Article 32 is known as the heart of the Indian Constitution. It is because of the existence of this particular Article, the people of Indian have the right to go to the Supreme Court if their fundamental rights are being violated. This Article is included in the basic structure doctrine by the Supreme Court of India. The High Court can also be approached in case a person’s fundamental rights are violated- Article 226.
Writs can be issued by the court in such cases. Writs are the written orders passed either by the Supreme Court or the High Court that commands constitutional remedies for the Indian citizens if their fundamental rights are violated. There are five types of writs. They are Habeas Corpus, Mandamus, Certiorari, Prohibition, and Quo Warranto. They can be issued any time except when the President suspends this privilege during the times of Emergencies – Article 359.
“If I was asked to name any particular Article in this Constitution as the most important- an Article without this Constitution would be a nullity- I could refer to any other Article except this one. It is the very soul of the Constitution and the very heart of it”Dr. Ambedkar.
Without effective machinery, there is no meaning of providing fundamental rights. Article 32 of the Indian Constitution is one such effective machinery which helps in the proper enforcement of the fundamental rights. There is always a remedy wherever there is a right provided. Article 32 can also be treated as one of the fundamental rights.
Dr. Ambedkar called Article 32 as the heart of the Indian Constitution. This article is included in the fundamental structure regulation. This Article is used only to get remedies whenever a person’s fundamental rights are infringed. Clause (1) of Article 32 states that whenever a fundamental right is violated the person whose rights are being infringed can go to the Court with “appropriate proceedings”. This privilege can only be suspended by the President during times of emergencies (Article 359). This particular Article makes the Apex Court the safeguard of all the important major rights mentioned in the Indian Constitution.
Article 226 of the Indian Constitution can be compared to Article 32 as both the articles provide constitutional remedies. The former one helps the individual to reach out to the High Court and the latter helps to reach out to the Supreme Court. The writ jurisdiction of the High Courts is comparatively wider than the Apex Court. The Supreme Court has the authority to issue writs only when the fundamental rights of an Indian citizen are violated, but the High Court has the power to issue writs for enforcement of fundamental rights and also for other purposes. Forgiving a similar kind of jurisdiction to the Supreme Court there can be a law made by the Parliament and for making this law there is no requirement of making any kind of amendments in the Constitution.
Writs are the written orders that are passed by either the Supreme Court or the High Court that commands constitutional remedies for the citizens of India if their fundamental rights are violated. Writs are borrowed from English Law. Writs are known as ‘Prerogative writs’in the English Law.
Article 32 of the Indian Constitution provides the Right to Constitutional Remedieswhich can be looked up by any citizen of India whose fundamental rights have been infringed in any way. To seek this particular remedy a person can go to the Supreme Court or the High court.
Article 32 provides the power to the Parliament to authorize any other court to issue a writ. Before 1950, only a few High Courts had the authority to issue the writs. Those Courts were the High Court of Calcutta, Bombay, and Madras.
Types of Writs
‘Habeas Corpus’ is a Latin term which means “you may have the body”. This writ is a written order passed by the Court in cases where the fundamental right of individual liberty against unlawful detention. Through the issuing of this writ, the Supreme Court and the High Court orders the person who has arrested the other to bring the body of the latter before the court.
This writ can be issued against both the public as well as private authorities.
Filing of Habeas Corpus
The writ of Habeas Corpus can be filed in various methods. They are:
- The detenu himself or someone on his/her behalf can apply to habeas corpus.
- A letter can also be sent directly to the judge mentioning about the entire incident.
- The respective courts can act Suo Moto if they get information from any source in the interests of providing justice to the detenu.
There are certain cases under which the writ of Habeas Corpus cannot be issued. Such cases are:
- Lawful detention
- In cases where the proceedings are made for contempt of the legislature or court
- A competent court gives detention
- Detention given is outside the jurisdiction of the particular court
In Kanu Sanyal v. District Magistrate, Darjeeling , the Supreme Court held that while the application of Habeas Corpus is taken into consideration then the production of the alleged person’s body who was unlawfully detained was not essential.
The literal meaning of the writ Mandamus is “we command”. The writ of Mandamus is issued by the courts to pass an order for the public official who has either failed to perform his duty or refused to do his duty to resume his work. This writ can be issued for the public, corporation, an inferior court, a tribunal or government in case of similar purposes.Mandamus cannot be issued for private organizations.
There are certain cases under which the writ of Mandamus can be issued. Such cases are:
- For the enforcement of departmental instructions that do not possess any kind of statutory force.
- To order someone to do certain kinds of work which is discretionary and not mandatory?
- Enforcement of contractual obligations
- It cannot be issued against the President of India and the Governors of the States
There are certain limitations for the issuing of the writ of Mandamus, that is, In India, the writ of mandamus will lie not only against officers on public duty but also against the Government itself. Article 226 and 361 provides that through appropriate proceedings may be brought against the Government who is at fault or is suspected of something.
In Mrs. Santosh Singh v. Union of India , the Supreme Court held that this particular writ of Mandamus cannot be issued for the introduction of moral science as a compulsory subject in the curriculum of the school.
The Writ of Prohibition is also known as the stay order. This stay order is issued to a lower court or any particular body to stop acting beyond its authority. The court with higher position issues this particular writ against the lower court to prevent the latter from exceeding its jurisdiction that it does not possess. The Writ of Prohibition is preventive.
This writ can be issued against the judicial and quasi-judicial authorities and it cannot be issued against the private, legislative, or administrative authorities.
In S. Govinda Menon v. Union of India, the Court held that the writ of Prohibition can be issued in both the cases where there is either excess or absence of jurisdiction.
The meaning of the writ ‘Certiorari’ is ‘to be certified’ or ‘to be informed’. The higher court issues the writ of certiorari against the lower court or any tribunal and orders them to transfer a particular pending case with them to itself or squash their order in that respective case. The writ is issued in conditions of lack or excess of jurisdiction and also when there is an error of law. With the help of this writ, the mistakes of the judiciary are cured.
Before 1991, this writ was only issued against the judicial and quasi-judicial authorities. After 1991, the Apex Court gave a ruling that this writ can also be issued against the administrative authorities who in any way have violated or affected the fundamental right of any Indian citizen.
In Syed Yakoob v. Radha Krishnan, the court held that any error of law which is apparent on the face of the record can be corrected by the issuing of the writ of certiorari but not an error of fact, howsoever grave it may appear to be.
The meaning of the writ of ‘Quo Warranto’ is ‘by what authority or warrant’. This writ is issued either by the Supreme Court or the High Court to prevent the illegal use of any public office by a person who is not entitled to hold a position in that particular place. Through the issuing of this writ, the court enquires about the legality of a person who claims of holding a public office.
This writ can be issued only when the substantive public office of a character created by a statute or by the Constitution is involved. It can only be issued in cases against private or ministerial offices.
In Jamalpur Arya Samaj Sabha v. Dr. D. Ram, the High Court refused to issue a writ of quo warranto because this writ cannot be issued in respect of an office of a private character.
In times like this when the world is growing at such a rapid rate, it is sad to know that there are still many people in our society whose fundamental rights are violated by the ones in power. People misuse their authoritative powers and violate the poor’s rights. With the privilege of the Writs, the Indian Citizens can go to the respective Courts and fight for their fundamental rights and prevent them from being infringed. As everything as both positive and negative aspects, the negative aspect is that sometimes people misuse this privilege for their own selfish needs. This needs to stop so that the once who truly deserve justice can seek it.
Frequently asked Questions (FAQs):
- Which Article in the Indian Constitution empowers Parliament to authorize any court to issue writ?
- Which writ is issued by the High Court or the Supreme Court to order an authority to perform a function that it was not performing?
- Which writ is known as the defender of the Fundamental right?
- Which writ can only be issued in the cases against private and ministerial offices?
- Under what conditions the writ of Habeas Corpus cannot be issued?
- Constitutional Law of India by Dr. J.N. Pandey