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- It confers the right to remedies for the enforcement of the FRs of an aggrieved citizen.
- Provisions:
- The right to move the SC for the enforcement of the FR is guaranteed.
- The SC shall have power to issue directions or orders or writs for the enforcement of a FR.
- Parliament can empower any other court to issue directions, orders and writs of all kinds.
- The right to move the SC shall not be suspended except by President during a national emergency (Art 359).
- It is a basic feature of the Constitution.
- Supreme Court as the defender and guarantor of the FR of the citizens.
Types of writs
Writs are judicial decree or order issued to enforce fundamental rights. India follows English model of writs known as prerogative writs. These are of 5 types:
| Writ | Explanation |
|---|---|
| Habeas Corpus | • It is a Latin term meaning ‘to have the body of’. • It is to release someone unlawfully detained or imprisoned. • It can be issued against both public authorities as well as private individuals. |
| Mandamus | • It means ‘we command’. • It is issued by the court to a public official asking him to perform his official duties. • It cannot be issued against: o a private individual, o to enforce departmental instruction, o when the duty is discretionary, o to enforce a contractual obligation, o against the president of India or governors, o against the chief justice of a high court. |
| Prohibition | • 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. • It directs inactivity unlike mandamus that directs activity. • It can only be issued against judicial and quasi judicial authorities, not against- o Administrative authorities o Legislative bodies o Private individuals or bodies. |
| Certiorari | • It means ‘to be certified’ or ‘to be informed’. • It is issued by a higher court to a lower court or tribunal to transfer a pending case or to squash the order of the latter. • It is both preventive as well as curative. • It can be issued against administrative authorities but not against legislative bodies and private individuals. |
| Quo-Warranto | • It means ‘by what authority or warrant’. • It is issued to enquire into the legality of person’s claim to a public office. • It can be issued only in case of a substantive public office created by statute or Constitution, but not in case of ministerial or private office. • This can be sought by anyone and not necessarily by the aggrieved person. |
Difference between writ Jurisdiction of Supreme court and High Court
| Basis | Supreme court | High Court |
|---|---|---|
| Scope of Rights | Writs can be issued to enforce fundamental rights | Writs can be issued to enforce fundamental rights and legal rights. |
| Territorial Jurisdiction | Across the entire territory of India | Only within their territorial jurisdiction |
| Nature of Remedy | Mandatory for SC to issue writs as it itself is a fundamental right | HCs have discretionary powers under Article 226 |
Significance of Constitutional remedies
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- R. Ambedkar: It is the soul of the Constitution and the very heart of it.
- Upholds the rule of law
- Act as a mechanism for judicial oversight to prevent misuse of power
- Strengthen democratic governance
- Promote accountability in the functioning of the government.
