CS Deepak Pratap Singh
Our constitution has given us various rights and obligations as a citizen of India. The Fundamental Rights to the citizen of India can be enforce through High Courts or Supreme Court of India according to the provisions of Article 32 of the Constitution. The High Courts or Supreme Court of India has power to issue various types of directors or orders or writs for enforcement of fundamental rights of citizen according to Article 32.
Article 226 of the Constitution provides that “ Notwithstanding anything in Article 32 , every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority , including in appropriate cases, any government , within those territories , directors, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any of them, for the enforcement of any rights conferred by Fundamental Right and for any other purpose.”
TYPES OF WRITS;
HABEAS CORPUS; This word Habeas Corpus means “to have a body”, it is a remedy for those people, who have been confined in prison or custody without legal justification.
Through this writ the court orders the concerned authority to produce before it the person and facts of his detention. The court let the person free after considering facts before it produced by the detaining authority.
The principal of Equitable Justice is no person can be deprived from his personal liberty and independence except for violation of any law enforced and in accordance with due course of law as prescribed. It means that the authority cannot snatch the liberty or right to live in peace of a person or deprive a person from liberty unless he/she has done something against the law of land. The detention of the person will be done according to rules prescribed in this regard by the government.
A person detained or any person or his relative may approach to the High Court for a writ of Habeas Corpus.
MANDAMUS; it means a “ Command” is issued to direct any person, corporation, inferior court or government authority requiring him to do a particular thing therein specified , which pertain to their office and related to public duty. This writ can be issued for any public authority.
It is important that the applicant must have legal right that the duty to be performed in his favour by the authority against whom writ is issued.
If any public authority has any grievance against performance of duty in favour of applicant, then this writ will not be issued.
This writ will enforce the inferior court or public authority to do its/ his duty in favour of applicant.
Article 360 of the Constitution of India prohibits any writ of mandamus against President of India and Governors’ of the States.
This cannot be issued against any private body, unless state is in collusion with the private body.
The court before issuing this type of writ, consider all types of remedies.
PROHIBITIONS; – Supreme Court or any High Court in India can issue orders for prohibiting any court inferior to it preventing latter from exercising any jurisdiction, which is not in their power.
It forces a court or tribunal to act within their jurisdiction, when they cross limits provided to them by statue.
This writ is available only against judicial or quasi judicial authorities and not available against public servant who is not vested with juridical powers.
The Supreme Court may issue this writ only in case of Fundamental Rights being affected by reason of the jurisdictional defect in the proceedings.
This is available during the pendency of proceedings and before the order is made.
CERTIORARI;- is available to any person whenever anybody of persons having legal authority to determine questions affecting the rights of subjects and having the duty to act judicially, acts in excess of its legal authority.
This writ remove the proceedings from such body to the High Court so that the decision shall be quashed, which has gone beyond power of deciding authority.
QUO WARRANTO; – can be issued by the court on application or prayer to inquire the legality of appointment of a person in the office of a public and of a substantive nature. Through this writ court order to check the procedures or legality of appointment of that person and if found to be illegal, he will be removed from the public office.
This writ is available to the public to ensure that no unauthorised person will be appointed in a public office.
When a person challenges the validity of appointment to a public office, it is maintainable whether or not any fundamental or other legal right of such person has been infringed. This writ is intended to safeguard against the usurpation of public offices.