It would not be far-fetched to say that Article 32, which deals with the Fundamental Right to Constitutional Remedies forms the backbone of rights that have been bestowed on the citizens of India by the Indian Constitution. Article 32(1) provides the right to move the Supreme Court according to the procedure for the enforcement of fundamental rights. The doctrine of exhaustion of alternate remedy is not followed when proceedings are ongoing as per Article 32.
According to Article 32(2), the Supreme Court has the power to issue orders, writs or even directions, whatever the Apex Court deems fit for the enforcement of fundamental rights. The Supreme Court is empowered to issue specified writs under different situations.
Article 226 provides the High Courts with the power to issue writs for the enforcement of Fundamental Rights or for other purposes.
The writs which can be issued by the Supreme Court or High Court are as follows:
- Writ of Mandamus:
The word ‘mandamus’ means command. When this particular writ is issued to a person, that person, through the writ is addressed to execute a public or a quasi-public duty in the legal field which he has declined to perform and which cannot be enforced by any other legal remedy. It is usually issued for the enforcement of fundamental rights.
- Writ of Certiorari
The writ of certiorari is usually issued to a lower court where it has acted beyond its jurisdiction. With the issuing of this writ, decision of that lower court is quashed. This writ makes sure that the jurisdiction of an inferior court or an inferior tribunal is exercised in an adequate manner and it does not make decisions which do not fall under its jurisdiction. This writ is available on grounds similar to the writ of prohibition but just at a later stage.
- Writ of Habeus Corpus
The writ of Habeus Corpus is issued against the cases of wrongful or illegal detention. The Court can order by issuing a writ of Habeus Corpus that a person who has been detained or has been imprisoned be let go from the detention if it cannot be legally justified or if there is no legal reasoning behind it. This writ is available to be issued where the question is of enforcement of fundamental rights and also where the order of imprisonment or detention is ultra vires. This writ, however, is not issued when the detention or imprisonment of an individual is outside the jurisdiction of the court and where the imprisonment has been ordered by a Court of law on certain criminal charges.
- Writ of Prohibition
The writ of Prohibition is issued either by the Supreme Court or by a High Court against the proceedings of a lower court commanding it or forbidding it from continuing with the proceedings of a case which is outside its jurisdictional limit. It is issued to prohibit an inferior court or tribunal from making an ultravires decision. It basically commands inactivity.
- Writ of Quo Warranto
The writ of Quo Warranto can be described as a proceeding whereby the Court conducts an enquiry into the legality of the assertion of an individual relating to the claim of a public office and to oust him from the enjoyment of that public office if his claim proves to be false. The fundamental basis of the writ of quo warranto lies in the fact that an illegal and unlawful asserter does not enjoy a public office which has been created by a particular statute or by a provision of the Constitution.
Article 32(2) has a wide ambit. It empowers the Supreme Court to issue not only writs but directions or orders as well, whichever may be appropriate for the enforcement of fundamental rights.
Aishwarya Says:
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