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Home > Know Your Rights > Right to Constitutional Remedies
FAQ's | Landmark Judgements | Legal Frameworks

FAQ's

Q1.  What is meant by the right to Constitutional remedies?

A1.  Right to Constitutional remedies is the most important fundamental right provided to the citizens of India by the Constitution. It is a right that entitles every citizen of India to directly approach the Supreme Court of India if any of his Fundamental Rights have been violated. For instance, in case of imprisonment, the citizen can ask the court to see if it is according to the provisions of the law of the country. If the court finds that it is not, the person will have to be freed.

 

Q2.  Why has this right been made part of the Fundamental Rights itself?

A2.  The right to seek remedy for violation of fundamental rights has itself been made a fundamental right by the Constitution of India to emphasize its importance. Fundamental rights are meaningless unless there is effective machinery for the enforcement of those rights. Right to Constitutional remedies gives the mechanism to seek remedy if any fundamental right is denied to any citizen. In the absence of this right all other rights are of no consequence since they could not be enforced. This right makes the other rights as justiciable. Hence, it was itself made a fundamental right.

 

Q3.  What is the role of Supreme Court in protecting fundamental rights?

A3.  Supreme Court of India is the highest court of law in India. It acts as the protector of our fundamental rights. Any citizen of India who has been denied any of his fundamental rights can directly approach the Supreme Court. The court can issue various kinds of writs. These writs are habeas corpus, mandamus, prohibition, quo warranto and certiorari.

 

Q4.  What are writs?

A4.  Writs are special orders issued by the Supreme Court or the High Courts in order to safeguard the fundamental rights of the citizens. Writs are either directional or prohibitory in nature. It means that writs either direct a person or organization to do something they are supposed to do, or prohibit a person or organization from doing things that they don’t have the right to do. There are five types of writs: habeas corpus, mandamus, prohibition, quo warranto and certiorari.

 

Q5.  What is meant by the writ of habeas corpus?

A5.  Habeas Corpusis a Latin term meaning 'You may have the body'. The writ is issued when a person illegally captures or detains someone else. The writ questions under what authority he is detaining the other person. The person being detained is also brought before the court. If the Court finds no legal justification for the detention, the person will be released. The writ can be issued against government agencies who have detained a person without having the authority to do so. For Example, If the police arrests a person without arrest warrant and keeps him in custody, then that person can approach the court for the writ of Habeas corpus.

 

Q6.  What is meant by the writ of Mandamus?

A6.  Mandamus is issued when a public officer fails to perform his duty. A private person can apply for this writ, especially if previous demands to perform the duty, or public authority orders, have been refused. This compels the public officer to perform his duty.

 

Q7.  What is meant by the writ of Quo warranto?

A7. Quo warranto, means 'by what authority'. This writ is issued to a person who is wrongfully appointed to a public office. This compels him to prove to the court his reasons for occupying that particular office. If the court finds that his appointment is not proper, then he will be ordered to resign.

 

Q8.  What is meant by the writs of Prohibition and Certiorari?

A8.  Prohibition and Certiorari are twin writs. Both are issued against the lower courts by the Supreme Court or High Courts. Prohibition is a writ issued to a lower court to prevent it from taking up cases over which it has no jurisdiction. Certiorari is used to quash the decisions of a lower court when it acts against its jurisdiction or against natural justice. So if a court of law gives a punishment or judgment that is not within it’s power, these writs are issued.

 

Q 9.  Can another person file a petition under Article 32 on behalf of another person whose fundamental rights have been denied to him, but he is not in a position to approach the court?

A9.  Under right to Constitutional remedies,it is only the person whose rights have been violated who can move the court for restoration of the rights. However, the Supreme Court of India has permitted the filing of public interest litigation (PILs). In this, public-spirited individuals are allowed to file cases to restore the constitutional rights of any group of people who for some reason (such as poverty or ignorance) are unable to approach the court directly for relief.

 

Q10.  Can the right to constitutional remedies be taken away by the Government?

A10.  The Right to Constitutional Remedies may be suspended by the Government under certain circumstances. These are Emergency due to war or external aggression, emergency due to internal disturbance and emergency due to breakdown of constitutional machinery in the States. The right can be taken away only up to the period during which the emergency is in force and not after it.

 
 
 
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