Theme: Constitution

The Constitution of India, 1950 grants certain rights to the citizens of India. If these rights are violated, citizens should also have the right to enforce them or remedy the violation. The Constitution provides for certain remedies that people can use to enforce their fundamental rights. A person can file a writ petition before the Supreme Court or concerned High Court to enforce their fundamental rights.¹ The petition can be for the issue of any of the five types of constitutional remedies. The right to apply to the Supreme Court for constitutional remedies is also a fundamental right. 

1. Articles 32(1) and 226,  Constitution of India, 1950. [↩]

There are five kinds of constitutional remedies available.¹ These are:

1. Habeas Corpus 

The term ‘habeas corpus’ literally means ‘produce the body’. In this context, it refers to a direction from a court to bring a person before the court. If a person is illegally restrained and deprived of their liberty, a writ petition for habeas corpus can be filed to ask the court to secure their release. The court can issue the writ of habeas corpus to any public authority having a person unlawfully in their custody and order the authority to bring the person before the court. In this manner, the court inquires into the circumstances of any person’s detention and can give the necessary judgement against unlawful restraint.(( Kanu Sanyal v. District Magistrate, Darjeeling, 1973 AIR 2684.)) The court can also issue the writ of habeas corpus in cases of illegal inhuman treatment of prisoners.(( Sunil Batra v. Delhi Administration, 1980 AIR 1579.)) The application for habeas corpus can be filed by the imprisoned/detained person or by anyone else who is not an absolute stranger to them.

For example, if a prisoner is being ill-treated in prison, they can file a habeas corpus petition against such treatment.  

 

2. Mandamus 

The court issues a writ of mandamus to order an authority to perform their public duty as required by law.(( State of Mysore & Anr. v. K.N. Chandrasekhara & Anr., 1965 AIR (SC) 532.)) To get this remedy, it is necessary to show that the public authority has a mandatory legal duty and the petitioner has a legal right to enforce its performance.(( Rai Shivendra Bahadur v. Governing Body of Nalanda College, AIR 1962 SC 1210.)) However, people cannot file for a writ of mandamus against the President of India or the Governor of a State(( Article 361, Constitution of India, 1950.)), or officers in legislatures.² Before applying for mandamus, the petitioner should have first approached the authority with a distinct demand which the authority refuses to enforce.(( Saraswati Industrial Syndicate Ltd. v. Union of India, 1975 AIR 460.)) 

For example, if, despite repeated complaints, a Municipal Corporation refuses to perform its legal duty of supplying water to an area, a person living in that area can file a mandamus petition to make the Corporation perform its duty. 

 

3. Certiorari  

The writ of certiorari is applicable when someone with legal authority and a judicial duty to make decisions affecting the rights of people, exceeds their legal authority. The court can issue this remedy to cancel the order of any lower judicial authority which has exceeded its legal powers and made a decision despite not having the power to do so.(( Province of Bombay v. Kusaldas S. Advani & Ors., 1950 AIR 222.))

For example, if an Industrial Tribunal delivers a judgement on a non-industrial dispute without having the authority to do so, an aggrieved person can approach the concerned High Court/Supreme Court with a petition for certiorari to cancel the Tribunal’s decision.    

 

4. Prohibition 

The court can issue the writ of prohibition to order any lower court/tribunal to stop legal proceedings on a certain matter.(( East India Commercial Company Ltd. v. The Collector of Customs, 1962 AIR 1893.)) This remedy is used to restrain a lower judicial authority from exceeding its legal authority and to confine lower courts/tribunals within their judicial boundaries. Prohibition can also be used in case a lower judicial authority has not obeyed the rules of natural justice i.e. if the authority shows bias or does not hear out both parties.(( S. Govinda Menon v. Union of India, 1967 AIR 1274.))

For example, if an Industrial Tribunal takes up a non-industrial dispute without having the authority to judge the dispute, an aggrieved person can approach the concerned High Court/Supreme Court with a petition for prohibition to stop the ongoing legal proceedings before the Tribunal.     

 

5. Quo Warranto

The writ of quo warranto is a remedy that allows the court to ask any person who holds a public office to prove their right to hold the office. In case they don’t have the right to hold the public position, they will be removed from that office by judicial order. This remedy controls the executive from making illegal appointments to a public office and protects citizens from people who illegally hold public office depriving citizens of their rights. To claim quo warranto, a petitioner has to show the court that the office is a public office and that the person holding it has no legal authority to hold the office. This will lead to an inquiry on whether their appointment has been made legally.(( The University of Mysore v. Govinda Rao, 1965 AIR 41.))

For example, if someone feels that the Speaker of a Legislative Assembly does not have the qualifications to hold this public office, they can approach the  Court to issue a writ of quo warranto to inquire about the appointment.

 

1. Article 32(2), Constitution of India, 1950. [↩]
2. Articles 122(2) and 212(2), Constitution of India, 1950. [↩]

Any aggrieved person whose fundamental rights have been violated can avail constitutional remedies by filing a writ petition before the Supreme Court or the High Court.(( Articles 32 and 226, Constitution of India, 1950.)) 

For habeas corpus(( Sunil Batra v. Delhi Administration, 1980 AIR 1579.)) and mandamus(( Bandhua Mukti Morcha v. Union of India, 1984 AIR 802.)), people other than the aggrieved person can also file a petition to seek a particular remedy. 

It is important to understand that not all fundamental rights are available to all people. For instance, the right to equal opportunity in employment(( Article 16, Constitution of India, 1950.)) and freedom of speech and expression¹ are available only to citizens. On the other hand, fundamental rights such as the right to life(( Article 21, Constitution of India, 1950.)) and the right to be treated equally before the law² are available to all people, irrespective of whether they are citizens or non-citizens. A person can file a writ petition seeking constitutional remedies to enforce any fundamental rights which are available to them.

1. Article 19(1)(a), Constitution of India, 1950. [↩]
2.  Article 14, Constitution of India, 1950. [↩]

A person can file a writ petition before the Supreme Court of India or the concerned High Court of that state to enforce their fundamental rights.

The Supreme Court has the power to provide constitutional remedies to any person whose fundamental rights need to be protected. The right to seek constitutional remedies before the Supreme Court is by itself a fundamental right of any person. However, the right to seek relief with the Supreme Court can be suspended during a period of emergency.(( Article 32, Constitution of India, 1950.)) 

High Courts also have the power to provide constitutional remedies. Apart from fundamental rights, the High Courts also have the power to issue constitutional remedies for other purposes as well, such as protecting other legal rights.¹

1. Article 226(1), Constitution of India, 1950.))  However, the right to seek constitutional remedies before any High Court is not a fundamental right. There are territorial restrictions and a writ petition for constitutional remedies should be filed only to the concerned High Court which has authority in the area where the legal violation occurs.(( Article 226(2), Constitution of India, 1950. [↩]

1. If someone files a writ petition before a High Court for a particular matter, they cannot file another petition seeking relief under the same writ before the Supreme Court.¹
2. Though there is no specific time limit for filing a writ petition, the Supreme Court or High Court can refuse to grant relief to a petitioner if there is an avoidable delay in filing the petition which affects the merits of the claim.²

1.  Tilokchand Motichand & Ors. v. H.B. Munshi & Anr., 1970 AIR 898. [↩]
2. Tilokchand Motichand & Ors. v. H.B. Munshi & Anr., 1970 AIR 898. [↩]

The five constitutional remedies provide for different kinds of relief. These are mentioned below:

 

1. Habeas Corpus: Under this, a petition can be filed by any aggrieved person or anyone on behalf of the aggrieved person for the relief to not be illegally kept in police custody.(( Sunil Batra v. Delhi Administration, 1980 AIR 1579.)) A petition can also be filed on behalf of a prisoner who is being ill-treated in prison.(( Sunil Batra v. Delhi Administration, 1980 AIR 1579.))
2. Mandamus: Under this, a petition can be filed by any aggrieved person who seeks a public authority to do something that they are supposed to do or not do something that they are not supposed to do. For instance, if a person has not been appointed to a position they were supposed to be in, relief can be sought by such an aggrieved person by filing a petition.(( State of Mysore & Anr. v. K.N. Chandrasekhara & Ors., 1965 AIR (SC) 532.)) 
3. Certiorari– This is filed by a person whose case is decided by a court which does not have the necessary power to do so. Such a person may seek the relief of their case being decided by an appropriate court after the existing decision is quashed.(( Province of Bombay v. Kusaldas S. Advani & Ors., 1950 AIR 222.)) 
4. Prohibition– This is filed by a person whose case is being decided by a court which does not have the power to decide it. Such a person may seek the relief of their case being transferred to the appropriate court while the case is still going on.(( S. Govind Menon v. Union of India, AIR 1954 Pat 297.)) 
5. Quo Warranto– Relief under this can be sought by a person who is aggrieved by a person being appointed to a position in a government office which they do not have the requisite qualification to hold.(( The University of Mysore v. C.D. Govind Rao, 1965 AIR 491.))

Relief can also be sought by an aggrieved person against the appointment of any High Court judge.(( Shiam Sundar v. State of Punjab, Civil WP No. 607 of 1956.))