The framers of India's Constitution recognized certain fundamental and constitutional rights of citizens to build an equitable society leading to a welfare state. The six fundamental rights guaranteed under Part III of the Constitution of India are –

1. Right to Equality

2. Right to Freedom

3. Right against Exploitation

4. Right to Freedom of Religion

5. Cultural and Educational Rights

6. Right to Constitutional Remedies

On the other hand, Constitutional rights are supreme rights guaranteed by the Constitution of India that are not under Part III of the Constitution. These constitutional rights are not basic, and unlike fundamental rights, they do not apply to everyone. For example, the Right to Vote guaranteed under Article 326 of the Constitution shall not apply to citizens who have not attained 18 years.

The legal provisions mentioned under Article 32 and Article 226 stipulate the remedies available to an aggrieved person whose rights have been infringed. The Right to Constitutional Remedies under Article 32 of the Constitution ensures that the fundamental rights of Indian citizens do not remain paper-based. Thus, it allows the citizens to move to India's Supreme Court if their fundamental rights are violated. While Article 32 of the Constitution provides the Supreme Court of India the jurisdiction to entertain matters regarding enforcement and violation of fundamental rights protected under Part III of the Constitution, Article 226 of the Constitution of India allows the High Courts of India to have jurisdiction over matters of enforcement and violation of all rights including fundamental rights, constitutional rights, and other legal rights as well.

Remedies available to aggrieved citizens

The Constitution of India provides for 'writs' to enforce the citizens' rights under Article 32 and Article 226. A writ can be explained as an order of the Court directing the recipient of such order to do or refrain from doing a particular activity that violates the aggrieved citizen's rights. In simple terms, a writ is a formal written order issued by a judicial body. As mentioned earlier, the Supreme Court of India can only issue writs suitable for enforcing fundamental rights. In contrast, the High Courts of India can issue writs suitable for purposes other than the enforcement of fundamental rights. Under Article 226 of the Constitution of India, the High Courts have the power to issue the following five writs for enforcement of all rights, including fundamental rights and constitutional rights: 

1) Habeas Corpus

The writ of Habeas Corpus is issued by the Court to relieve a detainee from unlawful detention. In simple words, it is an order directing that a person who has been detained illegally and against his consent be brought before the Court to convey the grounds of his detention. An application for this writ can be filed by a family member, friend, or any other person interested in the detainee. If the Court is satisfied with the given application, the writ of Habeas Corpus is issued, and the detainer is ordered to provide a legally reasonable and justifiable ground for the detention. If illegal detention is proved, the Court orders a release of the detained person. However, a writ of Habeas Corpus cannot be invoked if the person is lawfully detained as a result of a sentence or order given in a judicial proceeding. Also, it cannot be issued during a period of emergency because citizens' rights are suspended during the emergency.

2) Mandamus

The writ of Mandamus comes from the Latin term meaning 'we command.' The Writ of Mandamus is an order of the Court which compels a lower court or a government body to perform a particular duty imposed upon it by the law. This writ can also compel a person to refrain from doing a particular act, which it is not legally entitled to do or contrary to the act that the law mandates him to do. Any person who has a legal right that gives him the locus standi to enforce a public duty for his private benefit can apply for a Writ of Mandamus. It must be noted that the writ of Mandamus cannot be issued against a private individual who is not legally required to perform the public duty. 

3) Certiorari

Certiorari means 'to certify.' This writ is issued in the form of an order by a superior court that squashes a lower court or tribunal decision if such a decision is not valid and legal. Through the writ of Certiorari, the applicant whose right has been infringed calls upon the Court to certify the legality of the inferior Court's order or other quasi-judicial body. The writ of Certiorari acts as a corrective remedy.

4) Prohibition

Also known as 'stay order,' the writ of prohibition is an order issued by a superior court directing the lower Court or a quasi-judicial body to refrain from continuing its proceedings if the inferior Court or quasi-judicial body does not have jurisdiction to hear the case or if the inferior Court or quasi-judicial body is not acting according to the provisions of the law. The writ of prohibition, though similar to the Writ of Certiorari, is different in nature. While the writ of Certiorari is corrective in nature, the writ of prohibition is preventive as this writ is issued while the judicial proceeding is still going on.

5) Quo Warranto

The Latin term Quo Warranto means 'by what authority.' It is a writ issued to determine whether a person has the legal right to the public office he holds and restrains a person from acting in an office when he is not entitled. However, it must be noted that the Court has complete discretion in issuing this writ and can refuse to grant it based on the matter's facts. In case of a writ of Quo Warranto, any person who has not been personally aggrieved can also apply.

The judiciary has been given vast powers under the Constitution of India. Every citizen must know their rights and the remedies available in case those rights are violated.

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Author: Jinal Vyas