Right to Constitutional Remedies [Article 32]


Part III of our Constitution provides for legal remedies for the protection of Fundamental Rights against their violation by the State or other institutions/individuals.

It entitles the citizens of India to move the Supreme Court or High Courts for the enforcement of these rights.

The State is forbidden from making any law that may be in conflict with the Fundamentals Rights.

The Constitution empowers the Supreme Court and High Courts to issue orders or writs as mentioned following:

 

HABEAS CORPUS

It is an order by the court to the state to produce the person physically before it justifies the confinement or release of the person.

The writ of habeas corpus can be issued against both public authorities as well as private individuals.

The writ, on the other hand, is not issued where the (a) detention is lawful, (b) the proceeding is for contempt of a legislature or a court, (c) detention is by a competent court, and (d) detention is outside the jurisdiction of the court.

 

MANDAMUS

It is a command or an order from a superior court to a subordinate court or tribunal or public authority to perform its duty in case it is not doing it.

The writ of mandamus cannot be issued

[1] against a private individual or body;

[2] to enforce departmental instruction that does not possess statutory force;

[3] when the duty is discretionary and not mandatory;

[4] to enforce a contractual obligation;

[5] against the president of India or the state governors; and

[6] against the chief justice of a high court acting in judicial capacity.

 

PROHIBITION

It is an order issued by the Superior Court to forbid a subordinate court or tribunal from proceeding with a case which is beyond its jurisdiction.

The writ of prohibition can be issued only against judicial and quasi-judicial authorities.

It is not available against administrative authorities, legislative bodies, and private individuals or bodies.

 

QUO WARRANTO

This writ is issued to restrain a person from acting in a public office to which he /she is not entitled.

It is issued by the court to enquire into the legality of claim of a person to a public office.

The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution.

It cannot be issued in cases of ministerial office or private office.

 

CERTIORARI

The term certiorari means “to be informed of what is going”.

It is an order to a lower court from a superior court to transfer the matter to it or to any other court for deciding the matter.

It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case.

It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.