1. Habeas Corpus

It is the most valuable writ for personal liberty. Habeas Corpus in Latin means, “Let us have the body, “A person, when arrested or detained, can move the Court for the issue of Habeas Corpus. It is an order by a Court to the detaining authority to produce the arrested person before it so that it may examine whether the person has been detained lawfully or otherwise. If the Court is convinced that the person is illegally detained, it can issue orders for his release. The writ has only one purpose, to set at liberty a person who is confined without legal justification. The writ can be issued against both the State and private individual or organizations. While a writ must be moved by the person whose Fundamental Rights has been infringed, it is not easily possible in case of a detained person. The petition of Habeas Corpus may be moved on behalf of the prisoner by his friend or social worker or even a stranger. The writ may be moved in the custody of a child from any other person. The Supreme Court held that while dealing with the application of writ of Habeas Corpus, production of the body of the person alleged to be unlawfully detained was not essential.

2. Mandamus

Mandamus means “We Command “. Mandamus is an order from a superior court to a lower court or tribunal or public authority to perform his legal duty. Simply, it is a writ issued to a public official to do a thing which is a part of his official duty, but, which, he has failed to do, so far. It demands activity from an authority that has either not acted or refused to act, according to its legal duty. This writ cannot be claimed as a matter of right. It is the discretionary power of a court to issue such writs. Mandamus will not lie against discretionary acts of a public authority as distinguished from a duty. It will also not lie against a private individual unless they are entrusted with public duty. This writ cannot be issued against the President and the Governors and the judges acting in their judicial capacity.

3. Prohibition

Writ of Prohibition means to forbid or to stop and it is popularly known as ‘Stay order’. It is a writ issued by a superior court to lower court or a tribunal forbidding it to perform an act outside its jurisdiction. After the issue of this writ, proceedings in the perform court etc. come to a stop. The objective is to keep the inferior courts or the quasi-judicial bodies within the limit of their respective jurisdiction. Writ of Prohibition is, thus, not available against a public officer not vested with judicial or quasi-judicial powers. It does not lie against Legislative or Executive functions. It cannot be issued against private persons or associations. The writ can be issued only while the proceedings of a case are going on. If the court or tribunal has passed final orders, Prohibition would not lie. The supreme Court can issue this writ only where a Fundamental Right is affected. The difference between Mandamus and Prohibition is that while the former can be issued against judicial as well as administrative authorities, the latter is issued only against the judicial or quasi-judicial authorities. While the writ Mandamus commands activity i.e. doing of particular thing, the writ of Prohibition is essentially addressed to a subordinate court commanding inactivity.

4. Certiorari

Literally, Certiorari means ‘to be certified’. The writ of Certiorari is issued by a superior court to some inferior court or tribunal to transfer the matter to it or to some other authority for proper consideration. The writ of Certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court.

The purpose of this writ is to secure that the jurisdiction of an inferior court or tribunal is properly exercised and that it does not usurp of writ of Certiorari; which are as under:

1. There should be court, tribunal or an officer having legal authority to determine the question of deciding Fundamental Rights with a duty to act judicially.

2. Such a court, tribunal or officer must have passed an order without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or law. The order could also be against the principle of natural justice or it could contain an error of judgment in appreciating the facts of the case.

A High Court can issue Certiorari against itself in administrative capacity but not in judicial capacity. It cannot issue the writ to another High Court or another bench of the same High Court. While the Writ of Prohibition is available during the proceedings before a sub-ordinate court, Certiorari can be resorted to only after the order or decision has been announced. In other words, the writ of Prohibition is available at the earlier stage, Certiorari is available on similar grounds at a later stage. Thus, Certiorari and Prohibition are instruments to control an inferior court or tribunal which has exceeded its jurisdiction or wrongly exercised jurisdiction. On the other hand, Mandamus is issued against an inferior court or tribunal which has declined to exercise its jurisdiction. Also, the object of Prohibition is prevention, while the object of Certiorari is both prevention and cure.

5. Quo Warranto

The word Quo Warranto literally means “under what authority?” This kind of a writ is issued to ensure that the person holding a public office to which he is not entitled. The writ of quo-warranto is used to prevent illegal assumption of any public office or usurpation of any public office by anybody. The fundamental basis of the proceeding of Quo Warranto is that the public has an interest to see that an unlawful claimant does not usurp a public office. For example, a person of 62 years has been appointed to fill a public office whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a writ of Quo Warranto against the person and declare the office vacant.

Public Interest Litigation (PIL)

The condition of Article 32 or for that matter any other article was generally that only the aggrieved person could move the Court. But, this condition has been relaxed. Now any person can go to court against the violation of the Fundamental Right, if it is of social or public interest. It is called Public Interest Litigation (PIL). Under the PIL any citizen or group of citizen can approach the Supreme Court or a High Court for the protection of public interest against a particular law or action of the government. One can write to the judges even on a postcard. The Court will take up the matter if the judges find it in public interest. PIL has been discussed in detail in the chapter on Judiciary.

RESTRICTIONS ON FUNDAMENTAL RIGHTS

Parliament by law is allowed to put restrictions on Fundamental Rights of citizens under certain conditions, as follows:
1. Restrictions on Fundamental Rights of members of armed forces, intelligence forces, law and order (police, etc) and national security related forces, etc. (Art. 33);
2. Restrictions on Fundamental Rights of citizen while martial law is in force in any area (Art. 34); and
3. Restrictions on Fundamental Rights of citizens during the Proclamation of Emergency (Art 352).

FUNDAMENTAL RIGHTS AND NATIONAL EMERGENCY

Under the Indian Constitution, national emergency can be imposed by the President when the national security is threatened (Art. 352). Such proclamation impacts on the FRs in the following way:

1. As soon as the Proclamation of Emergency is made, the state is freed from limitations imposes by Article 19. Article 19 is automatically suspended, under Article 358. It means the Legislature and Executive are free to make any law or issue orders which may contravene or restrict the freedoms guaranteed by Article 19. A Citizen shall have no remedy for acts done against him, in the violation of rights under Article 19, by the Executive or Legislature during the operation of Emergency. Article 19 will revive as soon as Proclamation expires. The 44th Amendment Act, 1978, has further provided that Article 19 is suspended when a Proclamation of Emergency is made on ground of war or external aggression. Alternately, if the Proclamation is on grounds of armed rebellion, Art. 19 cannot be suspended under Art. 358.

2. During the operation of Emergency, the President may further declare by an order the suspension of the right to move a Court for the enforcement of any of the fundamental Rights. It means the Fundamental Rights remain theoretically alive, only the right to move to the Court for enforcement of these rights is suspended. The suspension of rights remains in force for the whole duration of Emergency or it may cease earlier as specified in the Presidential order. In other words, if such an order is issued the prerogative writs or to make any other order for the enforcement of any Fundamental Rights. Such Presidential order has to be laid before each House of Parliament for its approval. The 44th Amendment Act, 1978 provided an exception [Article 359-1(A)], that Art. 20 (protection in respect of conviction for offences) and Art.21 (Right to life and personal liberty) remain enforceable even during Emergency i.e. they cannot be suspended.

AMENDABILITY OF FUNDAMENTAL RIGHTS

The Fundamental Rights as provided in the Constitution of India are a guarantee against the actions of the State as well as individual who might hinder the life and liberty of any citizen of India. As said often, they are fundamental to the existence of life of an individual. However, a major debate arose whether these rights could be amended in view of the law making power of the Parliament. Technically it relates to Whether the Fundamental Rights are immune from Constitutional amendment or not, as provided under Article 368 relating to the power and procedure of amendment of the Indian Constitution by the Parliament. Article 13(2) states that the State shall not make any “law” which takes away or abridges, the rights conferred by Part III of the Constitution and any law made in contravention to Art.13(2) shall, to the extent of contravention, be void. The question is, whether the word “law” as used in Art. 13(2) includes then Parliament can amend any or all the Fundamental Rights; otherwise the Fundamental Rights are un-amendable.

The Supreme Court starting from Shankari Prasad vs. Union of India (1951)to Sajjan Singh vs. State of Rajasthan (1965), held in a number of cases that the word “law” as found in Article 13(2) should be taken to mean ‘rule or regulations made in exercise of constituent power’ and not to ‘Amendments to the Constitution made in exercise of constituent power’ of the Parliament. The Supreme Court, therefore, was of the view that Parliament by exercising its amending power under Art. 368 conferred on it by the Constitution, can amend any part any part of the Constitution including Part III. In the Golaknath v. State of Punjab case (1967) case, the supreme Court held that the Fundamental Rights contained in Part III of the Constitution “had been given transcendental position by the Constitution, so that no authority functioning under the Constitution including the Parliament exercising the amending power under Article 368 was competent to amend the Fundamental Rights.”

In order to remove the difficulties created by the decision of the Supreme Court in Golaknath case, Parliament enacted the 24th Amendment Act (1971), Parliament amended Article 13 and 368 to make it clear that Parliament has the power to amend any part of the Constitution including Part III and the word “law” as used in Article 13 does not include a Constitutional Amendment Act. The 24th Amendment Act, 1971 was challenged before the Supreme Court in the Keshavananda Bharati vs. State of Kerala case in 1973. The judgment upheld the validity of this amendment and also overruled Golaknath’s case. The Court in that case held that Parliament has the power, under Art. 368, to amend any provision of the Constitution, including the Fundamental Rights enshrined in Part III of the Constitution. However, the Court held that the Parliament’s amending power is subject to the ‘basic structure of the Constitution’. It invented the doctrine of ‘basic structure’ in the case. Though, it is to be noted that Supreme Court has not yet completely listed the Part III (Fundamental Rights as a whole ) of the Constitution as one of the basic feature of the Constitution .

The power of Parliament to amend Fundamental Rights and the doctrine of basic structure from Keshavanand judgement was again confirmed in Minerva Mills Case, 1980. Prior to that, the 42nd Amendment Act, 1976, inserted clauses (4) and (5) in Article 368 which proclaimed that “no amendment of the Constitution (including Fundamental Rights) shall be called into question in any court on any ground”. In Minerva Mills v. Union of India, 1980, the Supreme Court applying the ‘doctrine of basic structure’ invalidated clauses (4) and (5) of Article 368 as violation of basic feature of the Constitution . Therefore, Keshavanand judgment has been restored.