Indian Polity / Fundamental Rights
Right to Constitutional Remedies in India
Article 32 talks about Right to constitutional remedies. It is the most important Right without which all fundamental rights may be useless.
Dr. B.R. Ambedkar observed that this Article is the very soul of the Constitution and the very heart of it.
If any fundamental right is violated or abridged, abrogated, the aggrieved person can directly move to the Supreme Court and can seek
Constitutional remedy in the form of writs. It is not only a remedy but also a Right. That is why it is called a remedial Right.
Types of Writs in Indian Constitution
According to Article 32, the writs that are issued under the Writ Jurisdiction of Supreme Court,
are applicable to all individuals as well as institutions in the entire territory of India.
Supreme Court issues writs only for the protection of
fundamental rights. Supreme Court issues writs as a matter of right. It is not the discretion of the court.
Constitution of India provides
five types of writs. They are Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo warranto.
The actual meaning of Habeas Corpus is 'you may have the body'. This writ is issued by the Supreme court and High courts directing the police
authority to produce the person or the body of that individual before the court so that the court will examine the legality of arrest.
If there is a
legal ground, the police can detain that individual, otherwise court will set him free. The purpose of this writ is to protect the personal freedoms
provided in the Articles 19 to 22.
The literal meaning of of Mandamus is 'we command'. The Mandamus is a kind of command which demands to perform some public or quasi-public duty
from a person or authority to whom it is addressed.
The Writ of Mandamus is issued as an ultimate alternative remedy provided all other alternative remedies
have been exhausted.
Moreover, this writ is not issued against the President, Governor, private individuals and institutions if they are not discharging their legal or
The writ of Mandamus can be given against public, quasi-public (undertaking), judicial, quasi-judicial (tribunals) bodies.
The meaning of Prohibition is 'not to proceed'. This is the writ issued by the higher courts to the lower courts containing their jurisdiction
or limits if they are exceeding their limits until the matter is verified.
The purpose of this writ is to control or contain the lower courts from exceeding
their limits. This writ of Prohibition is issued against quasi-judicial and judicial bodies only.
Certiorari literally means 'certify'. This is the writ issued by higher court to the lower courts quashing the order of the lower court
and directing the lower court to transfer the case to higher or superior court as that case might not come under the jurisdiction or purview of the said
court.This writ is also issued against judicial and quasi-judicial bodies.
- Difference between Prohibition and Certiorari - In these two, there is difference in procedure and not the purpose. The purpose of prohibition and
Certiorari is same that is to contain the lower courts.
However, Prohibition is available at the initial stage of the case where as Certiorari is
available at the end of the case. Both are given for inaction.
Actual meaning of Quo warranto is 'by what authority'. This writ is issued against a public office holder asking him to prove how he has the
legal authority in holding such office. If he does not have legality, court directs him to immediately vacate the office.
So, the intention of this writ is to
protect the public office from its misuse and unlawful entry into it. However, the office must be a substantial public office and independent.
- State High courts issue writs under Article 226 of the Constitution. They are applicable to the territorial limits of only that
particular state. That is the writ issued by the High court is coterminous within the state in which its jurisdiction lies.
- Writs issued by High courts come under matter of facility. The aggrieved person cannot call for a writ as a matter of right because it is
outside the PART III of the Constitution. High courts exercise discretion while issuing the writs.
- High courts issue writs not only for the protection of fundamental rights but also for the protection of the legal rights, provided if High court
thinks that writ is the ultimate alternative remedy, where all legal remedies have become exhausted.
- The Concept of Writs is borrowed from British Constitution.
- Article 33 says that the Parliament of India and State Legislatures can impose certain limitation on fundamental rights.
- Article 34 says that the Parliament of India can indemnify the acts of armed forces in certain situations where it is done in relation to
security of India, maintenance of Law and order, etc.
- Article 35 says that the Parliament of India can prescribe punishments for the crimes mentioned in PART III of the Constitution like
untouchability, exploitation of women and children, etc.