Right To Constitutional Remedies – Suppose a pen is your private property BUT – To protect that property, you are not allowed to build a fence around your property you are not allowed to do any construction around it; nor are you allowed to evict a trespasser. In these Circumstances; Can you properly enjoy your property?
Hey, everybody, In today’s read, we are going to discuss 5 kinds of writs, about protection of Fundamental Rights, Mainly about article 32 & article 226, with important case laws – Let’s understand our right to constitutional remedies.
Let’s start with first understanding the meaning of writs.
So, we've been provided with different rights like the right to education, right to dignity, right to life.
But just like the example, there is no meaning of Rights until they are properly protected.
To put it simply, whenever we buy any jewellery, the first thing we think about is its safekeeping. Just like that, for the protection of our fundamental rights and their safeguard - we have some Constitutional Remedies.
Protection of Fundamental Rights has been discussed mainly in these 4 Articles Firstly, Article 13 - which talks about Judicial Review. You can know about it by searching or reading about it on google! Next is Article 359, which says that Fundamental Rights cannot be curtailed; except during Emergency.
And then we have Article 32 & 226, which we are going to discuss in today's read.
Now Lets start our discussion! Part III of the constitution, talks about Fundamental Rights - It extends from Article 12 -35. This means that Article 32, which is the topic of today's discussion, is in itself a Fundamental Right.
Now, Article 32 mainly talks about two types of Rights and Powers firstly, it says that if an individual's Fundamental Right is being violated, Then he can directly use Article 32 and approach the Supreme Court.
On the other hand, Article 32 empowers the Supreme Court to issue 5 kinds of WRITS for the protection of Fundamental Rights Because of this feature of Art 32, the Supreme Court is known as "Protector and Guarantor"of Fundamental Rights" Dr. B.R. Ambedkar has called this Article as "the Heart and Soul of the Constitution".
The powers which are vested under Article 32; exactly same powers are also given under Article 226,
By using Article 226 - You can approach a High Court.
Thus, these two Articles give you the power to approach the highest court of the country, in case your Fundamental Rights are violated. Also, in order to protect your Rights, it is not a rule that you first approach the High Court and then only approach the Supreme Court. Although, when you directly approach the Supreme Court, you will have to explain, as to why you did not 1st approach the High Court.
Article 32 and 226 both provide for the issuance of Writs. but there are 2 major differences between these Articles The Writ issuing power laid down under Articles 32 - is only limited to the protection of Fundamental Rights Whereas under Article 226, writs could be issued for "any other purpose" in addition to Fundamental Rights.
for example, a Writ against the decision of an administrative tribunal.
2nd - As Article 32 falls under Part III of the Constitution, the constitutional remedy under it is a Fundamental Right. whereas the remedy under Article 226 is not a Fundamental Right.
Now let's start with our main topic. But let me tell you a fact first! There are 5 types of writs:
1. Habeas Corpus 2. Mandamus 3. Certiorari 4. Prohibition 5. Quo warranto.
Till now we’ve understood that “Writ” means a kind of a Remedy.
So, writs have been classified under 5 heads –
1st is Habeas Corpus; it means to have a body. To produce a body. This is the most powerful and most used writ. See, if the state illegally detains a person, then such an individual by himself – or through his relatives or friends – can use the Writ of Habeas Corpus for the release of that person.
So whenever you use this writ, SC or the HC asks the Detaining authority – That on what basis the person was detained?
If the basis is found to be unreasonable, then the detention ends and he is to be released with immediate effect! You cannot use the writ of Habeas Corpus in the following 4 conditions:
Lets talk about Rudul Shah v. State of Bihar In this case – A person who had already completed his period of detention – was still kept in prison for – an EXTRA 14 yrs!
In this case the Writ of Habeas Corpus was used – which led to his immediate Release Additionally he was given Exemplary Damages! So Writ of Habeas Corpus is used to demand production or release of person who is illegally detained.
2nd – Writ of Mandamus – which means, ‘WE COMMAND’ You can use this Writ on any statutory, non-statutory, University, Tribunals, etc. and Command them to perform their Public Duty. i.e., Through this Writ, you can command a public official to perform his Public Duty.
Lets discuss this case to understand the Writ In this Case, the Financial Co-op had an agreement with the Lotus Hotels that we will release the funds so that you can complete your construction work.
Later, they refuse to release the Funds So, Lotus Hotels approach the Gujarat High Court Gujarat HC by using the Writ of Mandamus, directs the Authority to perform the Public Duty which it promised to perform! There is 1 condition pre-requisite for the application of Writ of Mandamus – There should be a Public Duty.
3rd – Writ of Certiorari, which means – ‘To be Certified’ Thought this Writ, SC & HC, can command the Lower Courts to submit its Records- for their Review In the review it is checked – that whether the Lower Court Judgments are illegal or not.
Now when can Lower Corts judgments be Illegal? 1. Excess of Jurisdiction 2. Lack of Jurisdiction 3. Jurisdiction is Un-Constitutional 4. Violation of Principles of Natural Justice
If the LCs Judgments are found to be Illegal, then they are Quashed. which means that their judgment has no value now and is not to be followed. (*Repeat)
Now look at these 2 cases:- Both these cases are imp. for Competetive Exams. & both these cases relate to the Writ of Certiorari In both of these cases, their LCs judgments were held to be illegal and therefore,
Quashed 4th – Writ of Prohibition – Let’
s understand it this way:- Prohibition and Certiorari has a little difference You must have heard of this statement- 'Prevention is Better than Cure' The difference thats between Prevention and Cure, the same difference exists between Prohibition and Certiorari Remember it this way: ‘P’ = Prevention = Prohibition and ‘C’ = Cure = Certiorari
ve learned that - if an illegal judgment is announced - then to Quash it - to CURE the mistake- you have to use Certiorari But, if before the judgment is announced, if you want to PREVENT the mistake, then you use the Writ of Prohibition Prohibition = 'To Forbid' So Prohibition is used, until the Lower Court has pronounced the Judgment And if the LC has pronounced and illegal judgment - then you use
- Lets understand the 5th Writ with the help of a simple example Suppose that you are a College Student - therefore, I am safely assuming that that you must have cleared colleges Entrance Eligibility – whether its Clearing 12th Board or getting minimum marks required or qualifying Entrance Exam You must have qualified in College
s Entrance Eligibility! If it is found out that you have not cleared the Entrance Eligibility - Then you can be removed from the college.
Exactly this principle is followed in the Writ of Quo Warranto, which means 'By what Authority' By using this Writ, Courts can question any Public Officer - that by what authority have you assumed this Public Office? If the Officers Title is defective – then he has to vaccate the Office!
Let`s do a Quick Recap!
1. If you have to ask a Public Officer – that by what authority have you assumed the Office – -The you use the Writ of Quo Warranto
2. If you have to stop a Court from pronouncing a judgment – then you use the Writ of Prohibition.
3. But if the Court has already pronounced the Judgment and – – you want to stop the judgment from coming into Effect – then you use the Writ of Certiorari
4. If you want to Command a public officer – to perform his Public Duty – – Then you use the Writ of Mandamus
5. And if you want to save a person from Illegal Detention – then use the Writ of Habeas Corpus.
So these were your 5 WRITS or right to constitutional remedies you should be aware about at all times – out of which only ‘Quo Warranto’ can be filed by anyone
I hope it was informative