Fundamental Rights and Fundamental Duties (Part-2)

Constitutional Remedies refer to the legal mechanisms provided by the constitution of a country to safeguard and enforce the fundamental rights of individuals. These remedies empower citizens to seek relief from the judiciary when their constitutional rights are violated by the state or any other entity.

• Its significance made Dr. B.R. Ambedkar hail this right as the “heart and soul” of the Constitution.
• In India, the Supreme Court, the High Courts or any other courts empowered for the purpose can issue the following five types of writs:
  • Habeas Corpus- meaning 'to have a body'
  • Certiorari- meaning 'to be certified' or to be informed'
  • Prohibition- meaning 'to forbid'
  • Mandamus-  meaning 'to command'
  • Quo Warranto- meaning 'by what authority or warrant'

Articles 12 to 35 in Part III of Indian Constitution provide for six Fundamental Rights of India. Six fundamental rights are mentioned below:

• Right to Equality (Articles 14–18)
• Right to Freedom (Articles 19–22)
• Right against Exploitation (Articles 23–24)
• Right to Freedom of Religion (Articles 25–28)
• Cultural and Educational Rights (Articles 29–30)
• Right to Constitutional Remedies (Article 32)

Originally, the Constitution provided for seven Fundamental Rights, including the six rights mentioned above and the Right to Property. However, the 44th Amendment Act, of 1978 removed the Right to Property from the list of Fundamental Rights. It was, instead, made a legal right under Article 300-A in Part XII of the Constitution. So at present, there are only six Fundamental Rights.

• Article 31A: It saves five categories of laws from being challenged and invalidated on the ground of contravention of the fundamental rights conferred by Article 14 and Article 19.
  • It includes:
    • Acquisition of estates and related rights by the State;
    • Taking over the management of properties by the State;
    • Amalgamation of corporations;
    • Extinguishment or modification of rights of directors or shareholders of corporations
    • Extinguishment or modification of mining leases.
  • It also provides the guaranteed right to compensation in case of acquisition or requisition of the private property by the state.

• Article 31B: It protects the acts and regulations included in the Ninth Schedule from being challenged and invalidated on the ground of contravention of any of the fundamental rights.
  • The scope of Article 31B is wider than Article 31A as it immunises any law included in the Ninth Schedule from the Fundamental Rights (unlike article 31A that protects only five categories).
  • However, the Supreme Court in its judgement in the I.R. Coelho case (2007) ruled that even laws under the Ninth Schedule would be open to scrutiny if they violated Fundamental Rights or the basic structure of the Constitution.
    • The Supreme Court first propounded the doctrine of ‘basic structure’ of the constitution in the Kesavananda Bharati on April 24, 1973.

Mandamus

• The literal meaning of this term is – ‘we command’.
• It is a command issued by the court to a public official, asking him to perform his official duties that he has failed or refused to perform.
• It can be issued to a public official, a public body, a corporation, an inferior court, a tribunal, or the government for the same purpose.
• This writ cannot be issued:
  • against a private individual or body,
  • to enforce departmental instruction that does not possess statutory force,
  • when the duty is discretionary in nature,
  • to enforce a contractual obligation,
  • against the President of India, the State Governors, and the Chief Justice of a High Court.

Mandamus

• The literal meaning of this term is – ‘we command’.
• It is a command issued by the court to a public official, asking him to perform his official duties that he has failed or refused to perform.
• It can be issued to a public official, a public body, a corporation, an inferior court, a tribunal, or the government for the same purpose.
• This writ cannot be issued:
  • against a private individual or body,
  • to enforce departmental instruction that does not possess statutory force,
  • when the duty is discretionary in nature,
  • to enforce a contractual obligation,
  • against the President of India, the State Governors, and the Chief Justice of a High Court.

Prohibition

• The literal meaning of this term is – ‘to forbid’.
• It is issued by a higher court to a lower court or tribunal to prevent the latter from exceeding its jurisdiction or usurping a jurisdiction that it does not possess.
• Thus, while the writ of ‘Mandamus’ directs activity, the writ of ‘Prohibition’ directs inactivity.
• The writ of prohibition can be issued only against judicial and quasi-judicial bodies and cannot be issued against administrative authorities, legislative bodies, or private entities.

Constitutional Remedies refer to the legal mechanisms provided by the constitution of a country to safeguard and enforce the fundamental rights of individuals. These remedies empower citizens to seek relief from the judiciary when their constitutional rights are violated by the state or any other entity.

• Its significance made Dr. B.R. Ambedkar hail this right as the “heart and soul” of the Constitution.
• In India, the Supreme Court, the High Courts or any other courts empowered for the purpose can issue the following five types of writs:
  • Habeas Corpus- meaning 'to have a body'
  • Certiorari- meaning 'to be certified' or to be informed'
  • Prohibition- meaning 'to forbid'
  • Mandamus-  meaning 'to command'
  • Quo Warranto- meaning 'by what authority or warrant'

1.  Habeas Corpus
2. Mandamus
3.  Prohibition
4. Certiorari
5.  Quo-Warranto