Constitutional Remedies

“If I was asked to name any particular article in this Constitution as the most important- an article without which this Constitution would be a nullity— I could not refer to any other article except this one. It is the very soul of the Constitution and the very heart of it and I am glad that the House has realized its importance.”

- Dr. B.R Ambedkar (While speaking on Article 32 in Constituent Assembly, December, 1948)

Introduction

Part III of the Indian Constitution provides with Fundamental rights to its people. Fundamental rights are those rights which require a high degree of protection against government’s abuse. Part III of the Constitution also provides with the provision to enforce these rights against the government in the form of Constitutional Remedies. Article 32 empowers the Supreme Court to enforce this right in the form of orders or directions or writs. It also provides for the Parliament to empower any other court (without any prejudice to Supreme Court’s power) to exercise the same power(s) within its jurisdiction. Similar powers are also vested upon High Courts of each state under article 226. Although, unlike article 32 this is not a fundamental right, however the scope of this article is much wider than article 32 since it also protects the legal and constitutional rights of a person. Under article 32 of the Constitution there has been no explicit mention of awarding compensation to a victim, however, it was witnessed for the first time in the Rudul Shah Case,that the Supreme Court had recognized monetary compensation as a remedy under this article.

Writs under article 32 and 226 falls under the original jurisdiction of the Supreme Court and High Court, respectively. Also, the fundamental right to move to Supreme Court cannot be suspended except under an emergency under Article 359 or as per the provisions provided in the Constitution. In the Indian Constitution the prerogative form of writs has been adopted from the English Law. A writ is a formal official order issued by the court against the concerned authority. Writ is a mechanism through which any aggrieved party can voice it’s concern against any public authority or judicial body to have justice done to him. There are 5 types of writs under the said articles. In this article we shall essentially limit our discussion to the meaning and scope of each writ.

WRIT OF HABEAS CORPUS

The literal meaning of this writ is ‘you can have the body’. It is essentially used against illegal detention by government officials. Any person who has been arrested can move to the court to issue a writ of Habeas Corpus against the detaining authority, so that the person so detained can be brought before the court to check the legality of his detention. If the court so finds that the person has been unlawfully detained, then the court can pass an order for his release. The general rule is that the person detained can move to the court, however in certain cases any close relative of the detainee can move to the court to issue a writ of habeas corpus. This writ ensures that a person can be set free from malafide arrests or arrests made without sufficient reasons or evidences. It can also be used to protect prisoners from inhumane and barbaric treatment in prisons.

WRIT OF MANDAMUS

Mandamus means ‘we command’. It is a writ issued by a superior court to lower courts, tribunals or public authority to compel them to do what they are expected to do under the office they hold. This writ cannot be used as a matter of right, but rather depends upon the discretion of the Court. In other words, this writ is issued to secure performance of public officials which falls within their public duty but have failed to be perform. Mandamus can also be issued against a tribunal to compel it to exercise its jurisdiction which has been trusted upon it. However, it cannot be issued in cases where the performance of such public duty depends upon the discretionary power of the office holder.

WRIT OF CERTIORARI

This writ means to certify. A superior court has the power to issue this writ against the order(s) of the inferior courts. This writ can be issued when a court goes beyond its jurisdiction and passes an order. This writ can be issued only against judicial authorities unlike the writ of Mandamus which can be issued against public authorities as well. It is used to quash an order already passed by an inferior court or tribunal which did not follow the principles of natural justice or passed an order going beyond its jurisdiction. This writ can be issued only after an order has been announced. In Hari Vishnu v/s Ahmed Ishaque,the Supreme Court had stated that this writ can be issued in cases of error of law and not error of facts, irrespective of how grave it appears to be; this is so because a court under this writ jurisdiction acts as a supervisory court instead of an appellate court.

WRIT OF PROHIBITION

The literal meaning of this writ is to prohibit the concerned authority. This writ is issued by a superior court to a lower court or other authority(s) to stop it from exceeding its given power. It is popularly known as ‘Stay Order’. Once this writ is passed the concerned authority cannot progress with the matter any further. This writ is not available with a public officer not vested with judiciary or quasi-judiciary powers. Thus, it can be issued by a superior court to any inferior court in case of excess of jurisdiction or absence of jurisdiction. Unlike, writ of certiorari this writ can be issued before an order has been announced by the court or tribunal.

WRIT OF QUA WARRANTO

This writ is issued to restrain a person from working in the public office to which he is not authorized. The literal meaning of this writ is on what authority a person is holding or continuing with the public office or governmental privilege. This writ is not a petition filed before the court, rather a notice of demand, questioning the authority of the respondent to which he holds the public office. Here the burden of proof lies with the respondent rather than the demandant.  When a writ of Qua Warranto is issued the court first takes into account whether the office in question is a public office or a private office; secondly, whether the office is held by a person without any legal backing. In Jamalpur Arya Samaj Sabha v/s Dr. D. Ram,the High Court had refused to issue a writ of Qua Warranto against the working members of the committee on the ground that it was a private association.

Apart from the above mentioned writs and orders or directions, the Constitution of India also provides for Public Interest Litigation to protect the rights of essentially those who cannot themselves do so. Thus, the protection of the fundamental, constitutional and legal rights is what constitutes the soul of the Constitution. In the absence of such protection the Constitution shall be nothing but a sham.

Conclusion

The unique feature of Indian Constitution is provision of a fundamental right to remedy. As aptly described by Dr. B. R. Ambedkar that Article 32 is the real heart and soul of the Constitution. It is through Article 32, a victimised citizen can approach the apex court of justice without completing the formalities of passing through all the hierarchy. A kind of straight and instant remedy is provided in summary manner to ensure the protection of the fundamental rights and realise the guarantees offered by the state.

Rudul Sah vs State of Bihar And Another, 1983 AIR 1086, 1983 SCR (3) 508.

Sunil Bhatra V/S Delhi Administration,AIR 1980 SC 1795.

AIR 1955 SC 223.

AIR 1954 Pat 297.