Indian constitution provides fundamental rights under Part Three. In relation to protection and safeguard of fundamental rights, there are four constitutional remedies provided under Article 13, Article 32, Article 226, and Article 359. Article 13 deals with the power of judicial review, Article 32 and 226 deals with the writs and Article 359 states that the fundamental rights cannot be dismissed unless there is a situation of emergency.
The Supreme Court and High Courts have the power to issue the writ under article 32 and 226 respectively.
Article 32 is one of the fundamental rights and is referred as the heart and soul of the Indian constitution by Dr. Ambedkar. It empowers the Supreme Court to issue five kinds of writs and because of thisSupreme Court is also called guardian and protector of fundamental rights. There are five writ petitions which can be filed before the Supreme Court and various High Courts which are as follow:
- Habeas Corpus
- Quo Warranto
1. Habeas Corpus: This is a Latin term which means ‘to have a body’ means to produce a body. If the state illegally detains someone then his friends or relative on his behalf can file the writ petition in the Supreme Court or high court. The Court then asks the state under which authority and grounds the arrest was made. If the grounds were unreasonable then the court can ask the state to free the individual from detention.
There are four conditions when an individual cannot use Habeas Corpus:
- Lawful detention.
- Contempt of court.
- Detention is outside the jurisdiction of the competent court.
- Detention by competent court.
2. Mandamus: This is a Latin term which means ‘to command’. In this writ, a higher court can command the lower court, tribunal, forum or any other public authorities to perform their duties.
Requirements for issuing the writ of mandamus:
- Existing legal rights.
- The legal right should be enforceable by the court.
- Enforcement of such legal rights is the duty of public authorities.
- Such duty is public.
3. Prohibition: The name itself suggests that this writ is issued by the Supreme Court or High court to prohibit the lower court.
There are two requirements for exercising this writ:
- A lower court is working in excess of its jurisdiction.
- A lower court is working in absence of its jurisdiction.
If the writ is allowed by the Supreme Court or high court against the proceeding going on in lower court then after such allowance it comes to an end.
4. Certiorari: This is a Latin term which means ‘to be certified’. One can file the writ of certiorari in the apex court for transfer of his case to the superior authority for proper consideration. It can be issued against inferior courts or tribunals.
This writ can be issued against the subordinate court and quasi-judicial body under three conditions. If they are acting:
- In excess of its jurisdiction.
- In absence of jurisdiction.
- In an improper manner and not making proper use of its jurisdiction.
5. Quo Warranto: it means ‘by what authority or on whose authority one is holding public office’. This writ issued to restrain a person from acting in the authority of public office which he is not entitled to hold.
The Supreme Court gave two requirements for issuing the writ of Quo Warranto:
- The post in dispute is a public post.
- The person holding public office without any legal authority.
STEPS FOR FILING WRIT PETITION
- Hire a lawyer for drafting your writ petition.
- File the drafted petition at the filing counter of the court.
- On the date of hearing the court admits your petition and send summons to call another party.
- The court will fix another date for the hearing, in the presence of another party, if they choose to appear.
- The court will consider all the material before it and after considering that material grant the relief.