seeking constitutional remedies?
There are also some risks associated with seeking constitutional remedies. First, constitutional remedies can be expensive and time-consuming. Second, there is no guarantee that you will be successful in your case. Third, if you are unsuccessful, you may be ordered to pay the costs of the other party.
What should I do if I am considering seeking constitutional remedies?
If you are considering seeking constitutional remedies, you should speak to a lawyer to discuss your case. A lawyer can help you to determine whether you have a valid claim and can advise you on the best way to proceed.
Sure. Here are some MCQs on the following topics:
The Preamble to the Constitution of India states that India is a “sovereign, socialist, secular, democratic republic”. Which of the following is not one of the features of the Indian Constitution? (A) Sovereign (B) Socialist (C) Secular (D) Democratic
The President of India is elected by an electoral college consisting of: (A) Members of the Lok Sabha and the Rajya Sabha (B) Members of the Lok Sabha, the Rajya Sabha, and the Legislative Assemblies of the States (C) Members of the Lok Sabha, the Rajya Sabha, and the Legislative Assemblies of the States, and the Legislative Councils of the States (D) Members of the Lok Sabha, the Rajya Sabha, and the Legislative Assemblies of the States, and the Legislative Councils of the States, and the National Capital Territory of Delhi and the Union Territory of Puducherry
The Supreme Court of India is the highest court in the country. It consists of: (A) The Chief Justice of India and 25 other judges (B) The Chief Justice of India and 30 other judges (C) The Chief Justice of India and 35 other judges (D) The Chief Justice of India and 40 other judges
The Parliament of India consists of: (A) The President of India and the Council of Ministers (B) The Lok Sabha and the Rajya Sabha (C) The Lok Sabha, the Rajya Sabha, and the President of India (D) The Lok Sabha, the Rajya Sabha, and the Vice President of India
The Union Executive consists of: (A) The President of India, the Vice President of India, and the Council of Ministers (B) The President of India, the Vice President of India, and the Prime Minister (C) The President of India, the Prime Minister, and the Council of Ministers (D) The President of India, the Prime Minister, and the Chief Justice of India
The Union Legislature consists of: (A) The President of India and the Council of Ministers (B) The Lok Sabha and the Rajya Sabha (C) The Lok Sabha, the Rajya Sabha, and the President of India (D) The Lok Sabha, the Rajya Sabha, and the Vice President of India
The Union Judiciary consists of: (A) The Supreme Court of India and the High Courts (B) The Supreme Court of India and the Subordinate Courts (C) The Supreme Court of India, the High Courts, and the subordinate courts (D) The Supreme Court of India, the High Courts, and the Tribunals
The Finance Commission is appointed by the: (A) President of India (B) Prime Minister of India (C) Speaker of the Lok Sabha (D) Chief Justice of India
The Election Commission is appointed by the: (A) President of India (B) Prime Minister of India (C) Speaker of the Lok Sabha (D) Chief Justice of India