Submitted by Aadesh Agarkar
The fundamental rights are meaningless without enforcement of the same. The remedy makes the right real. An effective remedy for fundamental rights has been provided for under article 32.
Article 32 (1)
Article 32 guarantees the right to move the Supreme Court by appropriate proceedings for enforcement of fundamental rights conferred by part 3 of the Constitution.
Article 32 clause 2) Confirm the power upon the supreme court to issue appropriate directions or orders or writs including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for enforcement of fundamental rights conferred by part 3 of the constitution. Thus, the language of article 32 (2) provides for a very wide scope. It permits all necessary adaptation without legislative sanction.
Habeas corpus literally means "you have the body" This writ is issued in the form of an order calling upon a person by whom another person is detained to let the court know under what authority he has been detained that person.
In Kanu Sanyal v. District Magistrate, Darjeeling
The Supreme Court held that for writ of habeas corpus producing of the body of the person alleged to be unlawfully detained is not essential.
Application of writ : An application can be made by the person detained illegally or in certain cases on his behalf by a friend or relative.
Technicalities : Technicalities and legal necessities are no impediments to the court. Even informal communication can be entertained by the court for proceeding if basic facts are found.
The word mandamus means order. The writ of mandamus is thus an order commanding a person or public authority do something in the nature of public duty or in statutory duty.
Thus, a writ of mandamus will be granted-
a) when the applicant has a right to compel performance of some duty cast upon the authority.
b) to restrain public authority from acting under a law declared unconstitutional.
A writ of mandamus will not be granted-
a) when a duty is merely discretional.
b) when it is against the private individual.
c) for an obligation arising out of a contract.
A writ Certiorari is issued by a Supreme Court to an inferior court or body exercising Judicial or Quasi-Judicial functions to remove a suit from such a court or body to adjudicate upon the validity of proceedings or the body exercising judicial or Quasi-judicial functions.
A writ of Certiorari can be issued to judicial or Quasi-judicial body on the ground of-
1) where there is an error of law apparent on the face of the record. But the same is not the error of the fact
In Hari Vishnu v. Ahmad Ishaque The supreme court held that no error is said to be the face of record if it is not self-evident. Where if there has been violation of procedures or abrogation of the principles of natural justice. A writ of Certiorari cannot lie against a private body.
A writ of prohibition is issued primarily to prevent an inferior court or Tribunal from exceeding its jurisdiction or acting contrary to the rule of natural justice.
The difference between prohibition and certiorari are-
-prohibition is issued prohibiting the court from continuing proceedings
-Certiorari is issued to quash the order on the ground of jurisdiction.
The object of Prohibition is prevention rather than cure, the object of Certiorari is the cure.
The word Quo warranto means " what is your identity". This writ prevents a person holding an office he is legally not entitled to.
The court under this writ may pass an order preventing the holder from continuing office and declares it vacant.
A writ of Quo warranto can be obtained by a person if he satisfies certain conditions-
1) the office in question is a public office.
2) seat is held by person without legal authority.
A writ of quo warranto cannot be issued against an office of private character. How the court can also refuse to grant a writ of quo warranto if it is vexatious in nature or where the plaintiff acquiesced in the very act complained about.
In a writ of quo warrranto a person declared not eligible to hold the post, cannot be ordered recovery of amount for service rendered.
K K Kochuni v. State of Madras. The court held that article 32 being a fundamental right the court can grant relief, notwithstanding the existence of an alternative remedy. However in S A khan v. State of Haryana It has been held that when a statutory alternative remedy is available to the petitioner against suspension order, the writ petition under article 32 is not maintainable.
Submitted by Aadesh Agarkar