As a citizen of India each person has certain rights and obligations
towards the nation which forms the fundamental limb towards democracy in India.
Our constitution has given us various rights and obligations as a citizen of
India. The Fundamental Rights to the citizen of India can be enforced through
High Courts or Supreme Court of India according to the provisions of Article 32
of the Constitution. Article 226 of the Constitution provides that “
Notwithstanding anything in Article 32 , every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction, to
issue to any person or authority , including in appropriate cases, any
government , within those territories , directors, orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, or any of them, for the enforcement of any rights conferred by
Fundamental Right and for any other purpose.”
Different
types of Writs and their use is discussed as below:
HABEAS CORPUS: This
word Habeas Corpus means “to have a body”, it is a remedy for those people, who
have been confined in prison or custody without legal justification. Through
this writ the court orders the concerned authority to produce before it the
person and facts of his detention. The court let the person free after
considering facts before it produced by the detaining authority.
The
principal of Equitable Justice is that no person can be deprived from his
personal liberty and independence except for violation of any law enforced and
in accordance with due course of law as prescribed. It means that the authority
cannot snatch the liberty or right to live in peace of a person or deprive a
person from liberty unless he/she has done something against the law of land.
The detention of the person will be done according to rules prescribed in this
regard by the government.
A person
detained or any person or his relative may approach to the High Court for a
writ of Habeas Corpus.
MANDAMUS: It means a “Command” is
issued to direct any person, corporation, inferior court or government
authority requiring him to do a particular thing therein specified, which pertains
to their office and related to their public duty. This writ can be issued for
any public authority.
It is
important that the applicant must have legal right that the duty to be
performed in his favour by the authority against whom writ is issued. If any
public authority has any grievance against performance of duty in favour of
applicant, then this writ will not be issued.
This writ
will enforce the inferior court or public authority to do its/ his duty in
favour of applicant. Article 360 of the Constitution of India prohibits any
writ of mandamus against President of India and Governors’ of the States. This
cannot be issued against any private body, unless state is in collusion with
the private body.
The court
before issuing this type of writ, consider all types of remedies.
PROHIBITIONS: –
Supreme Court or any High Court in India can issue orders for prohibiting any
court inferior to it preventing latter from exercising any jurisdiction, which
is not in their power. It forces a court or tribunal to act within their
jurisdiction, when they cross limits provided to them by statue.
This writ
is available only against judicial or quasi judicial authorities and not
available against public servant who is not vested with juridical powers.
The
Supreme Court may issue this writ only in case of Fundamental Rights being
affected by reason of the jurisdictional defect in the proceedings.
This remedy
is available during the pendency of proceedings and before the order is made.
CERTIORARI:- It is
available to any person whenever anybody of persons having legal authority to
determine questions affecting the rights of subjects and having the duty to act
judicially, acts in excess of its legal authority.
This writ
remove the proceedings from such body to the High Court so that the decision
shall be quashed, which has gone beyond power of deciding authority.
QUO WARRANTO: – It can
be issued by the court on application or prayer to inquire the legality of
appointment of a person in the office of a public and of a substantive nature.
Through this writ court order to check the procedures or legality of
appointment of that person and if found to be illegal, he will be removed from
the public office.
This writ
is available to the public to ensure that no unauthorized person will be
appointed in a public office.
When a
person challenges the validity of appointment to a public office, it is
maintainable whether or not any fundamental or other legal right of such person
has been infringed. This writ is intended to safeguard against the usurpation
of public offices.
