WRIT , Type of writs, Article 32, Article 226.
CONSTITUTIONAL REMEDIES
TYPES OF WRITS
Just like that, for the protection of our fundamental rights and their safeguard.
We have some Constitutional Remedies.
Protection of FRs has been discussed mainly in these 4 Articles
Article,13
Article,359
Article,32
Article,226
Firstly, Article 13 - which talks about Judicial Review.
You can know about it by clicking the link.
Next is Article 359, which says that FRs cannot be curtailed; except during Emergency.
Then we have Article,32 & 226, which we are going to discuss now.
Part III of the constitution talks about FRs It extends from Articles12 -35.
This means that Article 32, which is the topic of today's discussion, is in itself a Fundamental Right.
Now, Art. 32 mainly talks about two types of Rights and Powers.
firstly, it says that if an individual's FR is being violated,
Then he can directly use Art. 32 and approach the Supreme Court.
On the other hand, Art. 32 empowers the Supreme Court to issue 5 kinds of WRITS for the protection of FRs.Because of this feature of Art 32, the Supreme Court is known as "Protector & Guarantor"of FRS.
Dr. B.R. Ambedkar has called this Art. asn""the Heart & Soul of the Constitution.
The powers which are vested under Art. 32; exactly the same powers are given under Art. 226.
By using Art. 226 - You can approach a High Court.
Approach the highest court of the country, in case your FRs are violated.
Also, in order to protect your rights, it is not a rule that you first approach the High Court and then only approach the Supreme Court.
Although, when you DIRECTLY APPROACH THE SUPREME COURT, You will have to explain, as to why you did not 1st approach the High Court.
Art. 32 & 226 both provide for the issuance of Writs.
But there are 2 major differences between these ACT.
1st-The Writ issuing power laid down under Art. 32 - is only limited to the protection of FRs.
under Art. 226,writs could be issued for "any other purpose" in addition to FRs.
For example, a Writ against the decision of an administrative tribunal.
2nd - As Art 32 falls under Part III of the Constitution, the constitutional remedy under it is a FRs.
Whereas the remedy under Art. 226 is not a FR.
Main topic. But let me tell you a fact first!
There are 5 types of writ:
1. Habeas Corpus
2. Mandamus
3. Certiorari
4. Prohibition &
5. Quo warranto .
All 5 of them are Latin terms!
Till now we've understood that "Writ" means a kind of a Remedy.
So, writs have been classified under 5 heads.
HABEAS CORPUS
1st is Habeas Corpus; it means to have a body.
To produce a body. This is the most powerful and most used writ.
See, if the state illegally detains a person,
then such an individual by himself - or through his relatives or friends -
can use the Writ of Habeas Corpus for the release of that person.
So whenever you use this writ, SC or the HC asks the Detaining authority - That on what basis the person was detained?
If the basis is found to be unreasonable, then the detention ends and he is to be released with immediate effect!
except these four1.DETENTION IS LAWFULL
2. CONTEMPT OF COURT
3. DETENTION IS OUTSIDE THE JURISDICTION OF THE COURT
4. DETENTION IS BY A COMPETENT COURT
Rudul Shah V. State of Bihar AIR 1983 1086
In this case - A person who had already completed his period of detention - was still kept in prison for -14 year
In this case, the Writ of Habeas Corpus was used - which led to his immediate Release.
Additionally, he was given Exemplary Damages!
So the Writ of Habeas Corpus is used to demand the production or release of a person who is illegally detained.
MANDAMUS
2nd - Writ of Mandamus, which means, 'WE COMMAND'
You can use this Writ on any statutory, non-statutory, and Command them to perform their Public Duty.
i.e- Through this Writ, you can command a public official to perform his public Duty.
Gujarat State Financial Corporation v. Lotus Hotels AIR 1983 SC 848
In this case, the Financial Co-op had an agreement with the Lotus Hotels
that we will release the funds so that you can complete your construction work.
So, Lotus Hotels approach the Gujarat High Court
Gujarat HC by using the Writ of Mandamus directs.
The authority to perform the public duty which it promised to perform!
There is 1 condition pre-requisite for the application of Writ of Mandamus - There should be a Public Duty.
CERTIORARI
3rd - Writ of Certiorari, which means - 'To be Certified'
Though this Writ, SC & HC, can command the Lower Court to submit its records- for their Review.
In the review, it is checked - whether the Lower Court Judgments are illegal or not.
Now when can Lower Courts' judgments be Illegal?
1. Excess of Jurisdiction
2. Lack of Jurisdiction
3. Jurisdiction is Unconstitutional.
4. Violation of Principles of Natural Justice.
If the LCs Judgments are found to be illegal, then they are Quashed.
which means that their judgment has no value now and is not to be followed.
Examples:-
#Gullapalli Nageswara Rao v. APSRTC 1959 AIR 308 1959
#A.K. KRAIPAK v. UNION OF INDIA AIR 1970 SC 150
Both these cases relate to the Writ of Certiorari.
In both of these cases, their judgments were held to be illegal and the Union therefore Quashed.
PROHIBITION
Let's understand it this way
'Prevention is Better than Cure'
The difference that's between Prevention and Cure, the same difference exists between Prohibition and Certiorari.
Remember it this way: 'P' = Prevention = Prohibition. 'C' = cure =certiorari.
As we've learned that - if an illegal judgment is announced - then to quash it - to CURE the mistake- you have to use Certiorari.
But, if before the judgment is announced, if you want to PREVENT the mistake, then you use the Writ of Prohibition.
Prohibition = 'To Forbid'
So Prohibition is used until the Lower Court has pronounced the Judgment.
And if the LC has pronounced an illegal judgment - then you use Certiorari.
QUO WARRANTO
Let's understand the 5th Writ with the help of a simple example.
That you must have cleared college's Entrance Eligibility - whether it's. Clearing 12th Board or getting minimum marks required or qualifying Entrance exam.You must have qualified in College's Entrance Eligibility!
If it is found out that you have not cleared the Entrance Eligibility.Then you can be removed from the college.
Exactly this principle is followed in the Writ of Quo Warranto, which means'By what Authority'.
By using this Writ, Courts can question any Public Officer. by what authority have you assumed this Public Office?
If the Officer's Title is defective - then he has to vacate the Office!
Ex:- SC Bharti Raddy v.state of Karnataka 6th, march 2018
1. If you have to ask a Public Officer - that by what authority have you assumed the Office .
2. If you have to stop a Court from pronouncing a judgment - then you use the Writ of Prohibition.
3. If you want to stop the judgment from coming into Effect then you use the Writ of Certiorari.
4. If you want to command a public officer - to perform his public duty then you use the Writ of Mandamus.
5. And if you want to save a person from Illegal Detention - then use the Writ of Habeas Corpus.
5 WRITS -out of which only 'Quo Warranto' can be filed by anyone.
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