Right to Constitutional Remedies

Q. Against whom can the fundamental rights be enforced? What remedies are available to a person to enforce fundamental rights? Discuss. [20 marks - 2022]

Right to Constitutional Remedies

The Constitution of India provides for legal remedies for the protection of the fundamental  rights against their violation by the State or other institutions/individuals. The citizens of India has constitutional right to move the Supreme Court or High Courts for the enforcement of these rights. The Supreme Court has power to strike down any law that violates the Fundamental Rights.

Writs

Writs are written orders issued by the Supreme Court of India to provide constitutional remedies to protect the fundamental rights of citizens from a violation. 

Article 32 of the Constitution of India empowers the Supreme Courts to issue the writs. It also empowers Parliament to authorize any other court to issue these writs.

Article 226 empowers all the high courts of India to issue the writs

Type of Writs

1. Habeas Corpus

2. Certiorari

3. Prohibition

4. Mandamus

5. Quo Warranto

1. Habeas Corpus

Habeas Corpus is a writ that is enforced to protect the fundamental right to liberty of an individual against unlawful detention. This writ commands a public official to deliver a detained person in front of the court and provide valid reasons for the detention. However, this writ cannot be issued in case the proceeding is for contempt of a legislature or a court.

2. Certiorari

The writ of certiorari is issued to a lower court directing that the transfer of a case for review, usually to overrule the judgment of the lower court. The Supreme Court issues the writ of Certiorari in case the decision passed by the lower court is challenged by the party. It is issued in case the higher court finds it a matter of over jurisdiction or lack of jurisdiction.

3. Prohibition

Prohibition is a writ issued by a higher court to a lower court to enforce inactivity in the jurisdiction. It happens only in case the higher court is of the discretion that the case falls outside the jurisdiction of the lower court. Writ of Prohibition can only be issued against judicial and quasi-judicial authorities.

4. Mandamus

The writ of mandamus is issued to a subordinate court, an officer of the government, or a corporation or other institution commanding the performance of certain acts or duties. Mandamus cannot be issued against a private individual.

5. Quo-Warranto

Quo warranto is issued against a person who claims or usurps a public office. Through this writ, the court inquires ‘by what authority’ the person supports his or her claim.