Part III of Indian Constitution talks about the Fundamental Rights. Fundamental Rights are those rights which are so crucial for humans to live a secure and dignified life. These rights cannot be taken away by the government through some law or policies. If state formulates some laws or policies that infringes these fundamental rights, then the Courts can declare those laws and policies to be void.
One such fundamental right is of Right to Constitutional Remedies. Dr. B.R. Ambedkar, termed this right to be the “heart and soul” of Indian Constitution, because if the citizens do not have the power to enforce their rights, then the Fundamnetal Rights are of no use. Even if the citizens had the right to approach the court, but the fact that its their fundamental right to approach the apex court assign it with the significance. Secondly, mentioning this right with other fundamental rights make it a part of the basic structure of the constitution.
It empowers the people of the nation to approach High Courts or Supreme Court when their fundamental rights are violated. The SC and HCs can issue order and give directions to the state for the enforcement of violated rights.
Courts can issue various special orders known as “Writs”. Article 32 also empowers Parliament to authorise any other court to issue these writs. Supreme Court issues writs under Article 32 whereas Article 226 empowers all the high courts of India to issue the writs. Writs of India are borrowed from English law where they are known as ‘Prerogative writs’.
- Habeas Corpus – under this writ, Court orders that the arrested person should be presented before it. It can even free the arrested person if the grounds of arrest are not satisfactory. The order is directed towards the person or authorities against whom the redressal is demanded. In case of disobedience to the court’s order, it will become Contempt of Court. The power of the court is not only injunctive in nature (preventing further breach of rights), but also remedial in nature (provides for the remedies for those rights which were already breached). It can be issued against private individual.
- Mandamus – this writ is issued when the court feels that the officer of a particular office is not performing his/her legal duty, because of which the fundamental right of the individual is being violated. It 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.
- Prohibition – issued by the higher court when it feels that the issue with which the lower court is dealing is not within the jurisdiction of the lower court. It is issued by a higher court to a lower court. Writ of Prohibition can only be issued against judicial and quasi-judicial authorities.
- Quo Warranto – when court feels that the person holding a public office is not entitled to hold it, it restricts the person from using further powers of that office. Through this writ, the court inquires ‘by what authority’ the person supports his or her claim. Through this writ, the court enquires into the legality of a claim of a person to a public office. This writ prevents the illegal assumption of a public office by an individual.
- Certiorari – under this writ, the court orders a lower court or another authority to transfer a pending case to higher authority or court. he 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.