Protection Of Fundamental Rights And Writs

A writ is defined as:

A written order or mandatory process issued in the name of the sovereign, court, or judicial officer commanding the person to perform or refrain from performing an act specified therein. A formal written order issued by a body with administrative or judicial jurisdiction; this body is generally a court in modern usage.

 

The Writ was a royal order that was issued under the Royal Seal. "Writ" was originally a brief written command issued by someone in authority and "tested" or sealed by him to ensure its authenticity. When writing was a rare art form, the fact that a command was written was a distinguishing feature that set it apart from a hastily spoken command.

 

Writs in India date back to the Regulating Act of 1773, which saw the establishment of a Supreme Court in Calcutta by a charter in 1774.

 

An individual whose fundamental right (privilege) has been violated by an arbitrary administrative action may seek redress from the Court. "The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part," according to Article 32(2) of the Indian Constitution. Part III of the Constitution contains Article 32, which is a fundamental right. The Supreme Court is empowered under this Article to relax the Locus Standi custodial standard and allow general society to intervene in cases in the name of public interest litigation (PIL).

 

Any other court can issue these writs if Parliament (under Article 32) authorises it. Because no such provision has yet been made, only the Supreme Court and the high courts, and not any other court, can issue writs. Only the High Courts of Calcutta, Bombay, and Madras had the authority to issue writs prior to 1950. Article 226 now gives all high courts the authority to issue writs.

 

The Supreme Court's writ jurisdiction differs from that of a high court in three ways:

 

1.    The Supreme Court can only issue writs for the enforcement of fundamental rights, whereas a high court can issue writs for any purpose, including the enforcement of fundamental rights. The phrase "for any other purpose" refers to the enforcement of a common-law right. As a result, the Supreme Court's writ jurisdiction is narrower than that of the high court in this regard.

2. The Supreme Court can issue writs against a person or government across the entire Indian territory, whereas a high court can only issue writs against a person residing or a government or authority located within its territorial jurisdiction or outside its territorial jurisdiction if the cause of action arises within its territorial jurisdiction. As a result, the Supreme Court's territorial jurisdiction for issuing writs is broader than that of a high court.

 

3. Because an Article 32 remedy is a Fundamental Right in and of itself, the Supreme Court cannot refuse to exercise its writ jurisdiction. A remedy under Article 226 is, on the other hand, discretionary, and a high court may refuse to exercise its writ jurisdiction. Article 32 does not simply give the Supreme Court the authority to issue writs for the enforcement of fundamental rights or other rights as part of its general jurisdiction, as Article 226 does for a high court. As a result, the Supreme Court is established as a defender and guarantor of fundamental rights.

 

According to Article 32 of the Constitution, there are five different types of Writs: Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo warranto.

 

• Mandamus is in charge of activity. Prohibition imposes a state of inactivity. Prohibition brings an authority to a halt in the middle of a process. It prevents the usurpation of authority.

 

• Mandamus is a legal document that is usually sent to administrative authorities. In general, the courts and tribunals are governed by certiorari and prohibition.

 

• Certiorari and prohibition are tools for reining in a lower court that has overstepped its bounds or misapplied its authority. A writ of mandamus is issued against a lower court that has refused to exercise its jurisdiction.

 

• Mandamus can order a tribunal to follow the rules. Certiorari dismisses or remands the case due to a lack of jurisdiction or a clear error on the face of the record, among other reasons.

 

• Both Certiorari and Prohibition are based on the same grounds. When a case hasn't reached a conclusion, a prohibition is issued to prevent the tribunal from proceeding. Certiorarilies are cases in which a tribunal made a final decision after exercising jurisdiction where it didn't have any or exceeding its jurisdiction where it did.

 

• Prohibition's goal is to prevent crime. Certiorari's goal is both prevention and cure.

 

• Mandamus orders a person to perform a task for which they are legally obligated.

 

Quo warranto is a legal inquiry into whether a person in a position of authority has the legal authority to do so. If he is unable to back up his claim, he may be forced to leave.