jbp123/hello · Datasets at Hugging Face

instruction stringlengths 1 84	input stringlengths 1 85	output stringlengths 1 83
by the State but established under any endowment or trust, requiring	imparting of religious instruction in such institution.	Further, no person attending any educational institution recognised
by the State or receiving aid out of State funds shall be required to	attend any religious instruction or worship in that institution without his	consent. In case of a minor, the consent of his guardian is needed.
Thus, Article 28 distinguishes between four types of educational	institutions:	(a) Institutions wholly maintained by the State.
(b) Institutions administered by the State but established under any	endowment or trust.	(c) Institutions recognised by the State.
(d) Institutions receiving aid from the State.	In (a), religious instruction is completely prohibited while in (b),	religious instruction is permitted. In (c) and (d), religious instruction is
CULTURAL AND EDUCATIONAL RIGHTS	1. Protection of Interests of Minorities	Article 29 provides that any section of the citizens residing in any part
of India having a distinct language, script or culture of its own, shall	have the right to conserve the same. Further, no citizen shall be	denied admission into any educational institution maintained by the
State or receiving aid out of State funds on grounds only of religion,	race, caste, or language.	The first provision protects the right of a group while the second
provision guarantees the right of a citizen as an individual irrespective	of the community to which he belongs.	Article 29 grants protection to both religious minorities as well as
linguistic minorities. However, the Supreme Court held that the scope	of this article is not necessarily restricted to minorities only, as it is	commonly assumed to be. This is because of the use of words
‘section of citizens’ in the Article that include minorities as well as	majority.	The Supreme Court also held that the right to conserve the
language includes the right to agitate for the protection of the	language. Hence, the political speeches or promises made for the	conservation of the language of a section of the citizens does not
amount to corrupt practice under the Representation of the People	Act, 1951.	2. Right of Minorities to Establish and Administer
Educational Institutions	Article 30 grants the following rights to minorities, whether religious or	linguistic:
(a) All minorities shall have the right to establish and administer	educational institutions of their choice.	(b) The compensation amount fixed by the State for the compulsory
acquisition of any property of a minority educational institution	shall not restrict or abrogate the right guaranteed to them. This	provision was added by the 44th Amendment Act of 1978 to
(c) In granting aid, the State shall not discriminate against any	educational institution managed by a minority.	Thus, the protection under Article 30 is confined only to minorities
(religious or linguistic) and does not extend to any section of citizens	(as under Article 29). However, the term ‘minority’ has not been	defined anywhere in the Constitution.
The right under Article 30 also includes the right of a minority to	impart education to its children in its own language.	Minority educational institutions are of three types:
(a) institutions that seek recognition as well as aid from the State;	(b) institutions that seek only recognition from the State and not aid;	and
(c) institutions that neither seek recognition nor aid from the State.	The institutions of first and second type are subject to the	regulatory power of the state with regard to syllabus prescription,
academic standards, discipline, sanitation, employment of teaching	staff and so on. The institutions of third type are free to administer	their affairs but subject to operation of general laws like contract law,
labour law, industrial law, tax law, economic regulations, and so on.	In a judgement delivered in the Secretary of Malankara Syrian	Catholic College case14a (2007), the Supreme Court has summarized
the general principles relating to establishment and administration of	minority educational institutions in the following way :	1. The right of minorities to establish and administer educational
institutions of their choice comprises the following rights :	(i) To choose its governing body in whom the founders of	institution have faith and confidence to conduct and manage
affairs of the institution;	(ii) To appoint teaching staff (teachers/ lecturers and he	masters/princi-pals) as also non-teaching staff; and to take ac
if there is dereliction of duty on the part of any of its employees	(iii) To admit eligible students of their choice and to set u	reasonable fee structure; and
(iv) To use its properties and assets for the benefit of the institution	2. The right conferred on minorities under Article 30 is only to	ensure equality with the majority and not intended to place the
minorities in a more advantageous position vis-a-vis the majority.	There is no reverse discrimination in favour of minorities. The	general laws of the land relating to national interest, national
taxation etc., applicable to all, will equally apply to minority	institutions also.	3. The right to establish and administer educational institutions is
not absolute. Nor does it include the right to maladminister.	There can be regulatory measures for ensuring educational	character and standards and maintaining academic excellence.
There can be checks on administration as are necessary to	ensure that the administration is efficient and sound, so as to	serve the academic needs of the institution. Regulations made
by the State concerning generally the welfare of students and	teachers, regulations laying down eligibility criteria and	qualifications for appointment, as also conditions of service of
employees (both teaching and non-teaching), regulations to	prevent exploitation or oppression of employees, and regulations	prescribing syllabus and curriculum of study fall under this
category. Such regulations do not in any manner interfere with	the right under Article 30(1).	4. Subject to the eligibility conditions/ qualifications prescribed by
the State being met, the unaided minority educational institutions	will have the freedom to appoint teachers/lecturers by adopting	any rational procedure of selection.
5. Extention of aid by the State, does not alter the nature and	character of the minority educational institutions. The conditions	can be imposed by the State to ensure proper utilization of the
RIGHT TO CONSTITUTIONAL REMEDIES	A mere declaration of fundamental rights in the Constitution is	meaningless, useless and worthless without providing an effective
machinery for their enforcement, if and when they are violated. Hence,	Article 32 confers the right to remedies for the enforcement of the	fundamental rights of an aggrieved citizen. In other words, the right to
get the Fundamental Rights protected is in itself a fundamental right.	This makes the fundamental rights real. That is why Dr. Ambedkar	called Article 32 as the most important article of the Constitution–‘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	has ruled that Article 32 is a basic feature of the Constitution. Hence, it
cannot be abridged or taken away even by way of an amendment to	the Constitution. It contains the following four provisions:	(a) The right to move the Supreme Court by appropriate
proceedings for the enforcement of the Fundamental Rights is	guaranteed.	(b) 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.
(c) Parliament can empower any other court to issue directions,	orders and writs of all kinds. However, this can be done without	prejudice to the above powers conferred on the Supreme Court.
Any other court here does not include high courts because Article	226 has already conferred these powers on the high courts.	(d) The right to move the Supreme Court shall not be suspended
except as otherwise provided for by the Constitution. Thus the	Constitution provides that the President can suspend the right to	move any court for the enforcement of the fundamental rights
during a national emergency (Article 359).	It is thus clear that the Supreme Court has been constituted as the	defender and guarantor of the fundamental rights of the citizens. It has
been vested with the ‘original’ and ‘wide’ powers for that purpose.	Original, because an aggrieved citizen can directly go to the Supreme	Court, not necessarily by way of appeal. Wide, because its power is
The purpose of Article 32 is to provide a guaranteed, effective,	expeditious, inexpensive and summary remedy for the protection of	the fundamental rights. Only the Fundamental Rights guaranteed by
the Constitution can be enforced under Article 32 and not any other	right like non-fundamental constitutional rights, statutory rights,	customary rights and so on. The violation of a fundamental right is the
sine qua non for the exercise of the right conferred by Article 32. In	other words, the Supreme Court, under Article 32, cannot determine a	question that does not involve Fundamental Rights. Article 32 cannot
be invoked simply to determine the constitutionality of an executive	order or a legislation unless it directly infringes any of the fundamental	rights.
In case of the enforcement of Fundamental Rights, the jurisdiction	of the Supreme Court is original but not exclusive. It is concurrent with	the jurisdiction of the high court under Article 226. It vests original
powers in the high court to issue directions, orders and writs of all	kinds for the enforcement of the Fundamental Rights. It means when	the Fundamental Rights of a citizen are violated, the aggrieved party
has the option of moving either the high court or the Supreme Court	directly.	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 availability of alternate remedy is no bar to relief	under Article 32. However, the Supreme Court has ruled that where
WRITS–TYPES AND SCOPE	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. Further, the Parliament (under	Article 32) can empower any other court to issue these writs. Since no	such provision has been made so far, only the Supreme Court and the
high courts can issue the writs and not any other court. Before 1950,	only the High Courts of Calcutta, Bombay and Madras had the power	to issue the writs. Article 226 now empowers all the high courts to
issue the writs.	These writs are borrowed from English law where they are known	as ‘prerogative writs’. They are so called in England as they were
issued in the exercise of the prerogative of the King who was, and is	still, described as the ‘fountain of justice’. Later, the high court started	issuing these writs as extraordinary remedies to uphold the rights and
liberties of the British people.	The writ jurisdiction of the Supreme Court differs from that of a high	court in three respects:
1. The Supreme Court can issue writs only for the enforcement of	fundamental rights whereas a high court can issue writs not only	for the enforcement of Fundamental Rights but also for any other
purpose. The expression ‘for any other purpose’ refers to the	enforcement of an ordinary legal right. Thus, the writ jurisdiction	of the Supreme Court, in this respect, is narrower than that of
high court.	2. The Supreme Court can issue writs against a person or	government throughout the territory of India whereas a high
court can issue writs against a person residing or against a	government or authority located within its territorial jurisdiction	only or outside its territorial jurisdiction only if the cause of action
arises within its territorial jurisdiction.15 Thus, the territorial	jurisdiction of the Supreme Court for the purpose of issuing writs	is wider than that of a high court.
3. A remedy under Article 32 is in itself a Fundamental Right and	hence, the Supreme Court may not refuse to exercise its writ	jurisdiction. On the other hand, a remedy under Article 226 is
Supreme Court as Article 226 does on a high court to issue writs	for the enforcement of fundamental rights or other rights as part	of its general jurisdiction. The Supreme Court is thus constituted
as a defender and guarantor of the fundamental rights.	Now, we will proceed to understand the meaning and scope of	different kinds of writs mentioned in Articles 32 and 226 of the
Constitution:	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.	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.	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.
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.	Previously, the writ of certiorari could be issued only against judicial	and quasi-judicial authorities and not against administrative
authorities. 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.	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.
ARMED FORCES AND FUNDAMENTAL RIGHTS	Article 33 empowers the Parliament to restrict or abrogate the	fundamental rights of the members of armed forces, para-military
forces, police forces, intelligence agencies and analogous forces. The	objective of this provision is to ensure the proper discharge of their	duties and the maintenance of discipline among them.
The power to make laws under Article 33 is conferred only on	Parliament and not on state legislatures. Any such law made by	Parliament cannot be challenged in any court on the ground of
contravention of any of the fundamental rights.	Accordingly, the Parliament has enacted the Army Act (1950), the	Navy Act (1950), the Air Force Act (1950), the Police Forces
(Restriction of Rights) Act, 1966, the Border Security Force Act and so	on. These impose restrictions on their freedom of speech, right to form	associations, right to be members of trade unions or political
associations, right to communicate with the press, right to attend	public meetings or demonstrations, etc.	Table 7.3 Martial Law Vs National Emergency
Martial Law National Emergency	1. It affects only Fundamental 1. It affects not only	Rights. Fundamental Rights but also
Centre-state relations,	distribution of revenues and	legislative powers between
centre and states and may	extend the tenure of the	Parliament.
2. It suspends the government 2. It continues the government	and ordinary law courts. and ordinary law courts.	3. It is imposed to restore the 3. I t can be imposed only on

by the State but established under any endowment or trust, requiring

imparting of religious instruction in such institution.

Further, no person attending any educational institution recognised

by the State or receiving aid out of State funds shall be required to

attend any religious instruction or worship in that institution without his

consent. In case of a minor, the consent of his guardian is needed.

Thus, Article 28 distinguishes between four types of educational

institutions:

(a) Institutions wholly maintained by the State.

(b) Institutions administered by the State but established under any

endowment or trust.

(c) Institutions recognised by the State.

(d) Institutions receiving aid from the State.

In (a), religious instruction is completely prohibited while in (b),

religious instruction is permitted. In (c) and (d), religious instruction is

CULTURAL AND EDUCATIONAL RIGHTS

1. Protection of Interests of Minorities

Article 29 provides that any section of the citizens residing in any part

of India having a distinct language, script or culture of its own, shall

have the right to conserve the same. Further, no citizen shall be

denied admission into any educational institution maintained by the

State or receiving aid out of State funds on grounds only of religion,

race, caste, or language.

The first provision protects the right of a group while the second

provision guarantees the right of a citizen as an individual irrespective

of the community to which he belongs.

Article 29 grants protection to both religious minorities as well as

linguistic minorities. However, the Supreme Court held that the scope

of this article is not necessarily restricted to minorities only, as it is

commonly assumed to be. This is because of the use of words

‘section of citizens’ in the Article that include minorities as well as

majority.

The Supreme Court also held that the right to conserve the

language includes the right to agitate for the protection of the

language. Hence, the political speeches or promises made for the

conservation of the language of a section of the citizens does not

amount to corrupt practice under the Representation of the People

Act, 1951.

2. Right of Minorities to Establish and Administer

Educational Institutions

Article 30 grants the following rights to minorities, whether religious or

linguistic:

(a) All minorities shall have the right to establish and administer

educational institutions of their choice.

(b) The compensation amount fixed by the State for the compulsory

acquisition of any property of a minority educational institution

shall not restrict or abrogate the right guaranteed to them. This

provision was added by the 44th Amendment Act of 1978 to

(c) In granting aid, the State shall not discriminate against any

educational institution managed by a minority.

Thus, the protection under Article 30 is confined only to minorities

(religious or linguistic) and does not extend to any section of citizens

(as under Article 29). However, the term ‘minority’ has not been

defined anywhere in the Constitution.

The right under Article 30 also includes the right of a minority to

impart education to its children in its own language.

Minority educational institutions are of three types:

(a) institutions that seek recognition as well as aid from the State;

(b) institutions that seek only recognition from the State and not aid;

and

(c) institutions that neither seek recognition nor aid from the State.

The institutions of first and second type are subject to the

regulatory power of the state with regard to syllabus prescription,

academic standards, discipline, sanitation, employment of teaching

staff and so on. The institutions of third type are free to administer

their affairs but subject to operation of general laws like contract law,

labour law, industrial law, tax law, economic regulations, and so on.

In a judgement delivered in the Secretary of Malankara Syrian

Catholic College case14a (2007), the Supreme Court has summarized

the general principles relating to establishment and administration of

minority educational institutions in the following way :

1. The right of minorities to establish and administer educational

institutions of their choice comprises the following rights :

(i) To choose its governing body in whom the founders of

institution have faith and confidence to conduct and manage

affairs of the institution;

(ii) To appoint teaching staff (teachers/ lecturers and he

masters/princi-pals) as also non-teaching staff; and to take ac

if there is dereliction of duty on the part of any of its employees

(iii) To admit eligible students of their choice and to set u

reasonable fee structure; and

(iv) To use its properties and assets for the benefit of the institution

2. The right conferred on minorities under Article 30 is only to

ensure equality with the majority and not intended to place the

minorities in a more advantageous position vis-a-vis the majority.

There is no reverse discrimination in favour of minorities. The

general laws of the land relating to national interest, national

taxation etc., applicable to all, will equally apply to minority

institutions also.

3. The right to establish and administer educational institutions is

not absolute. Nor does it include the right to maladminister.

There can be regulatory measures for ensuring educational

character and standards and maintaining academic excellence.

There can be checks on administration as are necessary to

ensure that the administration is efficient and sound, so as to

serve the academic needs of the institution. Regulations made

by the State concerning generally the welfare of students and

teachers, regulations laying down eligibility criteria and

qualifications for appointment, as also conditions of service of

employees (both teaching and non-teaching), regulations to

prevent exploitation or oppression of employees, and regulations

prescribing syllabus and curriculum of study fall under this

category. Such regulations do not in any manner interfere with

the right under Article 30(1).

4. Subject to the eligibility conditions/ qualifications prescribed by

the State being met, the unaided minority educational institutions

will have the freedom to appoint teachers/lecturers by adopting

any rational procedure of selection.

5. Extention of aid by the State, does not alter the nature and

character of the minority educational institutions. The conditions

can be imposed by the State to ensure proper utilization of the

RIGHT TO CONSTITUTIONAL REMEDIES

A mere declaration of fundamental rights in the Constitution is

meaningless, useless and worthless without providing an effective

machinery for their enforcement, if and when they are violated. Hence,

Article 32 confers the right to remedies for the enforcement of the

fundamental rights of an aggrieved citizen. In other words, the right to

get the Fundamental Rights protected is in itself a fundamental right.

This makes the fundamental rights real. That is why Dr. Ambedkar

called Article 32 as the most important article of the Constitution–‘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

has ruled that Article 32 is a basic feature of the Constitution. Hence, it

cannot be abridged or taken away even by way of an amendment to

the Constitution. It contains the following four provisions:

(a) The right to move the Supreme Court by appropriate

proceedings for the enforcement of the Fundamental Rights is

guaranteed.

(b) 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.

(c) Parliament can empower any other court to issue directions,

orders and writs of all kinds. However, this can be done without

prejudice to the above powers conferred on the Supreme Court.

Any other court here does not include high courts because Article

226 has already conferred these powers on the high courts.

(d) The right to move the Supreme Court shall not be suspended

except as otherwise provided for by the Constitution. Thus the

Constitution provides that the President can suspend the right to

move any court for the enforcement of the fundamental rights

during a national emergency (Article 359).

It is thus clear that the Supreme Court has been constituted as the

defender and guarantor of the fundamental rights of the citizens. It has

been vested with the ‘original’ and ‘wide’ powers for that purpose.

Original, because an aggrieved citizen can directly go to the Supreme

Court, not necessarily by way of appeal. Wide, because its power is

The purpose of Article 32 is to provide a guaranteed, effective,

expeditious, inexpensive and summary remedy for the protection of

the fundamental rights. Only the Fundamental Rights guaranteed by

the Constitution can be enforced under Article 32 and not any other

right like non-fundamental constitutional rights, statutory rights,

customary rights and so on. The violation of a fundamental right is the

sine qua non for the exercise of the right conferred by Article 32. In

other words, the Supreme Court, under Article 32, cannot determine a

question that does not involve Fundamental Rights. Article 32 cannot

be invoked simply to determine the constitutionality of an executive

order or a legislation unless it directly infringes any of the fundamental

rights.

In case of the enforcement of Fundamental Rights, the jurisdiction

of the Supreme Court is original but not exclusive. It is concurrent with

the jurisdiction of the high court under Article 226. It vests original

powers in the high court to issue directions, orders and writs of all

kinds for the enforcement of the Fundamental Rights. It means when

the Fundamental Rights of a citizen are violated, the aggrieved party

has the option of moving either the high court or the Supreme Court

directly.

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 availability of alternate remedy is no bar to relief

under Article 32. However, the Supreme Court has ruled that where

WRITS–TYPES AND SCOPE

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. Further, the Parliament (under

Article 32) can empower any other court to issue these writs. Since no

such provision has been made so far, only the Supreme Court and the

high courts can issue the writs and not any other court. Before 1950,

only the High Courts of Calcutta, Bombay and Madras had the power

to issue the writs. Article 226 now empowers all the high courts to

issue the writs.

These writs are borrowed from English law where they are known

as ‘prerogative writs’. They are so called in England as they were

issued in the exercise of the prerogative of the King who was, and is

still, described as the ‘fountain of justice’. Later, the high court started

issuing these writs as extraordinary remedies to uphold the rights and

liberties of the British people.

The writ jurisdiction of the Supreme Court differs from that of a high

court in three respects:

1. The Supreme Court can issue writs only for the enforcement of

fundamental rights whereas a high court can issue writs not only

for the enforcement of Fundamental Rights but also for any other

purpose. The expression ‘for any other purpose’ refers to the

enforcement of an ordinary legal right. Thus, the writ jurisdiction

of the Supreme Court, in this respect, is narrower than that of

high court.

2. The Supreme Court can issue writs against a person or

government throughout the territory of India whereas a high

court can issue writs against a person residing or against a

government or authority located within its territorial jurisdiction

only or outside its territorial jurisdiction only if the cause of action

arises within its territorial jurisdiction.15 Thus, the territorial

jurisdiction of the Supreme Court for the purpose of issuing writs

is wider than that of a high court.

3. A remedy under Article 32 is in itself a Fundamental Right and

hence, the Supreme Court may not refuse to exercise its writ

jurisdiction. On the other hand, a remedy under Article 226 is

Supreme Court as Article 226 does on a high court to issue writs

for the enforcement of fundamental rights or other rights as part

of its general jurisdiction. The Supreme Court is thus constituted

as a defender and guarantor of the fundamental rights.

Now, we will proceed to understand the meaning and scope of

different kinds of writs mentioned in Articles 32 and 226 of the

Constitution:

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.

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.

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.

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.

Previously, the writ of certiorari could be issued only against judicial

and quasi-judicial authorities and not against administrative

authorities. 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.

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.

ARMED FORCES AND FUNDAMENTAL RIGHTS

Article 33 empowers the Parliament to restrict or abrogate the

fundamental rights of the members of armed forces, para-military

forces, police forces, intelligence agencies and analogous forces. The

objective of this provision is to ensure the proper discharge of their

duties and the maintenance of discipline among them.

The power to make laws under Article 33 is conferred only on

Parliament and not on state legislatures. Any such law made by

Parliament cannot be challenged in any court on the ground of

contravention of any of the fundamental rights.

Accordingly, the Parliament has enacted the Army Act (1950), the

Navy Act (1950), the Air Force Act (1950), the Police Forces

(Restriction of Rights) Act, 1966, the Border Security Force Act and so

on. These impose restrictions on their freedom of speech, right to form

associations, right to be members of trade unions or political

associations, right to communicate with the press, right to attend

public meetings or demonstrations, etc.

Table 7.3 Martial Law Vs National Emergency

Martial Law National Emergency

1. It affects only Fundamental 1. It affects not only

Rights. Fundamental Rights but also

Centre-state relations,

distribution of revenues and

legislative powers between

centre and states and may

extend the tenure of the

Parliament.

2. It suspends the government 2. It continues the government

and ordinary law courts. and ordinary law courts.

3. It is imposed to restore the 3. I t can be imposed only on