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FUNDAMENTAL RIGHTS AND WRITS

1. Fundamental Right

Fundamental Rights are those that are provided to every citizen of India irrespective of one’s caste, creed, and color. These rights play an important role in enabling their lives in harmony and peace.

1.1 Genesis

The evolution of constitutionally guaranteed fundamental rights has a number of historical roots, which includes the England Bill of Rights (1689), the United States Bill of Rights (ratified on December 15, 1791), and the France Declaration of the Rights of Man (ratified in the year 1789). The Rowlatt Act, 1919, granted the British government extensive authority, permitted the indefinite detention of individuals, and placed restrictions on public gatherings. The constituent assembly of India, led by Sir Rajendra Prasad, took on the mission of creating the constitution when India gained independence on August 15, 1947, and these rights, crafted by the Drafting Committee, were featured in the First Draft Constitution in February 1948, the Second Draft Constitution in October 1948, and the Third and Last Draft Constitution on November 26, 1949.

There exist six fundamental rights that are guaranteed by the constitution, enshrined in Part III from articles 12-35, and infringement of these rights results in penalties as stated in the Indian Penal Code (IPC). They are

  1. Right to equality (Ar. 14-18)

  2. Right to freedom (Ar. 19-22)

  3. Right against exploitation (Ar. 23-24)

  4. Right to freedom of religion (Ar. 25-28)

  5. Cultural and educational rights (Ar. 29-30)

  6. Right to constitutional remedies (Ar. 32)

When the Constitution of India came into force, it consisted of seven fundamental rights. However, the right to property was removed as a fundamental right through the 44th Constitutional Amendment, 1978, and a new provision, Article 300-A, was appended to the constitution, which states that "no person shall be deprived of his property save by authority of law." Similarly, Article 21-A, which stipulates free and compulsory education for all children between the ages of six and fourteen as a fundamental right, was annexed to the Indian Constitution by the Eighty-sixth Amendment Act, 2002. On April 1st, 2010, the RTE Act of 2009 and Article 21-A came into operation. Fundamental rights were also used to eradicate untouchability and also prohibited forced labor.

In the case Keshavananda Bharati v. State of Kerala (1973), it has been held that fundamental rights can be amended but such amendment must not alter or violate the basic doctrine of constitution.


1.2 Restriction on Fundamental Rights

Fundamental rights are meant for the overall development of Indian citizens. In this context, the following restrictions have been imposed by the Constitution on the Fundamental Rights:

  1. Under Clause (2) to Clause (5) of Article 19, the state can impose reasonable restrictions on the enjoyment of six fundamental freedoms in the interests of public order, morality, friendly relations with foreign states, public health etc.

  2. Under Article 352, the President of India can declare national emergency during which period he can suspend all the fundamental rights except Article 20 and 21.

  3. The Parliament can impose some restraints on Clause (4), (5), (6) and (7) of Article 22. Accordingly, several laws in this connection were enacted by the Parliament such as Preventive Detention Act, 1950, Maintenance of Internal Security Act (MISA) 1971, National Security Act 1980 (NSA), Prevention of Black Marketing, Maintenance of Essential Commodities Act 1980, Terrorist Armed Disruption Act (TADA), 1985 etc.

2. Writ

2.1 History of Writ:

A special innovation of Anglo-Saxon monarchy, the writ was a brief administrative edict that was authenticated in an original way by a seal. They typically granted land or gave directives to a local court in writing and were written in the colloquial. Writs were historically the legal actions taken by the King's Chancellor in response to a landowner whose vassal had appealed to the King about an injustice after a first summons by the sheriff to obey had been judged ineffective.

William, the Conqueror took over the system unmodified, but he had to expand it in two ways:

Firstly, writs started to be written more in Latin than in Anglo-Saxon, and they began to encompass a wider range of royal orders and judgments


2.1.1 Meaning of Writ

The term ‘writ’ refers to a formal, legal document that orders a person or entity to perform or to cease performing a specific action or deed.


2.2 Enforceability of Writ under Indian Law

Dr. B.R. Ambedkar described Right to Constitutional Remedies as ‘heart and soul of Indian constitution.’ This right works on the doctrine “Ubi Jus Ibi Remedium”, which means where there is a right there is a remedy.” This right gives citizens the right to approach the High Court under Article 226 and the Supreme Court under Article 32 to get any of the fundamental rights restored in case of their violation. Under the Indian legal system, jurisdiction to issue prerogative rights is given to the Supreme Court and to the High Courts of all Indian states.

Under Article 32, the Parliament can also entrust any other court to exercise the power of the Supreme Court. Unless there is some constitutional amendment, the rights guaranteed by this Article cannot be suspended.

In India, the principle of res judicata is being followed, which means that a second case cannot be filed for the same cause of action.

A citizen has the right to approach either the Supreme Court or the High Court for the issuance of writs, but if he chooses to approach either of the Courts and his suit is dismissed by the court, the citizen cannot file the same suit in the other Court. However, if someone files a case in the High Court and the High Court rejects it, that person has the option of appealing the ruling to the Supreme Court.


2.3 Nature of Writ Jurisdiction

The nature of writ jurisdiction provided by Article 32 is discretionary. There are five important factors to consider when exercising this discretion, which are:

✔ Locus Standi

✔ Alternative Relief

✔ Res Judicata

✔ Questions of the Fact

✔ Laches


2.4 Types of Writs

A writ is any direct order that has been issued with power behind it. Prominent sorts of writs include


2.4.1 Warrants

A warrant, also called a search warrant, is an edict from a judge or magistrate authorizing a sheriff, constable, or police officer to search someone or something. Other warrants may be used to execute someone who has been given a death sentence by a trial court as well as to apprehend someone or more people.


2.4.2 Subpoenas

A subpoena is a writ that enjoins a witness to testify or enjoins a person or business to provide evidence. Certain writs were abolished because a lawsuit or a petition can now get the relief that was previously only attainable through a writ.


2.4.3 Prerogative Writ

A writ that controls the actions of another branch of the government, such as an agency, official, or other court, is referred historically as “prerogative writ." It originally applied only to the Crown under English law and depicted the monarch's extraordinary power and discretionary prerogative. The traditional six-part writs are frequently referred to as "extraordinary writs" and "extraordinary remedies.” The Constitution of India broadly provides for five kinds of prerogative writs. They are


2.4.3.1 Habeas Corpus

William Blackstone in eighteenth century referred to the Latin phrase habeas corpus, which means "to have the body," as a "great and efficacious writ in all manner of illegal confinement."It is directed to the custodian and orders that a prisoner be brought before the court and that the custodian provide concrete evidence of authority, allowing the court to determine whether the custodian has legal authority to detain the prisoner. If the custodian exceeds their authority, the inmate must be released. A petition for a writ of habeas corpus may be filed in the court by any prisoner or another person acting on their behalf. The possibility of the detainee being held incommunicado is one justification for the writ to be requested by someone other than the prisoner. The traditional doctrine of locus standi has been abolished by the Indian judiciary, allowing any individual to file a petition on behalf of a detained person if that person is unable to do so.

In the case of Sunil Batra v. Delhi Administration and Ors., the supreme court enlarged the scope of habeas corpus, making available the fundamental rights of the prisoners.


▪ Compensation

A writ court typically won't grant compensation while acting in accordance with Article 32 or Article 226 of the Constitution. While in some circumstances the court may grant monetary compensation to the individual who was wrongfully detained.

In the case of Rudul Sah v. State of Bihar, it was held that When a court issues an order for the release of a person from an illegal detention pursuant to Article 32 or Article 226 and the detaining authority asserts that the person has also been released but no evidence of such release can be found and the detained person cannot be located, the court may order the detaining authority to pay compensation


2.4.3.2 Mandamus

The Latin phrase ‘Mandamus’ translates as “we command.”

It is a legal remedy that takes the form of a court's order to any government, inferior court, or public authority, directing them to perform or refrain from performing a particular act that they are required by law to perform or refrain from performing and that is in the nature of a public duty and, in some cases, one of a statutory duty. It cannot be used to force an authority to act in contravention of a law.


Justification of Mandamus

✔ A right does not always constitute justification for issuing the Writs. The Writ can therefore only be issued by the court when a petitioner's right has been violated.

✔ The Writ is issued to compel the authority to perform the act imposed by law or by the position they hold.

✔ The authority has a number of responsibilities, some of which must be carried out regardless of how they are chosen to be performed. As a result, the Court will issue a Writ of Mandamus if an authority fails to fulfill a required duty. However, the writ cannot be issued in cases involving discretionary duties.

In the case of Barada Kanta v. State of West Bengal, it was held that mandamus does not lie against a private individual or organization because they are not entrusted with a public duty.

In the case of Vijaya Mehta v. State of Rajasthan, a High Court petition was filed to order the State to fulfill its obligation of establishing a commission to investigate climate change and floods in the State. The Writ of Mandamus was not issued in this case because the court determined that the State Government would only be required to create a commission after a resolution was approved by the Legislature and that it was a voluntary rather than a mandatory obligation.

In the case of Bhopal Sugar Industries Ltd. v. Income Tax Officer, the Supreme Court ruled that the Income Tax officer had a legal obligation to follow the Tribunal's instructions. In order to instruct the