Article 32: The right to move the Supreme Court in case of the violation of Fundamental Rights (called Soul and heart of the Constitution by Dr. B.R. Ambedkar).
To enforce the Fundamental Rights, the Supreme Court is empowered, under Article 32, to issue writs of various forms.
- Habeas Corpus
- Literally means ‘to have the body’. It implies that a person imprisoned or detained by the law can enquire under what authority he has been imprisoned or detained. The Court issues the writ against the authority concerned if the executive arrests someone without the authority of law or in contravention of procedure established by law.
- The writ is not issued if either the person arrested or the person against whom the writ is issued is outside the jurisdiction of the court; if the person concerned has been imprisoned by a Court on a criminal charge; if the person concerned is involved in proceedings for contempt by a Court of record or by Parliament.
- Literally means a ‘command’ issued by the court commanding a person or a public authority to do or forebear to do something in the nature of public duty. The writ of mandamus can be issued by the Court to enforce Fundamental Rights; whenever a public officer or a Government has committed an act violating a person’s Fundamental Rights, the Court can restrain that authority from enforcing such orders or committing such an act.
- The writ is issued against a private individual or organization unless the State is in collusion with such a party in contravening a Constitutional provision or statute.
- Quo warranto
- An order issued by the Court to prevent a person from holding office to which he is not entitled and to oust him from that office.
- For the writ of quo warranto to be issued, the office must be public, created by statue or by the Constitution, the office must be a substantive one, and there should have been a contravention of the Constitution or a statute in appointing the person to that office.
- The writ of prohibition is issued by the Supreme Court or a High Court to an inferior Court forbidding the latter to continue proceedings in a case in excess of its jurisdiction with which it is not legally vested.
- The writ is not available against a public officer not vested with judicial or quasi-judicial functions. The Supreme Court can issue the writ only where a Fundamental Right is affected.
- The writ of certiorari is issued to a lower Court after a case has been decided by it, quashing the decision or order. The objective is to secure that the jurisdiction of an inferior Court or tribunal is properly exercised and that it does not usurp the jurisdiction which it does not possess.
- A tribunal is considered to have acted without jurisdiction if the Court is not properly constituted, where people not qualified to sit on it have pronounced judgment, where the decision has been obtained by fraud, collusion or corruption, or where the subject matter of enquiry is beyond th scope of the tribunal. Even if the Court acts within its jurisdiction, where an ‘error of law’ has been committed, a writ of certiorari can quash the decision.
- In short, while prohibition is available during the pendency of the proceedings and before the order is made, certiorari can be issued only after the order has been made, under similar circumstances.