CONSTITUTIONAL REMEDY

The six Fundamental Rights; Right to Freedom, Right to Equality, Right against Exploitation, Right to Freedom of Religion, cultural & Education Rights, Constitutional Remedies. This article will only focus on the Constitutional Remedies; Article 226 & Article 32. Article 226 & 32 of the constitution of India are also known as ‘Writs’. These two Articles gives the option to move the HC or SC when the person feels that their fundamental rights have been abused. There is no definition of ‘Writ’, but, it is said that writ is something which is powerful in the sense that it can be brought directly in SC or HC without even following the normal hierarchy procedure. Anyway, a writ can be said to be a written command or formal order issued by a court directing the person or authority to whom it has been addressed, to do or abstain from doing certain act mentioned therein. Just like there are six fundamental rights, there are also five types of writs given by the constitution each serving a common objective ; provide a quick remedy to the aggrieved person but used according to the situation. The five types of writs are as follows:

HABEAS CORPUS

The Latin term basically means ‘You may have the body’. The writ is issued in form of an order calling upon a person by whom another person is detained to bring that person before the court and to let the court know by what authority he has detained that person. If the cause shown discloses that the detained person had been illegally detained, then the court will order that he be released immediately. The general rule is that the application can be made by the person who has been illegally detained, but, in certain case, application can also be made by any person on behalf of that person i.e a friend or a relative. In the landmark case of ADM, Jabalpur v. Shivkant Shukla[1] the dissenting judge HR Khanna J. held that the state cannot deprive a person of his life and personal liberty without the authority of law even during emergency. Both the SC & HC can issue writ against private & public authorities, but, there are certain exceptions; when the detention is lawful, when proceedings is for contempt of legislature or court, when detention is by the competent court or outside the court’s jurisdiction.

MANDAMUS

The Latin word means ‘order’. It is thus an order by a superior court commanding a person or a public authority to do or forbear to do something in the nature of public duty or in certain cases of a statutory duty. When there is failure to perform a mandatory duty, then, writ of mandamus can be issued. But that does not mean it can be issued against a rule making authority like the legislature whose duty is to make laws to carry out the provisions of this law, which is discretionary. In the case of State of M.P vs Mandawara[2], the M.P government made a rule making it discretionary to grant dearness allowance to its employees at a particular rate. The SC held that the writ of mandamus could not be issued to compel the government to exercise its power. Unlike habeas corpus, mandamus cannot be issued against a private individual.

PROHIBITION

A writ of prohibition is issued primarily to prevent an inferior court or tribunal from exceeding its jurisdiction or acting contrary to the rules of natural justice. This is issued basically so that the inferior court does not usur its jurisdiction which was not legally vested so that the inferior court is kept within the limits of its own jurisdiction. In Shewpujanrai I. Ltd. v. Collector of Customs[3], it was held that in case where the proceedings of an inferior court or tribunal are partly within and partly without jurisdiction, prohibition will lie against doing what is in excess of jurisdiction and not the whole. It cannot be issued against administrative authority legislative bodies and private bodies.

CERTIORARI

This writ is issued either by a SC or HC to an inferior court or body exercising judicial or quasi-judicial function to remove a suit from an inferior court or body and adjudicate upon the validity of the proceeding or body exercising judicial or quasi-judicial functions. The Latin term means ‘To Certify’. Prohibition is a ‘prohibitive writ’ and Certiorari is a ‘remedial writ’. and is issued to quash an order or decision which has been made without jurisdiction or in violation of principles of natural justice. In the case of A. Ranga Reddy vs General Manager, coop, Electric supply society Ltd[4], it was held that this type of writ cannot be issued against a private body. Co-operative Electric Supply Society Ltd was incorporated under the cooperative societies Act as a private body discharging public function. Before 1991, this writ was issued only against judicial or quasi-judicial authority and not against administrative authority, but, after 1991, the SC ruled that, it can be issued against administrative authorities affecting the rights of individuals.

QUO WARRANTO

The Latin expression means ‘What is your authority’. Under this, a holder of an office is called upon to show to the court under what authority he holds the office. The basic object of this writ is to prevent a person to hold an office which he is not legally entitled to hold. In Renu v. District & Sessions Judge, Tis Hazar[5], the Court held that the writ of quo warranto is a weapon in the hands of judiciary to prevent the executive from making appointments to public offices against law and defend a citizen from being deprived of his right to hold a public office, provided he fulfills other necessary criteria. Quo-warranto can be issued only when the substantive public office of a permanent character, created by a statute or by the constitution, is involved. It cannot be issued against private or ministerial office.


[1] (1976) 2 SCC 521.

[2] AIR 1954 SC 493.

[3] AIR 1958 SC 845.

[4] AIR 1977 NOC 232.

[5] AIR 2014 SC 2175.

Aishwarya Says:

I have always been against Glorifying Over Work and therefore, in the year 2021, I have decided to launch this campaign “Balancing Life”and talk about this wrong practice, that we have been following since last few years. I will be talking to and interviewing around 1 lakh people in the coming 2021 and publish their interview regarding their opinion on glamourising Over Work.

If you are interested in participating in the same, do let me know.

Do follow me on FacebookTwitter  Youtube and Instagram.

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

If you would also like to contribute to my website, then do share your articles or poems at adv.aishwaryasandeep@gmail.com

We also have a Facebook Group Restarter Moms for Mothers or Women who would like to rejoin their careers post a career break or women who are enterpreneurs.

We are also running a series Inspirational Women from January 2021 to March 31,2021, featuring around 1000 stories about Indian Women, who changed the world. #choosetochallenge

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.