Five Types of Writs – Constitutional Remedies to protect Fundamental Rights – ARTICLE 32 & 226 :
Hey, everybody, We are here giving you detail article on 5 kinds of writs, about the protection of Fundamental Rights, Mainly about article 32 & article 226, with important case laws.
Let’s start with first understanding the meaning of writs. So, we`ve been given different rights like :
* the right to education,
* right to dignity,
* right to life.
There is no meaning of Rights until they’re 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.
*Next is Article 359, which says that fundamental rights cannot be curtailed; except during Emergency.
*And then we have Article 32 & Article 226, which we are going to READ today.
Now let’s start our Topic! Part III of the Constitution of India talks about Fundamental Rights – It extends from Article 12 -35. This means that Article 32, which is the topic of today’s Topic, 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 rights are 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 Article 32, the Supreme Court is known as “Protector & Guarantor” of Fundamental Rights ” Dr. B.R. Ambedkar has called this “the Heart & 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’s not a strict rule that you simply first approach the Supreme Court then only approach to High Court. Although, when you directly approach the Supreme Court, you will have to explain, as to why you did not first approach the High Court. Article 32 & Article 226 both provide for the issuance of Writs, but there are 2 major differences between these Articles.
• The Writ issuing power laid down under Article 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. It authorises the high court to issue an order, direction and Writs for enforcing Fundamental Right and other legal rights
Now let’s start with our main topic. But let me tell you a fact first!
There are Five types of writs:
1. Habeas Corpus;
4. Prohibition; &
5. Quo warranto.
All 5 of them are Latin terms! Till now we`ve understood that “Writ” means a kind of a Remedy. So, writs are classified under 5 heads;
it means “to have a body” or “to produce a body”. this is often 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 reason 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:
Let’s talk about Rudul Shah v. State of Bihar during this case – an individual who had already completed his period of detention – was still kept in prison for – an additional 14 yrs! during 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 a person who is illegally detained.
which suggests, ‘WE COMMAND’ you’ll be able to 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 discharge his Public Duty. Let’s discuss the Gujrat state financial vs Lotus Hotel case to know the Writ. In this case, the Financial Co-op had an agreement with the Lotus Hotels that we’ll release the funds in order that you’ll complete your construction work. Later, they refuse to release the Funds So, Lotus Hotels approach the Gujarat supreme court Gujarat HC by using the Writ of Mandamus, directs the Authority to perform the public Duty which it promised to perform!
There is one condition pre-requisite for the application of Writ of Mandamus – There should be a Public Duty.
which means – ‘To be Certified’. Through 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 let’s see when can Lower Courts 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 Lower Court’s Judgments are found to be illegal, then they’re Quashed, which suggests that their judgment has no value now and isn’t to be followed.
Let`s understand it this way:- Prohibition and Certiorari are having a little difference. You must have heard of this statement- ‘Prevention is better than Cure’. The difference that`s between Prevention and Cure is having same difference existing between Prohibition and Certiorari. You can remember it this way: ‘P’ = Prevention = Prohibition and ‘C’ = Cure = Certiorari.
As we`ve learned that – if an illegal judgment is announced – then to Quash it – to CURE the mistake- you’ve got to use Certiorari But, if before the judgment is announced, if you would like to stop the error, then you utilize the Writ of Prohibition. Prohibition = ‘To Forbid’. So Prohibition is used until the lower court has pronounced the Judgment And if the lower court has pronounced an illegal judgment – then you employ Certiorari.
Let we understand this Writ with the assistance of an easy example. Suppose that you are a college Student – therefore, I’m safely assuming that you simply must have cleared college`s Entrance Eligibility – whether its Clearing 12th Board or getting minimum marks required or qualifying entrance examination you must have qualified in College`s Entrance Eligibility! But, if it’s acknowledged that you haven’t cleared the entrance Eligibility – Then you’ll be removed from the school. Exactly this principle is followed in the Writ of quo warranto, which suggests ‘By what Authority’. By using this Writ, Courts can question any Public Officer – that by what authority have you ever assumed this Public Office? If the Officer`s title is defective – then he has got to vacate 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 – Then you use the Writ of quo warrant
2. If you’ve got 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 would like to prevent the judgment from coming into Effect – then you utilize the Writ of Certiorari
4. If you would like to Command a public officer – to perform his Public Duty – – Then you employ the Writ of Mandamus
5. And if you would like to save lots of an individual from Illegal Detention – then use the Writ of Habeas Corpus.
So these are 5 WRITS -out of which only ‘Quo Warranto’ are often filed by anyone.
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