The Constitution of India is foundation law recognized for the structure of Republic of India. It came into force on 26th January 1950. The Constitution of India is divided into 22 parts, which contains various articles relating to citizenship, fundamental rights & duties, state policy, union government, state government, union territories, municipalities, panchayats, co-operative societies, courts, elections, central & state public services, official languages, tribunals, amendments, emergency provisions, scheduled & tribal areas, union & state’s relations, trade & commerce in India, finance, property, contracts & suits and special provisions relating to classes.
The Part III of the Constitution of India is significant element relating to the establishment of fundamental rights. Fundamental rights are indispensable rights which are instituted for moral, just & spiritual developments of society. These rights are originally obtained from many sources which include England’s bill of rights, US bill of rights and France’s declaration of the rights of man.
The heads of fundamental rights recognised under the Constitution of India:-
- Right to equality (Article 14-18)
- Right to freedom (Article 19-22)
- Right against exploitation (Article 23 & 24)
- Right to freedom of religion (Article 25-28)
- Educational & Cultural rights ( Article 29 & 30)
- Right to constitutional remedies (Article 32 to 35)
Part III of the Constitution provides legal remedies for Indian Citizen against the violation of the fundamental rights by Central or State Government or any Individual or Institution. Indian Citizens can move to the High Court or the Supreme Court for the enforcement of their rights.
These remedies are in legal terminology broadly depicted as “Writ”. Article 32 empowers person to move to the Supreme Court, whereas Article 226 empowers person to move to the High Court for the protection of their fundamental rights.
There are five kinds of writs viz. Habeas Corpus, Mandamus, Certiorari, Prohibition and Quo-warranto. The Writs are issued by High Court and Supreme Court to the Citizens of India if their fundamental rights are violated by any person, Institutions or Government.
- Habeas Corpus
Habeas Corpus is a latin term. It means “You may have a body”. This writ is issued to produce a person before a court who has been detained illegally in custody. This writ is issued by the Court in case any person is jailed without following due process of law.
- Mandamus
Writ of Mandamus means Command to an inferior court or ordering person. It is issued to a subordinate court, an officer of the government, or a corporation or an institution commanding the performance of their statutory duties. It is a command to perform any action or refrain from doing it, for safeguarding legal rights of a Citizen.
- Certiorari
Certiorari is a writ issued to a lower court by a superior court, when lower courts acted beyond the range of their jurisdictions. The aggrieved person can challenged the decisions of the lower courts by filing this writ petition. The superior court reviews the matter and passed the writ of certiorari if lower court’s lacks jurisdiction. In this scenario, superior court’s overruled the orders/judgement of lower courts.
- Prohibition
Writ of Prohibition is issued by a higher court to a lower court to enforce indolence in the jurisdiction. It prevents lower courts from proceeding in a case which is not falling under their jurisdiction.
- Quo-warranto
In this writ, the court finds out the legality of a claim of a person to a particular public office. This writ prevents the illegal or unauthorised assumption of a public office by any individual.
The fundamental rights can be suspended in the circumstances of National Emergency issued under Article 352 when the security of India or of any part of the territory thereof is threatened, whether by war or external aggression or armed rebellion. However, fundamental rights given under Article 20 relating to protection in respect of conviction of offence & Article 21 relating to protection of life and personal liberty are not suspended after proclamation of National Emergency under Article 352. The financial emergency cannot affect the fundamental rights.
-Adv. Paresh P. Acharekar