Right to constitutional Remedies( writs)

Writs under ARTICLE 32 of the Constitution

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.

Different types of Right to constitutional Remedies in Indian constitution

Habeas Corpus

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

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.

Certiorari

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.

Prohibition

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.

Quo-Warranto

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.

The right to constitutional remedies is a fundamental right that is guaranteed to all citizens of the United States. This right allows individuals to seek redress from the government when their constitutional rights have been violated. There are a number of different constitutional remedies that are available, including habeas corpus, mandamus, prohibition, certiorari, and quo warranto.

Habeas corpus is a writ that is used to bring a person before a court to determine whether they are being held lawfully. The writ of habeas corpus is a powerful tool that can be used to challenge the legality of a person’s detention. In order to obtain a writ of habeas corpus, the petitioner must first file a petition with the court. The petition must state the grounds for the request, such as the fact that the petitioner is being held without probable cause or that the petitioner is being held in violation of their constitutional rights. The court will then review the petition and decide whether to issue a writ of habeas corpus. If the court issues a writ of habeas corpus, the petitioner will be brought before the court and the court will determine whether the petitioner is being held lawfully. If the court finds that the petitioner is being held unlawfully, the court will order the petitioner’s release.

Mandamus is a writ that is used to compel a public official to perform a duty that is required by law. The writ of mandamus is a powerful tool that can be used to ensure that the government complies with the law. In order to obtain a writ of mandamus, the petitioner must first file a petition with the court. The petition must state the grounds for the request, such as the fact that the public official has failed to perform a duty that is required by law. The court will then review the petition and decide whether to issue a writ of mandamus. If the court issues a writ of mandamus, the public official will be ordered to perform the required duty.

Prohibition is a writ that is used to prevent a lower court from hearing a case. The writ of prohibition is a powerful tool that can be used to ensure that the government does not violate the rights of individuals. In order to obtain a writ of prohibition, the petitioner must first file a petition with the court. The petition must state the grounds for the request, such as the fact that the lower court does not have jurisdiction to hear the case or that the lower court is about to issue a decision that will violate the petitioner’s constitutional rights. The court will then review the petition and decide whether to issue a writ of prohibition. If the court issues a writ of prohibition, the lower court will be prohibited from hearing the case.

Certiorari is a writ that is used to review the decision of a lower court. The writ of certiorari is a discretionary writ, which means that the Supreme Court is not required to grant certiorari in every case. In order to obtain a writ of certiorari, the petitioner must first file a petition with the Supreme Court. The petition must state the grounds for the request, such as the fact that the lower court’s decision was in error or that the lower court’s decision is likely to have a significant impact on other cases. The Supreme Court will then review the petition and decide whether to grant certiorari. If the Supreme Court grants certiorari, the lower court’s decision will be reviewed by the Supreme Court.

Quo warranto is a writ that is used to challenge the authority of a person or entity to hold a public office or to exercise a public function. The writ of quo warranto is a powerful tool that can be used to ensure that the government does not violate the rights of individuals. In order to obtain a writ of quo warranto, the petitioner must first file a petition with the court. The petition must state the grounds for the request, such as the fact that the person or entity does not have the authority to hold the public office or to exercise the public function. The court will then review the petition and decide whether to issue a writ of quo warranto. If the court issues a writ of quo warranto, the person or entity will be ordered to cease holding the public office or exercising the public function.

What is a writ?

A writ is a formal order issued by a court of law. It is used to compel a person or entity to do something, or to refrain from doing something.

What are the different types of writs?

There are many different types of writs, but some of the most common include:

A writ of habeas corpus, which is used to challenge the legality of someone’s detention.
A writ of mandamus, which is used to order a government official to take a certain action.
A writ of certiorari, which is used to ask a higher court to review a decision made by a lower court.
A writ of injunction, which is used to prevent someone from doing something.

What are the requirements for filing a writ?

The requirements for filing a writ vary depending on the type of writ and the jurisdiction in which it is being filed. However, some general requirements include:

The person filing the writ must have standing to sue. This means that they must have suffered some kind of injury or harm.
The writ must be filed in the proper court.
The writ must be filed within the statute of limitations, which is the time limit for filing a lawsuit.

What are the benefits of filing a writ?

Filing a writ can be a powerful way to protect your rights. If you believe that your rights have been violated, you may be able to file a writ to seek relief. Writs can be used to challenge the legality of government action, to compel government officials to take action, and to prevent someone from doing something.

What are the risks of filing a writ?

Filing a writ can also be risky. If you lose your case, you may be ordered to pay the other party’s legal fees. Additionally, filing a writ can be expensive and time-consuming.

What should I do if I am considering filing a writ?

If you are considering filing a writ, you should speak with an attorney to discuss your Options. An attorney can help you determine whether you have a valid claim and can represent you in court.

Sure, here are some MCQs without mentioning the topic Right to constitutional Remedies( writs):

Which of the following is not a fundamental right?
(A) Right to Equality
(B) Right to freedom
(C) Right to Property
(D) Right to constitutional remedies
Which of the following is not a writ?
(A) Habeas corpus
(B) Mandamus
(C) Certiorari
(D) Quo warranto
Which of the following is not a power of the Supreme Court?
(A) The power to strike down laws that are unconstitutional
(B) The power to issue writs
(C) The power to appoint judges to the High Courts
(D) The power to decide disputes between the Centre and the States
Which of the following is not a power of the High Courts?
(A) The power to strike down laws that are unconstitutional
(B) The power to issue writs
(C) The power to appoint judges to the lower courts
(D) The power to decide disputes between the Centre and the States
Which of the following is not a right guaranteed by the Constitution?
(A) The right to life and Liberty
(B) The right to equality
(C) The right to freedom
(D) The right to property
Which of the following is not a limitation on the fundamental rights?
(A) The right to freedom of speech can be restricted in the interest of the Sovereignty and Integrity of India
(B) The right to freedom of religion can be restricted in the interest of public order, morality and Health
(C) The right to property can be taken away by the State for a public purpose, subject to payment of compensation
(D) The right to equality can be restricted in the interest of the weaker sections of Society
Which of the following is not a fundamental duty?
(A) To abide by the Constitution and respect its ideals and institutions
(B) To defend the country and render national service when called upon to do so
(C) To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities
(D) To protect and improve the natural Environment including forests, lakes, rivers and wildlife and to have compassion for living creatures
Which of the following is not a directive principle of state policy?
(A) To secure justice, social, economic and political, for all citizens
(B) To promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life
(C) To provide adequate means of livelihood for all citizens
(D) To prohibit the consumption of intoxicating drinks and drugs which are injurious to health
Which of the following is not a power of the President?
(A) The power to appoint the Prime Minister and other members of the Council of Ministers
(B) The power to dissolve the Lok Sabha
(C) The power to declare war and peace
(D) The power to issue ordinances when Parliament is not in session
Which of the following is not a power of the Parliament?
(A) The power to make laws
(B) The power to levy taxes
(C) The power to borrow Money on the credit of the Union
(D) The power to declare war and peace

I hope these MCQs are helpful!