Fundamental Rights Article 32 for NET, IAS, State-SET (KSET, WBSET, MPSET, etc.), GATE, CUET, Olympiads etc. (2023)
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Article 32 & Writs: Habeas Corpus, Mandamus, Certiorari, Prohibition, Quo-Warranto
Fundamental Rights (Originally)
- Right to equality (Articles 14 – 18)
- Right to freedom (Articles 19 – 22)
- Right against exploitation (Articles 23 – 24)
- Right to freedom of religion (Articles 25 – 28)
- Cultural and educational rights (Articles 29 – 30)
- Right to property (Article 31)
- Right to constitutional remedies (Article 32)
Article 32
- Heart & Soul of Constitution
- Hello Mr. Please Come in Queue Writs
- Habeas Corpus
- Mandamus
- Prohibition
- Certiorari
- Quo-Warranto
Writ Jurisdiction Supreme Court | Writ Jurisdiction High Court |
---|---|
Fundamental Right | Fundamental Right + Legal Right |
Against a person or government throughout the territory of India | Within its territorial jurisdiction only or outside its territorial jurisdiction only if the cause of action arises within its territorial jurisdiction |
SC may not refuse to exercise its writ jurisdiction. SC is constituted as a defender and guarantor of FR | HC may refuse to exercise its writ jurisdiction – Article 226 discretionary |
- Habeas Corpus “to have a body”
- It is a Latin term, which literally means ‘to have the body of’ .
- It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it.
- The court then examines the cause and legality of detention.
- It would set the detained person free, if the detention is found to be illegal.
- The writ, on the other hand, is not issued where the
- detention is lawful,
- the proceeding is for contempt of a legislature or a court,
- detention is by a competent court, and
- detention is outside the jurisdiction of the court.
- Mandamus “we command”
- It is a command issued by the court to a public official asking him to perform his official duties that he has failed or refused to perform.
- The writ of mandamus cannot be issued
- against a private individual or body;
- to enforce departmental instruction that does not possess statutory force;
- when the duty is discretionary and not mandatory;
- to enforce a contractual obligation;
- against the president of India or the state governors; and
- against the chief justice of a high court acting in judicial capacity.
- Prohibition “to forbid”
- It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
- Thus, unlike mandamus that directs activity, the prohibition directs inactivity.
- The writ of prohibition can be issued only against judicial and quasi-judicial authorities.
- It is not available against administrative authorities, legislative bodies, and private individuals or bodies.
- Certiorari “to be informed/certified”
- It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case
- Previously, the writ of certiorari could be issued only against judicial and quasi-judicial authorities and not against administrative authorizes.
- However, in 1991, the Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting rights of individuals.
- Like prohibition, certiorari is also not available against legislative bodies and private individuals or bodies.
- Prohibition, which is only preventive, certiorari is both preventive as well as curative
- Quo-Warranto “by what authority”
- It is issued by the court to enquire into the legality of claim of a person to a public office.
- Hence, it prevents illegal usurpation of public office by a person.
- The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution.
- It cannot be issued in cases of ministerial office or private office.
- Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.
✍ Mayank