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CHAPTER 10 - Writs & More On Fundamental Rights

Right to Equality

Exceptions to Equality
1. The President of India and the Governor of States enjoy the following immunities (Article 361)
(i) The President or the Governor is not answerable to any court for the exercise and performance of the powers and duties of his office.
(ii) No criminal proceedings shall be instituted or continued against the President or the Governor in any court during his term of office.
(iii) No process for the arrest or imprisonment of the President or the Governor shall be issued from any court during his term of office.
(iv) No civil proceedings against the President or the Governor.

Mandal Commission

  • In 1979, the Morarji Desai Government appointed the Second6 Backward Classes Commission under the chairmanship of B P Mandal, a Member of Parliament, in terms of Article 340 of the Constitution.
  • Comission was to investigate the conditions of the socially and educationally backward classes and suggest measures for their advancement.
  • The commission recommended for reservation of 27% government jobs for the Other Backward Classes (OBCs) so that the total reservation for all ((SCs, STs and OBCs) amounts to 50%.
  • It was after ten years in 1990 that the V P Singh Government declared reservation of 27% government jobs for the OBCs. 
Abolition of Untouchability

Article 17 abolishes ‘untouchability’ and forbids its practice in any form. The enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law.
i. In 1976, the Untouchability (Offences ) Act, 1955 has been comprehensively amended and renamed as the Protection of Civil Rights Act, 1955
ii. The Supreme Court held that the right under Article 17 is available against private individuals and it is the constitutional obligation of the State to take necessary action to ensure that this right is not violated.

Right to Freedom

Article 19 guarantees to all citizens the six rights. These are:
(i) Right to freedom of speech and expression.
(ii) Right to assemble peaceably and without arms.
(iii) Right to form associations or unions or co-operative societies.
(iv) Right to move freely throughout the territory of India.
(v) Right to reside and settle in any part of the territory of India.
(vi) Right to practice any profession or to carry on any occupation, trade or business.

Protection of Life and Personal Liberty

Article 21 declares that no person shall be deprived of his life or personal liberty except according to procedure established by law. This right is available to both citizens and non-citizens.
Gopalan case (1950)

  • It held that the protection under Article 21 is available only against arbitrary executive action and not from arbitrary legislative action. This means that the State can deprive the right to life and personal liberty of a person based on a law.
  • Secondly, the Supreme Court held that the ‘personal liberty’ means only liberty relating to the person or body of the individual.
Menaka case(1978)

  • The Supreme Court overruled its judgement in the Gopalan case by taking a wider interpretation of the Article 21. Therefore, it ruled that the right to life and personal liberty of a person can be deprived by a law provided the procedure prescribed by that law is reasonable, fair and just.
  • It also ruled that the expression ‘Personal Liberty’ in Article 21 is of the widest amplitude and it covers a variety of rights that go to constitute the personal liberties of a man.
Right to Education

Article 21 A declares that the State shall provide free and compulsory education to all children of the age of six to fourteen years in such a manner as the State may determine.

  • This provision was added by the 86th Constitutional Amendment Act of 2002. This amendment is a major milestone in the country’s aim to achieve ‘Education for All’. The government described this step as ‘the dawn of the second revolution in the chapter of citizens’ rights’.
  • Even before this amendment, the Constitution contained a provision for free and compulsory education for children under Article 45 in Part IV. However, being a directive principle, it was not enforceable by the courts.
86th amendment changed the subject matter of :-
Article 45 (Directive Principle) - "The state shall endeavour to provide early childhood care and education for all children until they complete the age of six years"
Article 51A (Fundamental Duty) - "It shall be the duty of every citizen of India to provide opportunities for education to his child or ward between the age of six and fourteen years"

  • In pursuance of Article 21A, the Parliament enacted the Right of Children to Free and Compulsory Education (RTE) Act, 2009.
Right to Constitutional Remedies

Article 32 confers the right to remedies for the enforcement of the fundamental rights of an aggrieved citizen.

  • Dr Ambedkar called Article 32 as "an Article without which this constitution would be a nullity. It is the very soul of the Constitution and the very heart of it"
  • The Supreme Court shall have power to issue directions or orders or writs for the enforcement of any of the fundamental rights. The writs issued may include habeas corpus, mandamus, prohibition, certiorari and quo-warranto.
  • The Supreme Court has been constituted as the defender and guarantor of the fundamenetal rights of the citizens.
  • Since the right guaranteed by Article 32 (ie, the right to move the Supreme Court where a fundamental right is infringed) is in itself a fundamental right, the Supreme Court has ruled that where relief through high court is available under Article 226, the aggrieved party should first move the high court.
Writs

The Supreme Court (under Article 32) and the high courts (under Article 226) can issue the writs of habeas corpus, mandamus, prohibition, certiorari and quo-warranto.
These writs are borrowed from English law where they are known as ‘prerogative writs’.

Habeas Corpus (‘to have the body of’)

  • It is an order issued by the court to a person who has detained another person, to produce the body of the latter before it. Thus, this writ is a bulwark of individual liberty against arbitrary detention.
  • The writ of habeas corpus can be issued against both public authorities as well as private individuals.

Mandamus (‘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 also be issued against any public body, a corporation, an inferior court, a tribunal or government for the same purpose.

Prohibition (‘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, unlike mandamus that directs activity, the prohibition directs inactivity.
  • The writ of prohibition can be issued only against judicial and quasi-judicial authorities. It is not available against administrative authorities, legislative bodies, and private individuals or bodies.

Certiorari (‘to be certified’ or ‘to be informed’)

  • It is issued by a higher court to a lower court or tribunal either to transfer a case pending with the latter to itself or to squash the order of the latter in a case.
  • It is issued on the grounds of excess of jurisdiction or lack of jurisdiction or error of law.
  • Like prohibition, certiorari is also not available against legislative bodies and private individuals or bodies.

Quo-Warranto (‘by what authority or warrant’)

  • It is issued by the court to enquire into the legality of claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person.
  • It cannot be issued in cases of ministerial office or private office.
  • Unlike the other four writs, this can be sought by any interested person and not necessarily by the aggrieved person.

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