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Types of Writ under Article 32 and Article 226

Types of Writ under Article 32 and Article 226

Protection of Fundamental Rights has been discussed mainly in Article 13, Article 32, Article 226, and Article 359.

Article 13 talks about Judicial review whereas Article 359, which says that Fundamental Right cannot be curtailed except during Emergency.  And then we have Article 32 and Article 226.

Article 32 mainly talks about two types of Rights and Powers firstly, it says that if an individual's Fundamental Right is being violated then he can directly use Article 32 and approach the Supreme Court.  On the other hand, Article 32 empowers the Supreme Court to issue 5 kinds of WRITS for the protection of Fundamental Right, Because of this feature of Article 32, the Supreme Court is known as Protector and Guarantor of Fundamental Right.

Dr. B.R. Ambedkar called as this Article is the Heart and Soul of the Constitution. The powers which are vested under Article.32 exactly the same powers are also given under Article 226.  By using Article 226 we can approach a High Court.  Thus, these two Articles give us the power to approach the highest court in the country.

In case our fundamental rights are violated, in order to protect our rights, it is not a rule that we first approach the High Court and then only approach the Supreme Court.  Although, when you directly approach the Supreme Court, we will have to explain, as to why you did not first approach the High Court.  Article 32 and 226 both provide for the issuance of Writs.

There are two major differences between these Articles.  The Writ issuing power laid down under Article 32 is only limited to the protection of fundamental right whereas under Article 226,  writs could be issued for any other purpose in addition to fundamental rights.  A Writ against the decision of an administrative tribunal.  Article 32 falls under Part III of the Indian Constitution, the constitutional remedy under it is a Fundamental right, whereas the remedy under Article 226 is not a fundamental right. There are 5 types of writs: 1. Habeas Corpus; 2. Mandamus; 3. Certiorari; 4. Prohibition; &  5. Quo warranto.  All 5 of them are Latin terms.  Till now we`ve understood that Writ means a kind of a Remedy.  So, writs have been classified under 5 heads. 

Habeas Corpus

Habeas Corpus it means to have a body or To produce a body. This is the most powerful and most used writ.  See, if the state illegally detains a person, then such an individual by himself - or through his relatives or friends can use the Writ of Habeas Corpus for the release of that person.  So when we use this article, the Supreme court or High Court ask the detection authority that on what basis was the person was detained? If cause is found to be unreasonable, detention immediately suspends and has to be released with immediate effect.

 

We cannot use the writ of Habeas Corpus in the following 4 conditions: 

1.     If the detention is lawful

2.     Contempt of Court

3.     If the detention is by a competent court

4.     If the detention is outside the jurisdiction of court


Case Law

Rudul Shah v. the State of Bihar, In this case, A person who had already completed his period of detention - was still kept in prison for extra 14 years in Jail. In this case the Writ of Habeas Corpus was used Hon’able court-ordered to release him immediately and was given him exemplary damages also so Writ of Habeas Corpus is used to demand of production or release of a person who is illegally detained. 

Writ of Mandamus

Writ of Mandamus, which means, 'WE COMMAND'  You can use this Writ on any statutory, non-statutory,  University, Tribunals, etc.  and Command them to perform their Public Duty. by this Writ, we can command a public official to perform his public duty. 

Case Law

Gujrat state financial corporation ltd vs Lotus Hotel AIR 1983 SC 848

In the writ of Mandamus, the Financial Corporation ltd  had an agreement with the Lotus Hotels that  we will release the funds so that you can complete your construction work.  Later, they refuse to release the Funds  So, Lotus Hotels approach the Gujarat High Court   by using the Writ of Mandamus, Gujrat High Court directs the Authority to perform the Public Duty which was promised to perform.  There is a condition prerequisite for the application of Writ of Mandamus - There should be a Public Duty.

Writ of Certiorari

Writ of Certiorari, which means  'To be Certified'  Thought this Writ, Supreme Court, and High court can command the Lower Courts to submit its records for their review.  In the review, it is checked whether the Lower Court Judgments are illegal or not. 

Now when can Lower Courts judgments be Illegal? 

1.     Excess of Jurisdiction

2.     Lack of Jurisdiction

3.     Jurisdiction is Unconstitutional

4.     Violation of Principles of Natural Justice

If the Lower Court Judgments are found to be illegal, then they are quashed which means that their judgment has no value now and is not to be followed. 

In the case of Gullapalli Nageswara Rao vs APSRTC,  the judgment of the lower court was held to be illegal and therefore Quashed.

Writ of Prohibition

Writ of Prohibition and Writ of Certiorari has a very small the difference if an illegal judgment is announced then to Quash it, we use a writ of Certiorari  But, if before the judgment is announced, if we want to prevent the mistake, then we use the Writ of Prohibition, here the meaning of prohibition is  'To Forbid'  So Prohibition is used until the Lower Court has pronounced the Judgment  and if the Lower court  has pronounced an illegal judgment then we use writ Certiorari 

Quo Warranto'

Quo Warranto, which means 'By what Authority’ By using this Writ, Court can question to any Public Officer that by what authority have you assumed this Public Office?  If the Officer`s Title is defective - then he has to vacate the Office. The petition of Quo Warranto is filed by anyone.

 

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