ABSTRACT:
The concept of fundamental rights is to give equal status to every citizen in the country. Fundamental rights are the primary rights of every individual. These rights are categorically availed by both citizens and non-citizens of the country. There are six fundamental rights under which the right to constitutional remedies help the citizens to seek justice from the court of law, if any of the rights are violated or if in any circumstance the rights are denied. For example, if a person’s property has illegally encroached, he or she can request the court of law his legal right to avail the property through “public interest litigation”. To ensure such safeguard of rights, the constitution have created constitutional remedies, under which the “writs” are included. The five writs issued by the constitution are: Habeas corpus, Mandamus, Writ of Prohibition, Quo Warranto, Certiorari. Each writ has its own purpose. According to the Indian Constitution, this right of the person to move to Hon’ble Supreme court comes under Article 32 to 35 and Article 226 if the person seeks justice in the high court. To determine the guilt of the people in armed forces, there is one act called the court-martial which is exempted from this right. Although, the Hon’ble Supreme court has power to conduct a judicial review, and to oppose and to interpret the constitution in case of violation of a fundamental right, Article 139 of the constitution enhances the power to act upon other constitutional rights. For example, even though the right to property is not a fundamental right but a constitutional right, the parliament allows the court to issue writs for violation of the legal right to property. In this article, the author attempts to explain the constitutional remedies that are enacted in the constitution.
INTRODUCTION
The doctrinal instruments of the constitution analyzes the articles in a detailed way. In 1949, the constitution was written. The concept of fundamental rights that are to be included in the constitution is taken or adopted from the United States Of America. Constitutional remedies as mentioned in the abstract include five “writs”. These writs are included in article 32(2) of the fundamental rights. According to the parliament, article 32 consists of four clauses, they are:
(1) The right to move to the Hon’ble Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Hon’ble Supreme Court shall have the power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warrant, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.[1]
As stated in Article 32(2) there are five writs which are for enforcing the fundamental rights of an individual. A writ is a formal writing or written order used by the authoritative body or a judicial body. In the modern language, a writ is an “order” issued by the parliament for the proper enforcement of rights. There are different types of writs which are already mentioned in Article 32(2). Each writ has its own meaning and unique function. The types of writs are:
Habeas corpus
Mandamus
Prohibition
Quo warranto
Certiorari
HABEAS CORPUS: The term ‘Habeas corpus’ usually originated from Latin, it literally means ‘to have a body’. This writ helps the person who is unlawfully detained or illegally imprisoned. However, this writ may not be invoked in certain circumstances. They are:
If a person is legally detained according to the law.
If the person who is detained is set free.
If a person is detained due to a valid reason or according to the judicial proceeding.
Under the application filed, if a person who is physically restrained does not come under the territorial jurisdiction, then the writ cannot be invoked.
In an emergency situation, the writ ‘habeas corpus’ can only be invoked if the rights according to article 20 and 21 of the parliament permits.
For a better understanding of this writ, the judgment given by the Kerala High Court in the case of T.V. Eachara Varier vs Secretary To The Ministry Of Home … on 13 April 1977[3]. In this case, the petitioner is the father of Mr. P. Rajan who was allegedly restrained by the police officials during his college hours. Due to a national emergency, the whereabouts of the boy was not informed to the parents. The father filed a writ in the high court for the details of his son and also the reason for the restrainment.
MANDAMUS: The term mandamus literally means “we command”. This writ is issued by the judicial authority, where it can compel the public authority not to neglect the duty to be performed. For example, if a lawyer after taking up the case refuses to deal with the case, the party can seek the court to issue the writ mandamus in making the lawyer do his duty. This writ can be only used on a public authority or servant not on any private individual not having authority. This writ is applicable only to the people who,
A person who has a legal right and it is infringed.
If a public authority fails to perform his duty, or a private individual acting upon the instructions of the public authority.
Even after the order by the judicial authority, the duty to be performed is neglected, this writ can be issued.
In the case of the writ ‘mandamus’ the court always gives an importance of “locus standi” where the case is taken up immediately and any person regardless of the authority should report to the court, if called upon. For a better understanding of the writ, the judgment given by the Hon’ble Supreme court of India in the case of, The Bhopal Sugar Industries Ltd vs The Income-Tax Officer, Bhopal on 2 September 1960.[4] In this case, the Income Tax appellant tribunal gave the respondent an income tax officer, certain instructions to follow during a case, but the respondent failed to fulfill his duty and even neglected his duty. According to the writ issued by the court, the income tax officer has to follow the orders of the appellant tribunal.
PROHIBITION: The term prohibition means “to forbid” or restrain from doing a certain duty or a work. This writ is used by the higher court or the judicial authority to restrain the inferior court or a quasi-judicial authority either from hearing a case or dealing with the judicial proceedings. This writ can be invoked when;
The inferior court or the quasi-judicial body violates the principles of natural justice.
When the inferior court or the quasi-judicial body does not have the authority to hear the case.
There is a similarity between the Writ of Prohibition and the writ of Certiorari, but the difference is that the writ of Certiorari is it’s corrective in nature and writ of Prohibition is prohibiting in nature. Prohibition is better explained through the judgment given by the supreme court in East India Commercial Co., Ltd. … vs The Collector Of Customs, … on 4 May 1962.[5] In this case, the Supreme Court of India passed the writ of prohibition disallowing the respondent to proceed with the inquiry in an inferior tribunal on the ground that the proceedings were outside the tribunal’s jurisdiction.
QUO WARRANTO: The term ‘quo warranto’ means by ‘what authority’. This writ prohibits any official from acting in an office when he/she is not entitled to or when he does not have any authority and wrongfully claimed the position. For example, in appointing new officers in the police department only the authority in charge has the right to appoint and not others. In this circumstance, the writ of ‘quo warranto’ will be issued. The writ ‘quo warranto’ is explained in the judgment given by the Delhi High Court in the case, P.L. Lakhanpal vs A.N. Ray And Ors. on 15 February 1974.[7] In this case, the appointment of Justice A.N. Ray as Chief Justice of India was challenged because of a lack of seniority. However, the court did not grant the writ of quo warranto because it would have been futile since the 3 other judges who were senior to him had resigned after his appointment and consequently, he had gained superiority over all other remaining judges in the Supreme Court.
CERTIORARI: This term ‘certiorari’ literally means ‘to certify’ a certain thing or duty. This writ is issued when the superior court is certain that the inferior court cannot handle the case. The writ is better understandable in the following point. This writ is valid when,
The superior court is certain that the case cannot be handled by the inferior court or quasi-judicial bodies.
When the inferior court or the quasi-judicial bodies can or tend to violate the principles of natural justice.
When the proceedings of the case are wrongly dealt with by the lower court
In the case of a wrong decision by the lower court, the supreme court can issue the writ based on the facts. This writ cannot be invoked if there are errors in the facts provided.
Articles 33 to 35 are the other constitutional remedies by the parliament. There are four clauses in this article.
Article 33 in the Constitution of India 1949 enumerates the power of Parliament to modify the rights conferred by this Part in their application etc. Parliament may, by law, determine to what extent any of the rights conferred by this Part shall, in their application to,
(a) the members of the Armed Forces; or
(b) the members of the Forces charged with the maintenance of public order; or
(c) persons employed in any bureau or other organization established by the State for purposes of intelligence or counterintelligence; or
(d) persons employed in, or in connection with, the telecommunication systems set up for the purposes of any Force, bureau or organization referred to in clauses (a) to (c), be restricted or abrogated so as to ensure the proper discharge of their duties and the maintenance of discipline among them[9].
Court-martial or the military court where the dealings of certain cases regarding the armed forces take place within the jurisdiction of the military court. If guilty, the punishments are set according to the laws prescribed by the military court. Although there are provisions for martial law, there are some restrictions that are explained in Article 34 of the Constitution of India 1949.
According to Article 34, Limitation on rights given by this part, while military law is in power in any zone, despite anything in the prior arrangements of this Part, the Parliament may by law indemnify any person in the service of the Union or of a State or any other person in respect of any act done by him in connection with the maintenance or restoration of order in any area within the territory of India where martial law was in force or validate any sentence passed, the punishment inflicted, forfeiture ordered or other act done under martial law in such area.[10]
Although the parliament is the head of the legislative decisions, in some conditions it cannot legislate the laws. Article 35 of the constitution explains the rights of the parliament in taking legislative decisions.
(a) Parliament shall have, and the Legislature of a State shall not have, the power to make laws
(i) with respect to any of the matters which under clause ( 3 ) of Article 16, clause ( 3 ) of Article 32, Article 33 and Article 34 may be provided for by law made by Parliament; and
(ii) for prescribing punishment for those acts which are declared to be offenses under this Part; and Parliament shall, as soon as may be after the commencement of this Constitution, make laws for prescribing punishment for the acts referred to in sub-clause (ii);
(b) any law in force immediately before the commencement of this Constitution in the territory of India with respect to any of the matters referred to in sub-clause (i) of clause (a) or providing for punishment for any act referred to in sub-clause (ii) of that clause shall, subject to the terms thereof and to any adaptations and modifications that may be made therein under Article 372, continue in force until altered or repealed or amended by Parliament Explanation In this article, the expression law in force has the same meaning as in Article 372 PART IV DIRECTIVE PRINCIPLES OF STATE POLICY.[11]
The constitutional remedies with respect to the fundamental rights, safeguard the laws of the country.
Written by
K.V.L. Manasa Devi manasadevi2001@gmail.com Sastra Deemed to be University
[1] Indian Kanoon, article 32 in the constitution of India 1949, [july21,Tuesday ,10:00am] – https://indiankanoon.org/doc/981147/
[2] Subodh Asthana, Right to constitutional remedies&restrictions on fundamental rights, types of writs, [july21, Tuesday, 10:35am] https://blog.ipleaders.in/constitutional-remedies-restrictions/
[3] Indian Kanoon, case law “ T.V Eachara Varier vs Secretary to the Ministry of Home, 1978 CriLJ86, https://indiankanoon.org/doc/783127/
[4] Indian Kanoon, The Bhopal Sugar Industries Ltd vs The Income-Tax Officer, Bhopal on September 1960, 1961 AIR 182,1961 SCR (1) 474, https://indiankanoon.org/doc/1923180/
[5] Indian Kanoon, East India Commercial Co., Ltd… vs The Collector Of Customs, … on 4 May 1962, 1962 AIR 1893, 1963 SCR (3) 338 https://indiankanoon.org/doc/1839963/
[6] Subodh Asthana, Articles32-35: Right to constitutional remedies& restrictions on fundamental rights, prohibition, explanation of the case, [july 20, Monday ,3:45pm] https://blog.ipleaders.in/constitutional-remedies-restrictions/
[7] Indian Kanoon, P.L. Lakhanpal vs A.N. Ray and Ors. On 15 February, 1974, AIR 1975 Delhi 66, 11 (1975) DLT 1, ILR 1974 Delhi 725, judgement by Delhi high court, https://indiankanoon.org/doc/240258/
[8] Subodh Asthana, Articles 32-25: Rights to Constitutional Remedies, Restrictions on Fundamental rights, explanation of case law in Quo Warranto, https://blog.ipleaders.in/constitutional-remedies-restrictions/
[9] Indian Kanoon, Article 33 in the constitution of India 1949, constitutional remedy (fundamental right), https://indiankanoon.org/doc/829916/
[10] Indian Kanoon, Article 34 of Constitution of India 1949, restriction on rights, constitutional remedy(fundamental rights), https://indiankanoon.org/doc/846153/
[11] Indian Kanoon, Article 35 of Constitution of India 1949, legislative powers of parliament, constitutional remedy (fundamental right), https://indiankanoon.org/doc/448465/
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