1.1 Writs
Writs Types and Scope :- The Supreme Court (under Article 32) and the high courts (under Article 226) can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto. Further, the Parliament (under Article 32) can empower any other court to issue these writs. Since no such provision has been made so far, only the Supreme Court and the high courts can issue the writs and not any other court. Before 1950, only the High Courts of Calcutta, Bombay and Madras had the power to issue the writs. Article 226 now empowers all the high courts to issue the writs.
These writs are borrowed from English law where they are known as 'prerogative writs'. They are so called in England as they were issued in the exercise of the prerogative of the King who was, and is still, described as the 'fountain of justice'.
Habeas Corpus :- 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. Thus, this writ is a bulwark of individual liberty against arbitrary detention
The writ of habeas corpus can be issued against both public authorities as well as private individuals. The writ, on the other hand, is not issued where the (a) detention is lawful, (b) the proceeding is for contempt of a legislature or a court, (c) detention is by a competent court, and (d) detention is outside the jurisdiction of the court.
Mandamus :- It literally means '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. It can also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose.
The writ of mandamus cannot be issued (a) against a private individual or body; (b) to enforce departmental instruction that does not possess statutory force; (c) when the duty is discretionary and not mandatory; (d) to enforce a contractual obligation; (e) against the president of India or the state governors; and (f) against the chief justice of a high court acting in judicial capacity.
Prohibition :- Literally, it means '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 :- In the literal sense, it means 'to be certified' or 'to be informed'. 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. It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law. Thus, unlike prohibition, which is only preventive, certiorari is both preventive as well as curative.
Until recently, the writ of certiorari could be issued only against judicial and quasi-judicial authorities and not against administrative authorities. However, in 1991, the Supreme court ruled that the certiorari can be issued even against administrative authorities affecting the rights of individuals. Like prohibition, certiorari is also not available against legislative bodies and private individuals or bodies.
Quo-Warranto :- In the literal sense, it means 'by what authority or warrant'. 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.
Armed Forces and Fundamental Rights :- Article 33 empowers the Parliament to restrict or abrogate the fundamental rights of the members of armed forces, paramilitary forces, police forces, intelligence agencies and analogous forces. The objective of this provision is to ensure the proper discharge of their duties and the maintenance of discipline among them.
The power to make laws under Article 33 is conferred only on Parliament and not on state legislatures. Any such law made by Parliament cannot be challenged in any court on the ground of contravention of any of the fundamental rights.
Are Fundamental Rights Unamendable?
The Golak Nath case is a landmark in the constitutional history of India. In it, the Supreme Court held by a majority of six to five that the word 'law' in Article 13 meant both statutory and constituent law. The implication was that our Parliament must respect Fundamental Rights and an amendment which took away or abridged them was void. The Golak Nath decision, though defended by some eminent jurists of the time, was in no way, consistent with the intentions of the founding fathers. And for the government, committed to socio-economic programmes on a large scale, it was nothing but a big hurdle. Mrs. Gandhi's Government, therefore, carried through in 1971 the 24th Amendment. It clarified that a constitutional amendment was not a law within the meaning of Art, 13 and hence Parliament could amend any part of the Constitution, including the Fundamental Rights.
Hardly two years later came the Supreme Court's decision in the
Kesavananda Bharati Case which changed the entire position. The Supreme Court ruled that Parliament could amend any and every part of the Constitution, but it could not destroy the basic structure. The Fundamental Rights were thus declared to be amenable subject to the retention of the basic structure or framework of the Constitution.
Note :- The right to property was also one of the fundamental rights according to the original constitution. This right has been taken away under the 44th amendment Act passed in December, 1978. It is now only a legal right.
Present Position of Right to Property :- The 44th Amendment Act of 1978 abolished the right to property as a Fundamental right by repealing Article 19 (1)(f) and Article 31 from Part III. Instead, the Act inserted a new Article 300A in Part XII under the heading 'Right to Property'. It provides that no person shall be deprived of his property except by authority of law. Thus, the right to property still means a legal right or a constitutional right, though no longer a fundamental right.
Suspension During Emergency :- The suspension of their enforcement during the operation of National Emergency (except Articles 20 and 21) is another blot on the efficacy of these rights. This provision cuts at the roots of democratic system in the country by placing the rights of millions of innocent people in continuous jeopardy. According to the critics, the Fundamental Rights should be enjoyable in all situations Emergency or no Emergency
'Magna Carta' is the Charter of Rights issued by King John of England in 1215 under pressure from the barons. This is the first written document relating to the Fundamental Rights of citizens.
