Right to constitutional remedies

The right to constitutional remedies is a fundamental provision in many constitutions, including India’s, which allows citizens to seek judicial redress when their fundamental rights are violated. Essentially, it’s the safety net that ensures all the other fundamental rights are meaningful. Without a method to enforce these rights, they would merely be symbolic.

In the context of India, this is enshrined under Article 32 of the Constitution. This provision empowers the Supreme Court to issue various writs — habeas corpus, mandamus, prohibition, quo warranto, and certiorari — to safeguard the citizens against the arbitrary actions of the state or other entities. Article 226 gives High Courts similar powers but with a broader scope.

The right to constitutional remedies is often hailed as the “heart and soul” of the Indian Constitution, a phrase coined by Dr. B.R. Ambedkar. It essentially ensures the accountability of the government and acts as a check against possible misuse of power.  The filing of writ petitions is a critical part of safeguarding citizens’ rights, but it’s not limited to just citizens. 

Habeas Corpus: This Latin term means “you shall have the body.” If someone is detained unlawfully, a writ of habeas corpus can be filed. It compels the authority detaining the person to present them before a court and justify the detention. It’s a critical tool to protect individual freedom against arbitrary detention.

Any person can file this writ on behalf of someone else who is detained. You don’t necessarily have to be related to the detained individual. Even a complete stranger can file this writ.

The habeas corpus writ gained significant attention during the Emergency era (1975-77) in India. During this time, the government arrested and detained several political activists. The writ served as a legal recourse for many, though its efficacy was limited due to the suspension of civil liberties during that period.

The Habeas Corpus writ was widely invoked during the Kashmir lockdown in 2019. Many families filed petitions to know the whereabouts of detained family members, mostly young men and political leaders.

Mandamus: This term comes from Latin as well, meaning “we command.” The writ of mandamus is used to direct a public authority to perform a public duty that it’s legally obliged to do but has failed or refused to do so. It doesn’t apply to discretionary powers or to private individuals or organisations.  

The petitioner must have a specific legal right that’s been violated for this writ to be applicable. However, in public interest cases, a public-spirited citizen can file for mandamus.

In 2016, the Supreme Court issued a mandamus directing all cinema halls to play the national anthem before the start of a movie. The directive was aimed at “instilling a sense of committed patriotism and nationalism.”

Details of the Supreme Court Order

IN THE SUPREME COURT OF INDIA

                                    CIVIL ORIGINAL JURISDICTION

                                WRIT PETITION (CIVIL) NO.855 OF 2016

     SHYAM NARAYAN CHOUKSEY                                      … Petitioner(s)

                                   Versus

     UNION OF INDIA & OTHERS                                     … Respondent(s)

                                            JUDGMENT

Dipak Misra, CJI.

The petitioner, a public spirited person, has approached this Court under Article 32 of the Constitution of India for issue of a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to take appropriate steps for inculcating in the public a proper sense for paying due respect to the National Anthem…

…The order passed on 30th November, 2016, is modified to the extent that playing of the National Anthem prior to the screening of feature films in cinema halls is not mandatory, but optional or directory.

………………………..CJI. [Dipak Misra] ……………………………..J. [A.M. Khanwilkar] ……………………………..J. [Dr. D.Y. Chandrachud] New Delhi January 09, 2018.

In the Vishaka vs State of Rajasthan case (1997), the Supreme Court issued a writ of mandamus to enforce sexual harassment laws at workplaces, leading to the formulation of the Vishaka Guidelines.

Prohibition: This writ is issued by a higher court to a lower court or a tribunal to prevent it from exceeding its jurisdiction or usurping a jurisdiction it doesn’t possess. In simple terms, it’s a way to say, “stop, you can’t handle this case.”  

Usually, a party to the case where the lower court is exceeding its jurisdiction can file for this writ. However, in matters of public interest, others may also file it.

In 2014, the Delhi High Court issued a writ of prohibition against the Telecom Regulatory Authority of India (TRAI), preventing it from taking any punitive action against a broadcasting company that had challenged some of TRAI’s regulations.

Quo Warranto: This writ essentially means “by what authority?” It’s used to challenge the legality of someone’s appointment to a public office. The individual must prove their entitlement to hold the office in question.

Any person who is part of the “public” that is being affected by the unlawful occupation of a public office can file this writ. It’s not restricted to just individuals directly impacted.

In a famous case in the 1960s, the High Court of Punjab and Haryana issued a quo warranto to question the appointment of a person as an Inspector in the police department. The appointment was found to be irregular, leading to the removal of the individual from the post.

A notable example would be a 2019 case in Manipur where the High Court removed the state’s forest minister, Th. Shyamkumar, through a quo warranto writ, questioning his qualifications to hold office.

Certiorari: This writ is primarily issued to quash the order of a lower court or administrative tribunal. The higher court directs the lower court to transmit the record of a case for review. This allows the higher court to scrutinise the case proceedings to determine if there have been any irregularities or illegalities. Unlike prohibition, which prevents a case from being heard, certiorari is applied after the verdict to correct a mistake.

Like prohibition, this is usually filed by the aggrieved party in the case, but in matters of great public importance, others may be able to file it as well.

Certiorari is a powerful tool for maintaining a system of checks and balances among different tiers of the judiciary. It ensures that lower courts and tribunals function within the boundaries of their authority and helps rectify miscarriages of justice.

The Supreme Court has often used this writ to transfer high-profile criminal cases from state courts to itself or to another state’s court to ensure a fair trial. One famous example is the Sohrabuddin Sheikh fake encounter case, which was transferred from Gujarat to Mumbai.