Constitutional Remedies PDF

## 5.6 Constitutional Remedies for Citizens What do you mean by constitutional remedy? The Right to Constitutional Remedies gives citizens the right to approach the Supreme Court or the High Court to get any fundamental right restored in case they are violated. Thereafter the Supreme Court or High...

## 5.6 Constitutional Remedies for Citizens What do you mean by constitutional remedy? The Right to Constitutional Remedies gives citizens the right to approach the Supreme Court or the High Court to get any fundamental right restored in case they are violated. Thereafter the Supreme Court or High Court can issue an order or directives for the government regarding the enforcement of these rights. What are the five constitutional remedies? There are five types of Writs: *Habeas Corpus, Mandamus, Prohibition, Certiorari and Quo Warranto*. ### i) Habeas Corpus It is a Latin term which literally means *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. The court then examines the cause and legality of detention. It would set the detained person free, if the detention is found to be illegal. 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. The writ, on the other hand, is not issued where the * (a) detention is lawful, * (b) the proceeding is for contempt of a legislature or a court, * (c) detention is by a competent court, and * (d) detention is outside the jurisdiction of the court. ### ii) Mandamus It literally means *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. The writ of mandamus cannot be issued (a) against a private individual or body; (b) to enforce departmental instruction that does not possess statutory force; (c) when the duty is discretionary and not mandatory; (d) to enforce a contractual obligation; (e) against the president of India or the state governors; and (f) against the chief justice of a high court acting in judicial capacity. ### iii) Prohibition Literally, it means *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. ### iv) Certiorari In the literal sense, it means *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. Thus, unlike prohibition, which is only preventive, certiorari is both preventive as well as curative. Till recently, the writ of certiorari could be issued only against judicial and quasi-judicial authorities and not against administrative authorizes. However, in 1991, the Supreme Court ruled that the certiorari can be issued even against administrative authorities affecting rights of individuals. Like prohibition, certiorari is also not available against legislative bodies and private individuals or bodies. ### v) Quo-Warranto In the literal sense, it means *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. The writ can be issued only in case of a substantive public office of a permanent character created by a statute or by the Constitution. 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. ## UNIT III ### 3.1 Structure and Function of Central Government #### Indian Government * India is a largest country which is divided into a number of states. * The constitution of India provides for government in two levels: * The state government * The central (union) government Constitution separates the government into three branches: * The Executive branch that implements the law * The Legislative branch that makes the laws * The judicial branch that interprets, applies and administers the laws #### The Parliament of India The Parliament of India is the supreme legislative body in India. The Parliament comprises the President of India and the two Houses: * Lok Sabha (House of the People) * Rajya Sabha (Council of States). The Lok Sabha consists of members who are directly elected representatives of the people, while the Rajya Sabha is composed mainly of representatives of the states, Legislative Assemblies. * When the Constitution was framed, it was laid down that the Lok Sabha cannot consist of more than 500 members, the number being based on Population figures. * The strength of Lok Sabha was increased, with the rise in population of the country. * The present strength of the Lok Sabha is 545 members. * They include Anglo-Indian members nominated by the President to represent the community. ##### Duration of the Lok Sabha A five year term has been fixed for the *Lok Sabha*, unless it is dissolved earlier by the President on the advice of the Prime Minister. ##### Qualification for the Lok Sabha Members * To be a member of Lok Sabha, a person must be an Indian citizen, must be mentally sound and must have completed 25 years of age. * A candidate may stand for election from any part of the country. * No person can be a member of both houses of a Parliament or of the Parliament and the state legislature at the same time. * No member of Parliament can hold a office of profit under the state and central governments or local authority. ##### The Speaker of Lok Sabha * The presiding officer of the *Lok Sabha* is called as the speaker. * The *Lok Sabha* elects it's Speaker and it's deputy speaker from amongst it's members. * They are both removable by a resolution passed by a majority of the members. * The speaker is expected to be utterly impartial, regardless of his or her party affiliations in conducting the business of the house. * He or She enforces discipline, protects the rights and privileges of the member and also the dignity of the house. #### The Rajya Sabha The *Rajya Sabha* or Council of States is the upper house of the *Parliament* of India. Membership is limited to 50 members, 12 of whom are nominated by the President of India for their contributions to art, literature, science, and social services. ##### Representatives of the *Rajya Sabha* * The representatives of the states are elected by elected members of the State Legislative Assemblies. * Uttar Pradesh has the highest number of representatives, 31 States like Goa, Nagaland, Arunachal Pradesh have one representative. ##### Term of *Rajya Sabha* * The *Rajya Sabha* is a permanent house and is not subject to dissolution. * One-third of the members of *Rajya Sabha* retire after every two years in accordance with the provisions made by the *Parliament* by law. * Thus, the members of the *Rajya Sabha* are elected for a term of six years. * This arrangement ensures continuity as well as representation of the changing public opinion. ##### Advantages of *Rajya Sabha* over *Lok Sabha* * Politically, it remains more stable than the *Lok Sabha*. * After every election is a new house. * A periodic influx of fresh talent occurs. ##### Qualifications of *Rajya Sabha* members A person seeking membership of *Rajya Sabha* must possess the following qualifications: * He must be a citizen of India. * He must not be less than 30 years of age. * He must be Parliamentary elector in the state from which he is seeking election. * He must make and subscribe before some person authorized in that behalf by the Election Commission an oath or affirmation asserting his allegiance to the constitution of India. * He must possess such other qualifications as may be prescribed by the *Parliament* for that purpose from time to time. ##### Powers of the *Rajya Sabha* * The legislative powers of the *Rajya Sabha* are coordinated with the *Lok Sabha*, except financial bills. * Other bills can be introduced in either house but need to be passed by both houses. * But the *Lok Sabha* is more powerful than the *Rajya Sabha* because it is the popularly elected house.