Rights and Writs As Provided In Our Constitution ::By Arup Deb
Rights and Writs As Provided In Our Constitution
By: Arup Deb
Rights given by law or recognized by law can be analyzed into the following categories:
a) Fundamental Rights given by the Constitution
b) Constitutional Rights not having the status of Fundamental Rights.
c) Statutory Rights.
d) Rights flowing from Subordinate Legislation
e) Rights based on case law
f) Customary Rights
g) Contractual Rights.
Article 32 of our Constitution which relates to Right to Constitutional Remedies can be invoked only in case of violation of Fundamental Rights given by our Constitution. Article 32 which itself a fundamental right confers power to the Supreme Court to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari whichever is appropriate in case of violation of Fundamental Rights and not in an issue not involving Fundamental Rights under this article.
Our Constitution also confers power to the High Courts to issue writs for the enforcement of any of the rights conferred by Part III and for any other purpose. Such power conferred under article 226 to the High Courts. Thus the power of the High Courts under article 226 to issue writs is not restricted in enforcement of fundamental rights under Part III of the Constitution like Supreme Court, but unlike Supreme Court, writs may be issued by High Courts for any other purpose. So the power of High Courts to issue writs is wider than that of the Supreme Court.
The Constitution of India mentions the Writ of Habeas Corpus in article 32 and 226. This writ ordinarily issued with an object to secure the release of a person found to be detained illegally. Thus Habeas Corpus is granted only when the detention is illegal.
The Writ of Mandamus (we command) is a high prerogative writ of a most extensive, remedial and natural issued by a High Court of Justice and directing any person, tribunal, administrative authority, corporation or inferior court to do or refrain from doing a specified one which falls in the nature of public duty.
Writ of Prohibition is a writ from the High Court restraining an inferior court from continuing the proceeding in excess of its Jurisdiction or such inferior court or tribunal is acting in contravention of law.
Writ of Certiorari is an ancient high prerogative writ used by the Court of King’s Bench to correct the errors of the inferior court. This writ has been adopted by the Constitution of India and is applied when the judicial or quasi-judicial authority which passed the order acted- (i) without jurisdiction, or (ii) in excess of jurisdiction, or (iii) in violation of the principles of natural justice.
Writ of “Quo Waranto” – literally means “by what authority” is applied with an object to determine the right of a person to hold a particular public office. Such a person is asked to show what is the authority under which he is holding that office. The person must be in actual occupation of the office and such office is created under valid law and whose duties are of public nature. The office must not be of a private nature when writ of quo warranto is prayed for.
Writ of mandamus is granted if the duty falls within the nature of public duty and specially affects the right of an individual, and there is no more appropriate remedy for the person who claimed for. The person to whom it is issued must be acting under a statutory or legal duty to do something or not to do something. Writ of prohibition, on the contrary, lies against a body exercising functions of a judicial or a quasi-judicial character.
Writs of prohibition and certiorari are in common issued to judicial or quasi-judicial authority but they differ fundamentally in one aspect. While the inferior court or tribunal takes up a matter in excess of its jurisdiction or without jurisdiction, the former is invoked and when the inferior court completes its proceeding and pronounced its judgment in excess of its jurisdiction or without jurisdiction then writ of certiorari is invoked to quash such proceeding. To sum up, writ of prohibition is issued when the proceeding is still continuing and writ of certiorari is issued when the proceeding has completed.
About The Author: Arup Deb joined TCS in the year 2007. He completed his studies from Holly Cross School, Agartala. He has done his MA (English) from Tripura University. He has worked as Deputy Collector and BDO. At present he is posted as Under Secretary of Home Department, Government of Tripura.
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