Right to Constitutional Remedies

Right to Constitutional Remedies (Art. 32)

A declaration of fundamental rights is meaningless unless there is an effective machinery for the enforcement of the rights. Hence the framers of the Constitution were in favour of adopting special provisions guaranteeing the right to constitutional remedies. This, again, is in tune with the nature in general of the various provisions embodied in the chapter on Fundamental Rights. Article 32 has four sections.

  • The first section is general in scope and says that “the right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed”.
  • The second section deals, in more specific terms, with the power of the Supreme Court to issue writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the rights.
  • The third section empowers Parliament to confer the power of issuing writs or orders on any other court without prejudice to the power of the Supreme Court in this respect. So far, Parliament has not passed any law conferring the power of issuing writs on any courts.
  • The last section deals with the conditions under which this right can be suspended.

 

As the guardian of fundamental rights the Supreme Court has two types of jurisdiction, original and appellate. Under its original jurisdiction, any person who complains that his fundamental rights have been violated within the territory of India may move the Supreme Court seeking an appropriate remedy. The fact that they may have a remedy in any of the High Courts does not preclude him from going directly to the Supreme Court.

 

Writs

  • Habeas corpus – ‘You may have the body’ (a person unlawfully detained is sought to be set at liberty)
  • Mandamus: ‘We order’ (commanding a person or a body to do that which it is his, or its duty)
  • Prohibition: Issued primarily to prevent an inferior court from exceeding its jurisdiction
  • Certiorari: Orders the removal of a suit from an inferior court to a superior court
  • Quo warranto: Restrains a person from acting in a office to which he is not entitled

 

Habeas Corpus

Habeas corpus is a Latin term which literally means “You may have the body”. Under the law of England, as a result of long usage, the term came to signify a prerogative writ, a remedy with which a person unlawfully detained is sought to be set at liberty. It is mentioned as early as the fourteenth century in England and was formalized in the Habeas corpus Act of 1679. The privilege of the use of this writ was regarded as a foundation of human freedom and the British citizen insisted upon the privilege wherever he went whether for business or colonization. This is how it found a place in the Constitution of the United States when the British colonies in America won their independence and established a new State under that Constitution.

 

In India, under the Constitution, the power to issue writ of habeas corpus is vested only in the Supreme Court and High Courts. The writ is a direction of the Court to a person who is detaining another, commanding him to bring the body of the person in his custody at a specified time to a specified place for a specified purpose.

 

A writ of habeas corpus has only one purpose: to set at liberty a person who is confined without legal justification; to secure release from confinement of a person unlawfully detained. The writ does not punish the wrong-doer. If the detention is proved unlawful, the person who secures liberty through the writ may proceed against the wrong – doer in any appropriate manner. The writ is issued not only against authorities of the State but also to private individuals or organisations if necessary.

 

Mandamus

The Latin word ‘mandamus’ means ‘we order’. The writ of ‘mandamus’ is an order of the High Court or the Supreme Court commanding a person or a body to do that which it is his, or its duty to do. Usually, it is an order directing the performance of ministerial acts. A ministerial act is one which a person or body is obliged by law to perform under given circumstances. For instance, a licensing officer is obliged to issue a license to an applicant if the latter fulfills all the conditions laid down for the issue of such license. Similarly, an appointing authority should issue a letter of appointment to a candidate if all the formalities of selection are over and if the candidate is declared fit for the appointment. But despite the fulfillment of such conditions, if the officer or the authority concerned refuses or fails to issue the appointment letter, the aggrieved person has a right to seek the remedy through a writ of ‘mandamus’. There are three essential conditions for the issue of writ of ‘mandamus’.

  • First, the applicant must show that he has a real and special interest in the subject matter and a specific legal right to enforce.
  • Secondly, he must show that there resides in him a legal right to the performance sought, and;
  • Finally, that there is no other equally effective, convenient and beneficial remedy.

 

Prohibition

A writ of prohibition is issued primarily to prevent an inferior court from exceeding its jurisdiction or acting contrary to the rule of natural justice, for example, to restrain a judge from hearing a case in which he is personally interested. The term ‘inferior courts’ comprehends special tribunals, commissions, magistrates and officers who exercise judicial powers, affecting the property or right of the citizen and act in a summary way or in a new course different from the common law. It is well established that the writ lies only against a body exercising public functions of a judicial or quasi -judicial character and cannot in the nature of things be utilised to restrain legislative powers.

 

Certiorari

Certiorari is an ancient prerogative writ which order the removal of a suit from an inferior court to a superior court. It may be used before a trial to prevent an excess or abuse of jurisdiction and to remove the case for trial to a higher court. It is invoked also after trial to quash an order which has been without jurisdiction or in defiance of the rules of natural justice.

 

Often a writ of Certiorari is sought along with prohibition, so that not merely may an invalid act be reviewed by a superior court (certiorari), but its operation may also be restrained (prohibition). While prohibition and certiorari are so intimately related to each other, prohibition is the converse of mandamus. The former is invoked to prevent a court or other authority form doing something which it has not the power to do, while the latter is called in aid to require it to do something which it is bound to do.

 

Quo Warranto

The writ of quo warranto is a common law process of great antiquity. According to this, the High Courts or the Supreme Court may grant an injuction to restrain a person from acting in a office to which he is not entitled and may also declare the office to be vacant. What the court has to consider in an application for a writ of quo warranto is whether there has been usurpation of an office of a public nature and office is substantive in character, i.e., office independent in title. It is a remedy given by law at the discretion of the Court and is not issued as a matter of course. An application for the issue of a writ of quo warranto is maintainable only in respect of offices of public nature which are the creation of statute and not against private institutions.