Right to property and Constitutional Remedies

Right to property — now omitted as a fundamental right

Article 31 of the Constitution which was a fundamental right to property is now a constitutional right to be regulated by ordinary law. Article 31(A) provides for the saving of laws which relate to acquisition of estates while Article 31 (B) validates the Acts and Regulations mentioned in Ninth Schedule to the Constitution. Article 31(C) saves these laws which give effect to certain directive principles while Article 31(D) has been repealed by the Forty-third Amendment Act 1977.

Right to constitutional remedies

Article 32 relates to the conferment of rights enshrined in Part III. “The right to move the Supreme Court is guaranteed by Article 32(1). “The Supreme Court, in turn, has the power to issue directions or orders or writs (Article 32(2)). “Theclause 3 of Article 32 empowers the Parliament to confer the enforcement of the rights under Part III to any other court within local limits. Article 32(4) ensures that the right to constitutional remedies would not be suspended except as provided by the Constitution.

“The types of writs are:

(i) Habeas Corpus: Literally (from Latin term) it means ‘to have the body of ’. “This writ may be issued against both public authorities and individuals for protecting their liberty (See Ummu Sabeena v State of Kerala, 2011). It is not issued where (a) the detention is lawful, (b) the proceedings are for contempt of a legislature or a court, (c) the detention is by a competent court, and (d) the detention is outside the jurisdiction of the court.

(ii) Mandamus: Literally it means ‘we command’. “This writ is issued (a) against a private individual or a 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 state governors).

(iii) Prohibition: Literally, it means ‘to forbid’. “This writ 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: Literally, it means “to be certified” or “ to be informed”. It is issued by a higher court to a lower court or a tribunal or to an administrative authority (since 1991), either to transfer a case pending with the latter itself or to quash the order of the latter in a case. It is used 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.

(v) Quo Warranto: It means ‘by what authority or warrant’. It is issued by the court to inquire into the legality of claim of a person to a public office. Hence, it prevents illegal usurpation of public office by a person. Mere infringement or its threat suffices the issue of the writs (Simranjit Singh v. Union of India—1973).

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