Right to move Supreme Court: A fundamental right

The Indian Constitution provides some fundamental rights to all persons under Part III of the Indian Constitution. These fundamental rights are available to all the Indian citizens. Some of these fundamental rights are also available to non-citizens such as Right to Life and Personal Liberty under Art. 21. Unlike the Directive Principle of State Policy, Fundamental Rights are enforceable in nature. An individual can always enforce his Fundamental Rights against the state. But in certain cases he can also enforce them against private institutions or individual, for example right to Abolition of Untouchability under Art. 17 is available against everyone. Under the Art. 32 of Indian Constitution, every individual have a right to move Supreme Court to enforce his or her Fundamental Rights. The Supreme Court is empowered to issue certain writs to enforce the Fundamental Rights. Art. 32(2) of Indian Constitution states:

“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.”

Writs are orders or directions which can be issued either by the High Courts (under Article 226) or by the Supreme Courts (under Article 32). This article will be dealing only with the writs issued by the Supreme Court under Article 32. The Supreme Court can issue five different types of writs which are discussed below:

  • Habeas Corpus

Habeas Corpus is a Latin phrase which literally means ‘you may have the body’. The Supreme Court can issue this writ if a person is arrested or detained without a lawful justification.  When a person is arrested he has a right to know about the grounds of his arrest and he must be produced before the nearest Magistrate within 24 hours of his arrest excluding the time which is necessary to reach to such magistrate. If he was not produced before the Magistrate within such time, the Supreme Court can issue the writ of Habeas Corpus to free him.

  • Mandamus

Mandamus means ‘we command’. The Supreme Court can issue the writ of Mandamus if a government authority is not enforcing the fundamental rights of the individual. The Supreme Court can also issue this writ when a public authority entrusted with some work is not doing the given work properly. Generally the writ of Mandamus is issued against the executive in order to ask or order them to work in accordance with the mandates of the legislature. The court can issue continuing Mandamus if earlier Mandamus is become futile.

  • Prohibition

When an inferior court exceeds its jurisdiction while deciding a particular case, the writ of Prohibition can be issued by the Supreme Court to prohibit the inferior court from exceeding its jurisdiction. Writ of Prohibition enables the Supreme Court to act as supervisor over the lower courts.

  • Quo Warranto

The writ of Quo Warranto means ‘by what authority’. When a public authority act in a certain manner which is not authorized or when an individual occupy a public office without a proper authority the writ of Quo Warranto can be issued to restrain such public office from acting in such manner or the individual from occupying that position.

  • Certiorari

Certiorari can be issued by the Supreme Court to the inferior courts to transfer a case from the inferior court to superior courts if the Supreme Court thinks that the lower court has committed some mistakes in deciding the case or if the inferior court is incompetent to decide on a particular matter.

It is not necessary that in order to issue the writs there should be the infringement of the Fundamental Rights, mere threat of infringement of Fundamental Rights can also result in issuing of the writs. The Court has discretion to deny the remedy under Art. 32 if there is an unreasonable delay in filing the writ petition. An individual can file the writ petition only for the Fundamental Rights, he or she cannot file a writ petition for the enforcement of Directive Principle of State Policy or any Government policy. When a Court issues writs, non-compliance with those writs can be considered as the contempt of the court and suitable punishment can be imposed. Thus the right to move the Supreme Court to enforce one’s Fundamental Rights is an important right which enables the general public to keep checks and balances on the power of the Government Authorities and ensure good governance.



Vishwanath Rajput

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