RIGHTS TO CONSTITUTIONAL REMEDIES

In our Indian constitution, there are Fundamental Rights that grant individual equality in every aspect irrespective of race, color, caste, creed, sex, and place of birth. Part – III of the Indian Constitution provides for legal remedies that protect these fundamental rights of the Indian citizens.

Thus, Article 32 of the Indian Constitution gives the rights to the individual to move to the Supreme court to seek justice if their Fundamental rights are violated. The Supreme court has the power to issue certain writs that are habeas corpus, prohibition, mandamus, certiorari, and quo warranto. The right can only be suspended during the period of a national emergency.

Article 226 empowers the high courts to issue writ, to any person or authority, including the government ( an appropriate case), direction, orders or writs, including writs of habeas corpus, mandamus, prohibition, certiorari, and quo warranto. It is a constitutional right given to the citizens.

The court is not bound to issue these writs strictly as these writs were issued in English law. The Supreme Court has the power to issue writs only for the enforcement of fundamental rights whereas the High Court has the power to issue writs for enforcement of fundamental rights and also for any other purposes.

Dr. B.R. Ambedkar stated that :

“If I was asked to name any particular article in this constitution as the most important an article without which this constitution would be 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 and I am glad that the house has realized its importance”.

The Distinction between Article 32 and Article 226 –

1. Article 32 can be exercised for the enforcement of Fundamental rights only whereas Article 226 can be exercised not only for the enforcement of Fundamental rights but for “any other purpose”.

2. The power of the High court under Article 226 is wider than the power of the Supreme court under Article 32.

3. As Article 32 falls under part – III of the Indian Constitution, it is a fundamental right whereas Article 226 is not a fundamental right.

4. The Power to issue writs under Article 32 is mandatory for the Supreme court whereas The High court has discretionary power to issue writs under Article 226.

5. The Territorial jurisdiction of the High court under Article 226 is narrower than the Territorial jurisdiction of The Supreme court under Article 32.

Writs –

Writs are written order issued by the court to provide constitutional remedies for the protection of the Fundamental Rights of the citizen.

Types of Writs -

The enforcement of Article 32 and 226 can be done with the help of these 5 writs such as:-

· HABEAS CORPUS –

Habeas corpus means "to have a body". The writ is issued to produce a person who has been detained, whether in prison or in private custody, before a court and to release him if such detention is found illegal.

The person who can apply for the writ is the person who is illegally detained but in certain cases, an application of habeas corpus can be made by any person on behalf of the prisoner.

1. Rudal Shah v. State of Bihar [ AIR 1983 SC 1086] –

In this case, there is a person who had already completed his period of detention was still kept in prison for 14 years extra. Here writ of habeas corpus was used and he was immediately released and he was also given exemplary damages.

· MANDAMUS –

Mandamus means "you may have the body". Mandamus is an order from the Supreme court or High court to a lower court or tribunal or public authority to perform an act, which falls within its duty. This writ of command is issued by the Supreme court, High court when any government, corporation, or any public authority has to do a public duty but fails to do so.

2. Barada Kanta v. State of West Bengal [ AIR 1963 CAL 161]-

Writ of mandamus cannot be issued against a person or any private organization because they are not entrusted with a public duty.

· CERTIORARI –

Certiorari means "to be certified". The writ is issued by the Supreme court and the High court for repealing the orders of the inferior courts or tribunals.

3. State of Uttar Pradesh v. Mohmmad Noor [ AIR 1958 SC 86]-

In this case, the Supreme Court said that the certiorari is mainly issued to reform the mistakes related to the jurisdiction of subordinate courts or quasi-judicial bodies. In other words, it can be said that the writ is issued when the subordinate court or tribunal acts in absence of jurisdiction, beyond the jurisdiction, or fails to use its jurisdiction.

· PROHIBITION –

Prohibition means "to forbid or prevention is better than cure". The writ of prohibition is issued by the Supreme court or High court to the local courts to prevent them from proceeding with that case which does not fall under its jurisdiction.

4. S. Govinda Menon v. Union of India [AIR 1967 SC 1274]-

In this case, the Supreme Court held that the writ is issued in both cases where there is an excess of jurisdiction and where jurisdiction is absent.

· QUO – WARRANTO –

Quo – warranto means “by what authority ?”. The writ is issued when a person is to be retrained from holding a public office to which he is not entitled.

5. Jamalpur Arya Samaj Sabha v. Dr. D. Ram [AIR 1954 Pat 297]-

In this case, it was held that the High court refused to issue the writ of quo- warranto against the members of the working committee on the Bihar Arya Samaj Sabha, a private association.

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