The Constitution of India guarantees fundamental rights to all citizens. The citizens can file a writ petition to enforce these fundamental rights in case of violation or abridgement of fundamental rights. This article will discuss what fundamental rights are, what you mean by the right to constitutional remedies, what writs are, writ petitions, and the different types of writs.
What are fundamental rights?
Part III, Article 12-35 of the Indian Constitution guarantees fundamental rights for all citizens. The Constitution has guaranteed fundamental rights to protect the people’s interests and ensure all equality, justice, and fairness. Fundamental rights are the right to equality, right to freedom, right against exploitation, right to freedom of religion, cultural and educational rights, and right to constitutional remedies.
The Constitution’s declaration of these fundamental rights is meaningless if not implemented and enforced successfully. Therefore, the Constitution has put forward a mechanism where citizens can enforce these rights under Articles 32 and 226 of the Indian Constitution. Furthermore, citizens can exercise their right to constitutional remedies guaranteed by the Constitution if any of their fundamental rights are violated.
What do you mean by the right to constitutional remedies?
Under Article 32 of the Indian Constitution, any individual whose right has been violated can go to the Supreme Court for enforcement of the Fundamental Right. Article 32 is referred to as the “Soul and heart of the Constitution” by Dr B.R. Amedkar because this article has granted remedies for violating fundamental rights, without which the Constitution would be meaningless and void.
Now let us discuss the remedies provided under Article 32.
The remedies for enforcement of fundamental rights under Article 32 are as follows:
1. The citizens are granted the right to enforce fundamental rights through the Supreme Court.
2. The Supreme Court can issue any orders, instructions, directives, or writs as the case may be for enforcing fundamental rights.
3. The Parliament can, through a statute, allow other courts to exercise the powers granted under clauses (1) and (2). Provided they are within the jurisdiction of the respective court.
4. The freedom granted under this article shall not be suspended except as otherwise provided. (eg. In case of emergency).
Article 226, Constitution of India allows the individual whose rights are violated to file a petition before the Court for enforcement of Fundamental Rights. The High Court has the power to issue any order, directives or writs as the case may be, for the enforcement of fundamental rights – if the person or authority’s place or residence is beyond the territorial jurisdiction of the High Court or if the cause of action has occurred totally or partially within the High Court’s territorial jurisdiction.
Article 226 of the Constitution restricts the jurisdiction of the High Court to a particular geographical area.
It also states that the High Court cannot issue any adverse order ex-parte, thereby protecting the individuals from any negative consequences of ex-parte directions or orders of the Court.
The authority of the High Court under Article 226 is identical to that of the Supreme Court under Article 32 of the Constitution.
The individual can choose to file a writ petition before the High Court or Supreme Court. It is not necessary to apply to the High Court and then file an appeal to the Supreme Court.
What is a writ?
A writ is a written order of the Court to provide constitutional remedies for violation of fundamental rights of the citizen. The High Court and the Supreme Court have the power to issue the writ under Articles 32 and 226 of the Indian Constitution. However, the Parliament may empower other courts to issue writs. Writs in India were borrowed from the English Law, known as ‘Prerogative writs.’
What is a Writ Petition?
A writ petition is a petition filed for extraordinary review, seeking the Court to interfere in a lower court’s decision.
What are the types of writs?
The Constitution of India has empowered the Supreme Court and the High Court to issue the following writs:
- Habeas Corpus
- Quo Warranto
1. Habeas Corpus
Habeas Corpus is a Latin word meaning ‘you have the body.’ It is enforced to protect the Fundamental rights of liberty of a person unlawfully detained. Under this writ, the Court can order or command a public officer or any person to deliver or produce the arrested person before the Court and give a valid reason for the person’s detention. However, this writ cannot be issued in case of contempt of Court or legislature, lawful detention, outside the jurisdiction of the Court, or detained by the competent Court.
Certiorari means ‘to be certified or informed.’ Certiorari is an order directing the lower court to transfer the case for review. Here, the higher Court has the power to control the lower Court to transfer the case from the lower Court and bring it before itself. This writ is issued if the Court finds that the lower Court has acted beyond its jurisdiction, lacks jurisdiction, or has error of law. Certiorari can be issued not only against judicial and quasi-judicial authorities but also against administrative authorities. However, it cannot be issued against the legislative bodies and private individuals or bodies.
Prohibition means ‘to forbid’. Prohibition writ is an order of the higher Court directing the lower Court to act within the jurisdiction. It is the prerogative of the Court to decide whether the case falls outside the lower Court’s jurisdiction. The Prohibition writ can be issued only against judicial and quasi-judicial authorities. The writ of Prohibition cannot be given against legislative bodies, administrative authorities, or private individuals or bodies.
Mandamus is derived from the Latin word meaning ‘We Command.’ This writ is issued to the sub-ordinate courts, a corporation, a government officer, or other institution directing them to perform their duties or acts or complete the assigned task. Mandamus cannot be issued against any private individual, unlike Habeas Corpus. Writ of Mandamus can not be issued – if the work is not mandatory but discretionary or to enforce any contractual obligation. The Mandamus writ cannot be issued against the Chief Justice of the High Court, Indian President, or State Government.
Quo-Warranto means ‘by what authority or warrant’. The Court issues a writ against a person who usurps or claims a public office to show by what authority the person supports their claim. In this writ, the Court inquires into the legality of the claim made by the person to a public office. This writ prevents illegal claims on the public office by any person. The writ of Quo-Warranto can be issued only in case of substantive public office of a permanent character created by the Constitution or statute. It cannot be issued against any private or ministerial office.
Fundamental rights are guaranteed by The Constitution of India to every citizen. These fundamental rights cannot be taken away by anyone except in case of emergency. To enforce these fundamental rights, the Constitution has provided Constitutional Remedies. Any individual whose fundamental rights have been violated can file a petition under Article 32 or 226 before the Supreme Court or High Court. The Constitution has empowered the Supreme Court and High Court to issue any order, writ, or directions for the enforcement of fundamental rights.