Right to Constitutional Remedies – Article 32 – UPSC Notes
Within Part III of the Constitution, provisions for legal remedies safeguard citizens’ rights against violations by the State or other entities. This empowers Indian citizens to approach either the Supreme Court or High Courts to enforce these rights. Importantly, the State is prohibited from enacting laws contradicting these Fundamental Rights. Read more on the Right to Constitutional Remedies in our comprehensive article!
Fundamental Rights guarantee individuals equality, irrespective of race, color, caste, religion, birthplace, or gender. These rights, detailed in Articles 12 to 35 of the Indian Constitution, come with predefined punishments in case of infringement, to be determined by the judiciary.
Understanding Writs in India
A writ is a formal written order issued by the Supreme Court of India to provide constitutional remedies, safeguarding the fundamental rights of citizens from any violation.
Key points about writs in India:
- Article 32 empowers Parliament to authorize any other court to issue these writs.
- Before 1950, the authority to issue writs was limited to the High Courts of Calcutta, Bombay, and Madras.
- Article 226 extends the power to issue writs to all high courts across India.
- The idea of writs in India is adopted from English law, where they are referred to as ‘Prerogative writs’.
Understanding Writ Petition
A writ petition is essentially a formal request to the court for an extraordinary review, seeking the court’s intervention in a decision made by a lower court. In the Indian legal system, the authority to issue ‘prerogative writs’ is vested in both the Supreme Court and the High Courts of Judicature in all Indian states. The constitutional provisions about writs are outlined in the Constitution of India.
Types of Writs in India
The Constitution grants the Supreme Court and High Courts the authority to issue specific orders known as writs. The types of writs are:
- Habeas Corpus
- Certiorari
- Prohibition
- Mandamus
- Quo Warranto
Habeas Corpus
Habeas Corpus is a writ designed to safeguard the fundamental right to liberty of an individual against unlawful detention. When this writ is invoked, it directs a public official to present a detained person before the court and substantiate the reasons for their detention. It’s important to note that this writ cannot be issued in cases where the proceeding is related to contempt of a legislature or a court.
Certiorari
The writ of certiorari is issued to a lower court, directing the transfer of a case for review, typically to overturn the judgment of the lower court. The Supreme Court issues the writ of certiorari when a party challenges the decision made by the lower court. This writ is employed when the higher court deems it a matter of overjurisdiction or lack of jurisdiction.
It serves as one of the mechanisms through which the fundamental rights of citizens are upheld.
Prohibition
Prohibition is a writ issued by a higher court to a lower court, instructing it to refrain from proceeding in a particular jurisdiction. This occurs when the higher court believes that the case falls outside the jurisdiction of the lower court. The Writ of Prohibition can only be issued against judicial and quasi-judicial authorities. It serves as a mechanism to prevent legal proceedings from continuing in a jurisdiction where they are deemed inappropriate by the higher court.
Mandamus
The writ of mandamus is issued to direct a subordinate court, a government officer, or a corporation or institution to perform specific acts or duties.
Unlike Habeas Corpus, mandamus cannot be issued against a private individual.
The writ of mandamus can be employed to command the fulfillment of a task, or in some instances, it may necessitate the cessation of an activity.
Quo Warranto
Quo warranto is issued against a person who claims or usurps a public office. This writ allows the court to inquire ‘by what authority’ the person supports his or her claim.
Through this writ, the court investigates the legality of a person’s claim to a public office, preventing the unlawful assumption of such an office by an individual.
Suspension of Fundamental Rights
- During a National Emergency, as stipulated in Article 352, fundamental rights can be suspended.
- Specifically, during a National Emergency imposed due to war or external aggression, the six fundamental rights under Article 19 are automatically suspended, as outlined in Article 358.
- For the suspension of other rights, Article 359 includes a provision where a separate notification must be issued by the President.
- It’s important to note that the rights mentioned under Article 20 and 21 cannot be suspended under any circumstance.
- Fundamental Rights remain unaffected during Constitutional and Financial Emergencies; these emergencies do not impact the suspension of Fundamental Rights.
Status of Writs in Other Countries
- In countries like England and Wales, writs other than habeas corpus are considered discretionary remedies and have been referred to as prerogative orders since 1938.
- Writs like quo warranto and procedendo are now obsolete. Under the new Civil Procedure Rules 1998, their modified versions—quashing orders, mandatory orders, and prohibiting orders—are recognized.
- In the United States, mandamus has been replaced by injunction in the district courts. The Supreme Court of the United States issues certiorari, while other states’ supreme courts grant review.
FAQs on Right to Constitutional Remedies
FAQ 1: What are Fundamental Rights in India, and how are they safeguarded against violations?
Answer: Fundamental Rights in India, detailed in Articles 12 to 35 of the Constitution, guarantee equality to individuals regardless of factors like race, color, caste, religion, birthplace, or gender. Citizens can safeguard these rights by approaching either the Supreme Court or High Courts through legal remedies provided in Part III of the Constitution. The State is prohibited from enacting laws that contradict these Fundamental Rights, and predefined punishments for infringements are determined by the judiciary.
FAQ 2: What is a writ petition, and how does it relate to the legal system in India?
Answer: A writ petition is a formal request to the court for an extraordinary review, seeking the court’s intervention in a decision made by a lower court. In India, both the Supreme Court and High Courts have the authority to issue ‘prerogative writs’ through writ petitions. These writs serve as constitutional remedies safeguarding fundamental rights, as outlined in the Constitution of India.
FAQ 3: What are the types of writs in India, and how do they function?
Answer: The Constitution grants the Supreme Court and High Courts the authority to issue specific orders known as writs. The types of writs in India include Habeas Corpus, Certiorari, Prohibition, Mandamus, and Quo Warranto. Each writ serves a distinct purpose, such as safeguarding liberty, reviewing lower court judgments, prohibiting proceedings outside the jurisdiction, directing specific acts, and investigating claims to public office. These writs are essential mechanisms to uphold the fundamental rights of citizens.
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