The Writs

The Writs

• For enforcement of fundamental rights, the judiciary has been armed with the power to issue the writs.
• The power to issue these writs for the enforcement of the Fundamental Rights is given by the Constitution to the Supreme Court [Ref: Art. 32] and High Courts. [Ref.: Art. 226]

• Supreme Court has the power to issue writs only for the purpose of enforcement of the Fundamental Rights whereas under Art. 226 a High Court can issue writs for the purpose of enforcement of Fundamental Rights and/or for the redress of any other injury or illegality.
• Supreme Court can issue a writ against any person or Government within the territory of India, while High Court can issue a writ against a person, Government or other authority only if they are located within the territorial jurisdiction of the High Court.
• A writ of Habeas Corpus calls upon the person who has detained another to produce the latter before the court, in order to let the court know on what ground he has been confined and to set him free if there is no legal justification for the imprisonment. The words 'habeas corpus' literally mean 'to have a body'. This writ may be addressed to an official or a private person, who has another person in his custody.
• Mandamus literally means a command. It commands the person to whom it is addressed to perform some public or quasi-public legal duty which he has refused to perform and the performance of which cannot be enforced by any other adequate legal remedy. Mandamus cannot be granted against the President, or the Governor of a state, for the exercise and performance of the powers and duties of his office.
• The writ of prohibition is a writ issued by the Supreme Court or a High Court to an inferior court forbidding the latter to continue proceeding therein in excess if its jurisdiction or to usurp a jurisdiction with which it is not legally vested.
• While mandamus is available not only against judicial authorities but also against administrative authorities, prohibition and certiorari are issued only against judicial or quasi-judicial authorities.
• Though prohibition and certiorari are both issued against Courts or Tribunals exercising judicial or quasijudicial powers, certiorari is issued to quash order or decision of the Court or Tribunal while prohibition is issued to prohibit the Court or Tribunal from making the ultra vires order or decision. Prohibition is available during the pendency of the proceedings and before the order is made, certiorari can be issued only after the order has been made.
• Quowarranto is a proceeding whereby the court enquires into the legality of the claim which a party asserts to a public office and to oust him from its enjoyment if the claim is not well founded.
• The conditions necessary for the issue of a writ of quo warranto are as follows:

• The office must be public and it must be created by a statute or by the constitution itself.
• The office must be a substantive one and not merely the function or employment of a servant at the will and during the pleasure of another.

• There has been a contravention of the Constitution or a statute or statutory instrument, in appointing such person to that office.

• The limitations on the enforcement of the fundamental rights are as follows :Parliament has the power to modify the application of the Fundamental Rights to the members of the Armed Forces, Police Forces or intelligence orgnisations so as to ensure proper discharge of their duties and maintenance of discipline amongst them.   [Ref. Art. 33]

• When martial law is in force, Parliament may indemnify any person in the service of the Union or a State for any act done by him. [Ref. Art. 34]
• Certain fundamental rights guaranteed by the Constitution may remain suspended, while a Proclamation of Emergency is made by the President under Art. 352.

Right to Information

• Right to information has been granted to every citizen of India under Right to information Act, 2005 which came into force on 12^th October, 2005.
• It is not a Fundamental Right but it entails a clause for penalty in case of delay in giving information to the applicant.
• Information Commission has been set-up at central and state levels to oversee implementation of the Act.