Constitutional Remedies
Article 32 of the Constitution provides a guaranteed remedy for the enforcement of fundamental rights. The remedy is in the form of specific writs mentioned in the Article or any other appropriate order by the Supreme Court. A writ is a written court order by which one is summoned or required to do something. The writs mentioned in the Constitution have a long history in British Constitutional law and are therefore understood with precise meaning and importance. Hence when an aggrieved person seeks a remedy from the court through a particular writ, the nature of. the remedy itself is clear both to him and to the court. The writs mentioned in the Constitution are: Habeas Corpus; Mandamus; Prohibition; Certiorari; and Quo Warranto. Habeas Corpus: “Habeas Corpus” is a Latin term, which literally means, “you may have the body”. In India the power to issue a writ of habeas corpus is vested only in the Supreme Court and the High Courts. The writ is a direction of the court to a person who is detaining another, commanding him to bring the body of the person in his custody at a specified time to a specified place for a specified purpose. The writ has only one purpose; to set at liberty a person who is confined without legal justification; to secure release from confinement of a person unlawfully detained. The writ is issued not only against the State and its authorities but also to private individuals or organisations if necessary. While the Supreme Court can issue the writ of habeas corpus only against the State in cases of fundamental rights, the High Court can issue it also against private individuals illegally or arbitrarily detaining any other person.
Mandamus:
The Latin word “Mandamus” means. “we order”. The writ of Mandamus is an order of the Supreme Court or the High Court commanding a person or a body to do that which is his or its duty to do. For instance. a licensing officer is obliged to issue a license to an applicant to use all the conditions laid down for the issue of such license. Similarly, an appointing commonly should issue a letter of appointment to a candidate if all the formalities of selection are over and the candidate is declared fit for appointment. But despite the fulfilment of such conditions, the Onicer or the authority concerned refuses or fail to issue the license or the appointment letter, the aggrieved person has a right to seek the remedy through a writ of mandamus.
Certiorari:
Certiorari is a writ that orders the removal of a suit from a subordinate court to a superior court. It may be used before a trial takes place to prevent an excess or abuse of.. jurisdiction and to remove the case for trial to a higher court. It is invoked also after trial to quash an order which has been made without jurisdiction or in defiance of the rules of natural justice.
Prohibition:
A writ of Prohibition is issued primarily to prevent a subordinate court from exceeding its jurisdiction, or acting contrary to the rules of natural justice, For example, a judge may be restrained from hearing a case in which he is personally interested. The writ of Prohibition is a counterpart of the Writ of certiorari and an aggrieved person may make an application for the issue of both the writs simultaneously.
Quo Warranto:
An application for a writ of quo warranto seeks an order from the Supreme Court or High Court to restrain a person from acting in an office to which he is not entitled. It may also seek the office to be declared as vacant. What the court has to do is to determine whether there has been a usurpation of an office of a public ‘nature. For example, a member of a Municipal. The corporation may through an application of writ of quo warranto challenge the authority of the Mayor if he is of opinion that the Mayor was not properly elected.
Check out the assessment of fundamental rights here.