Elections, Remedies for Enforcement, Habeas Corpus, Mandamus, Certiorari

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Elections

  • Election held to elect members of Parliament and State Legislative Assemblies as also to the office of the President and Vice-President is termed as “General Election”. General Elections are normally held every five years in India.

  • But mid-term elections can be held if the circumstances so demand. General Elections are controlled by the Election Commission consisting of one Chief Election Commissioner and a number of Election Commissioners appointed by the President.

  • The Election Commission conducts the election of the President and Vice-President of India as well.

Main Duties of the Election Commission

The main duties of the Election Commission are:

  • To superintend, direct, control and conduct all elections to Parliament and State Legislatures as also to the office of the President and Vice- President of India;

  • To lay down general rules for election;

  • To determine constituencies and to prepare electoral rolls;

  • To give recognition to the political parties;

  • To allot election symbols to different political parties and individual contestants, and

  • To appoint tribunals for the decision of doubts and disputes arising out of or in connection with election to Parliament and State Legislatures. Powers of the Election Commission are given in Article 324.

Minimum Age Prescribed for Election Is

  • President of India - 35 years

  • Member of Lok Sabha - 25 years

  • Member of Rajya Sabha - 30 years.

Mid-Term Election

Is an election held out of schedule as a result of the dissolution of Parliament or a State legislature before it has been in existence for its normal term of five years?

By-Election

  • Is held in respect of a seat rendered vacant during the running term of an elected person, which might occur on resignation, death or due to any other subsequent disqualification of the already elected Member.

  • Every person who is a citizen of India and who is not less than 18 years of age and who is not otherwise disqualified, is entitled to vote at the elections of the House of the People (and also of the Legislative Assembly of the States).

  • A member of either House of Parliament will be disqualified from being a member if he has voluntarily given up membership of the party on whose ticket he was elected. Democracy in India rests on the fact that people have the right to choose and change the government.

Remedies for Enforcement

  • Articles 32 of the Constitution provide a guaranteed remedy for the enforcement of fundamental rights. The remedy is in the form of specific writs mentioned in the Article or any other appropriate order by the Supreme Court. A writ is a written court order by which one is summoned or required to do some- thing. The writs mentioned in the Constitution are the following:

    • Habeas Corpus,

    • Certiorari,

    • Mandamus,

    • Quo Warrantor.

    • Prohibition,

Let us now see the nature and significance of each of them.

Habeas Corpus

  • Habeas Corpus is a Latin term which literally means “you should have the body”. The writ was regarded in England as a foundation of human freedom and the British citizen insisted upon this privilege wherever he went whether for business or colonisation.

  • This is how it found 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 the power to issue a writ of habeas corpus is vested only in the Supreme Court and the High Court. 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.

  • The writ 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 is issued not only against the State and its authorities but also to private individuals or organisation, if necessary.

Mandamus

  • The Latin word Mandamus means ‘we order’. The writ of Mandamus is an order of the Supreme Court or the High Court commanding a person or a body to do that which is his or its duty to do. For instance, a licensing officer is obliged to issue a licence to an applicant if he fulfils all the conditions laid down for the issue of such licence.

  • 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 appointment or the authority concerned refuses or fails to issue the licence or the appointment letter, the aggrieved person has a right to seek the remedy through a writ of Mandamus.

Certiorari

  • Certiorari is a writ which orders the removal of a suit from an inferior court to a superior court.

  • It may be used before a trial takes place to prevent an excess or abuse of jurisdiction and to move the case for trial to a higher court.

  • It is invoked also after trial to quash an order which has been made without jurisdiction or in defiance of the rules of natural justice.

Prohibition

  • A writ of prohibition is issued primarily to prevent an inferior court from exceeding its jurisdiction or acting contrary to the rules of natural justice.

  • For example, a Judge may be restrained from hearing a case in which he is personally interested.

  • The writ of prohibition is a counterpart of the writ of certiorari and an aggrieved person may make an application for the issue of both the writs.

Quo-Warrantor

  • An application for a writ of quo-warrantor seeks an order from the Supreme Court or High Court to restrain a person from acting in an office to which he is not entitled. It may also seek the office to be declared as vacant.

  • What the court has to do is to determine whether there has been surpation of an office of a public nature.

  • For example, a member of a Municipal Corporation may through an application of writ of quo-warrantor challenge the authority of the Mayor if he is of opinion that the Mayor was not properly elected.

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