Writ Petitions under Articles 32 and 226 The Writ Jurisdiction of Supreme Court can be invoked under Article

32 of the Constitution for the violation of fundamental rights guaranteed under Part III of the Constitution. Any provision in any Constitution for Fundamental Rightsis meaningless unless there are adequate safeguards to ensure enforcement of such provisions. Since the reality of such rights is tested only through the judiciary, the safeguards assume even more importance. In addition, enforcement also depends upon the degree of independence of the Judiciary and the availability of relevant instruments with theexecutive authority. Indian Constitution, like most of Western Constitutions, lays down certain provisions to ensure the enforcement of Fundamental Rights. These are as under:

(a) The Fundamental Rights provided in the Indian Constitution are guaranteed against any executive and legislative actions. Any executive or legislative action, which infringes upon the Fundamental Rights of any person or any group of persons, can be declared as void by the Courts under Article 13 of the Constitution.

(b) In addition, the Judiciary has the power to issue the prerogative writs. These are the extra-ordinary remedies provided to the citizens to get their rights enforced against any authority in the State. These writs are - Habeas corpus, Mandamus, Prohibition, Certiorariand Quo-warranto. Both, High Courts as well as the Supreme Court may issue the writs. (c) The Fundamental Rights provided to the citizens by the Constitution cannot be suspended by the State, except during the period of emergency, as laid down in Article 359 of the Constitution. A Fundamental Right may also be enforced by way of normal legal procedures including a declaratory suit or by way of defence to legal proceedings. However, Article 32 is referred to as the "Constitutional Remedy" for enforcement of Fundamental Rights. This provision itself has been included in the Fundamental Rights and hence it cannot be denied to any person. Dr. B.R.Ambedkar described Article 32 as the most important one, without which the Constitution would be reduced to nullity. It is also

referred to as the heart and soul of the Constitution. By including Article 32 in the Fundamental Rights, the Supreme Court has been made the protector and guarantor of these Rights. An application made under Article 32 of the Constitution before the Supreme Court, cannot be refused on technical grounds. In addition to the prescribed five types of writs, the Supreme Court may pass any other appropriate order. Moreover, only the questions pertaining to the Fundamental Rights can be determined in proceedings against Article 32. Under Article 32, the Supreme Court may issue a Writ against any person or government within the territory of India. Where the infringement of a Fundamental Right has been established, the Supreme Court cannot refuse relief on the ground that the aggrieved person may have remedy before some other court or under the ordinary law. The relief can also not be denied on the ground that the disputed facts have to be investigated or some evidence has to be collected. Even if an aggrieved person has not asked for a particular Writ, the Supreme Court, after considering the facts and circumstances, may grant the appropriate Writ and may even modify it to suit the exigencies of the case. Normally, only the aggrieved person is allowed to move the Court. But it has been held by the Supreme Court that in social or public interest matters, any one may move the Court. A Public Interest Litigation can be filed before the Supreme Court under Article 32 of the Constitution or before the High Court of a State under Article 226 of the Constitution under their respective Writ Jurisdictions. There are mainly five types of Writs (i) (ii) (iii) (iv) (v) Writ of Habeaus Corpus, Writ of Mandamus, Writ of Quo-Warranto, Writ of Prohibition, and Writ of Certiorari. (I) Writ of Habeas Corpus: It is the most valuable writ for personal liberty. Habeas Corpus means, "Let us have the body." A person, when arrested, can move the Court for the issue of Habeas Corpus. It is an order by a Court to the detaining authority to produce the arrested person before it so that it may

examine whether the person has been detained lawfully or otherwise. If the Court is convinced that the person is illegally detained, it can issue orders for his release (II) The Writ of Mandamus: Mandamus is a Latin word, which means "We Command". Mandamus is an order from a superior court to a lower court or tribunal or public authority to perform an act, which falls within its duty. It is issued to secure the performance of public duties and to enforce private rights withheld by the public authorities. Simply, it is a writ issued to a public official to do a thing which is a part of his official duty, but, which, he has failed to do, so far. This writ cannot be claimed as a matter of right. It is the discretionary power of a court to issue such writs. (III) The Writ of Quo-Warranto: The word Quo-Warranto literally means "by what warrants?" It is a writ issued with a view to restraining a person from acting in a public office to which he is not entitled. The Writ of quo-warranto is used to prevent illegal assumption of any public office or usurpation of any public office by anybody. For example, a person of 62 years has been appointed to fill a public office whereas the retirement age is 60 years. Now, the appropriate High Court has a right to issue a Writ of quo-warranto against the person and declare the office vacant. (IV) The Writ of Prohibition: Writ of prohibition means to forbid or to stop and it is popularly known as 'Stay Order'. This Writ is issued when a lower court or a body tries to transgress the limits or powers vested in it. It is a Writ issued by a superior court to lower court or a tribunal forbidding it to perform an act outside its jurisdiction. After the issue of this Writ proceedings in the lower court etc. come to a stop. The Writ of prohibition is issued by any High Court or the Supreme Court to any inferior court, prohibiting the latter to continue proceedings in a particular case, where it has no legal jurisdiction of trial. While the Writ of mandamus commands doing of particular thing, the Writ of prohibition is essentially addressed to a subordinate court commanding inactivity. Writ of prohibition is, thus, not available against a public officer not vested with judicial or quasi-judicial

powers. The Supreme Court can issue this Writ only where a fundamental right is affected. (V) The Writ of Certiorari: Literally, Certiorari means to be certified. The Writ of Certiorari is issued by the Supreme Court to some inferior court or tribunal to transfer the matter to it or to some other superior authority for proper consideration. The Writ of Certiorari can be issued by the Supreme Court or any High Court for quashing the order already passed by an inferior court. In other words, while the prohibition is available at the earlier stage, Certiorari is available on similar grounds at a later stage. It can also be said that the Writ of prohibition is available during the tendency of proceedings before a sub-ordinate court, Certiorari can be resorted to only after the order or decision has been announced. There are several conditions necessary for the issue of Writ of Certiorari, which are as under: (a) There should be court, tribunal or an officer having legal authority to determine the question of deciding fundamental rights with a duty to act judicially. (b) Such a court, tribunal or officer must have passed an order acting without jurisdiction or in excess of the judicial authority vested by law in such court, tribunal or law. The order could also be against the principle of natural justice or it could contain an error of judgment in appreciating the facts of the case.

Article 352: Proclamation of Emergency - due to external intrusion or war the President of India can declare a state of emergency through a Proclamation. This Article suggests that such a Proclamation can be revoked or a varied Proclamation can also be issued. However, the decision of the Cabinet ministers to issue such a proclamation must be sent to the President in written form prior to his issuance of the same. According to the Article, all such Proclamations should be presented to both the Houses of the Parliament. The Proclamations, if not accepted by a resolution, will be counted as ineffective after one month. If the Proclamation is

not accepted after the passing of a second resolution, then it will become ineffective after the expiry of 6 months of the second resolution. It is also mentioned in the Article that not less than two-thirds of the members of any of the Parliamentary Houses should be required to pass a resolution. There are certain rules specified in this Article regarding the President revoking or issuing a varied Proclamation during Emergency. Article 353: Effect of Proclamation of Emergency - this Article states that the Proclamation of Emergency includes extending the executive power of the union to the states in the form of directions. The Parliament, as per this Article, can confer the power to make laws, upon the officers or authorities of the Union. Article 354: Application of provisions relating to distribution of revenues while a Proclamation of Emergency is in operation provisions made under Articles 268 to 279 can be modified or exceptions can be made by the President of India by an Order while the Proclamation period of emergency is going on. Information about all such Orders must be conveyed to both the Houses of Parliament. Article 355: Duty of the Union to protect States against external aggression and internal disturbance - this Article states the fact that the Union or Center is solely responsible for defending the various states from all types of violence and aggressions erupting from outside and disturbances occurring within the nation's territory. Article 356: Provisions in case of failure of constitutional machinery in States - the President of India can take charge of a state if the reports submitted to him by the Governor suggest that the government of the state has become incapable of exercising the Constitutional powers. The President is also subjected to exercise the powers of the government of such state by Proclamation. The Proclamation issued under such circumstances become ineffective after 6 months from the date of issuance, if not revoked during this time period. All such Proclamations have to be presented to both the Houses of Indian Parliament and will expire after two months. The Legislative powers of such state shall also be exercised by the Parliament. In the Houses of Parliament there are certain rules and regulations regarding the expiry of the Proclamation and

the time period normally depends upon the fact whether it has been revoked earlier or not. Article 357: Exercise of legislative powers under Proclamation issued under article 356 - the powers of the Legislature shall be exercised by the Parliament during emergency. The Parliament has the right to delegate Legislative powers to the President of India or any such authority. The President of India, after the Proclamation of Article 356, can make laws and shall have access to the consolidated fund during the time period when the House of the People is not in operation. Article 358: Suspension of provisions of article 19 during emergencies - any provision under Article 19 will not be effective during emergency and the states can make law and undertake executive action. However, only those laws and executive actions containing recital related to emergency during the Proclamation of Emergency are effective as per the Article. Article 359: Suspension of the enforcement of the rights conferred by Part III during emergencies - the President of India can suspend all ongoing proceedings in any court of the nation during emergencies by an Order. The President can also call upon all pending court proceedings in case of emergencies. All such orders declaring the suspension of court proceedings have to be submitted to both the Houses of Parliament. Article 359A: Repealed - amendment has been done under the constitution Act 1989 Article 360: Provisions as to financial emergency - a declaration shall be made by the President of India through a Proclamation regarding the financial crisis of the nation if such situation arises. Such a Proclamation can be revoked and has to be presented in both the Houses of the Parliament. The Proclamation thus issued will become null and void after two months if the same is not approved through a resolution passed by the Houses of Parliament. In case the Houses are not in session the Article suggests certain specific guidelines regarding the Proclamation. This Article also includes provisions relating to the salary and allowance reduction of those who are employed with Union and state departments. A provision relating to money bills and other financial bills passed by the state Legislature is mentioned in the Article. This provision states that all

such bills have to be considered by the President during financial instability. Special Provisions Relating to Certain Classes The Constitution of India has listed the special provisions relating to certain classes in Part XVI. From Article 330 to Article 342, the special provisions have been clearly indicated. Below is a detailed list of all the special provisions relating to certain classes:

Article 330: Reservation of seats for Scheduled Castes and Scheduled Tribes in the House of the People - this Article states that a certain number of seats should be reserved in the House of the People for both the Schedule Castes and Schedule Tribes. However, clause b of the Article includes Schedule Tribes excluding those who live in the autonomous districts of Assam. Clause c of the Article includes the Schedule Tribes belonging to the autonomous Assam districts. It is also mentioned in this Article that the total number of such seats assigned to the Schedule Tribes of autonomous Assam districts should match the total number of seats allotted in the House of the People. The seats alloted to the Schedule Castes and Schedule Tribes of a particular state or Union Territory should be proportional to the total number of seats reserved for such state or Union Territory in the house of the People. Article 331: Representation of the Anglo-Indian Community in the House of the People - it is specified in this Article of the Indian Constitution that the President of India has the sole right to elect a maximum of 2 members belonging to the Anglo-Indian section to represent the entire community. Article 332: Reservation of seats for Scheduled Castes and Scheduled Tribes in the Legislative Assemblies of the States - This Article of the Constitution states that a definite number of seats in every state's Legislative Assembly should be alloted to the Schedule Castes and Schedule Tribes. The Schedule Castes and Schedule Tribes of the autonomous districts of Assam are also given seats in the Legislative Assembly. It is also specified that a person not belonging to the Schedule Tribes category of Assam state cannot contest the Legislation Assembly election from any of

the constituencies of the districts of the state. Also, all areas outside the periphery of the districts of Assam should not hold any constituency of the Legislative Assembly of the Assam state. The total seats alloted to the state Legislative Assembly of Assam should be in proportion of the total population and the share of the SC/ST in such population. As per Article332, the number of seats alloted to the SC/STs of a state should follow a proportion to the total number of seats assigned in the Assembly as the total population of the SC/STs in that state with respect to the total state population. In case of such states as Nagaland, Mizoram, Meghalaya and Arunachal Pradesh, as per the Constitution Act 1987, if all the seats of the Legislative Assembly after the first census of 2000, belong to the Schedule Tribes, then only one seat shall be alloted to other communities. Also, the total number of seats alloted to the Schedule Tribes shall not be less than the existing number of seats in the Assembly of the state. The Article suggests that the the total number of seats of Schedule Tribes in the Legislative Assembly of Tripura state should be proportional to the total number of existing seats in the Assembly. As per the Constitution Act 1992, the number of the Schedule Tribe members in the Legislative Assembly of Tripura shall not be less than the total number of seats already available in the Assembly.

Article 333: Representation of the Anglo-Indian community in the Legislative Assemblies of the States - according to this Article of the Constitution of India if the Governor of any state thinks it necessary to elect one representative of the Anglo-Indian community for the Legislative Assembly of that state then he can do the same. Also, if the governor feels that Anglo-Indian community does not have sufficient representation in the state Legislative Assembly then also he can elect one member of that community for the Assembly. Article 334: Reservation of seats and special representation to cease after 289A - This Article holds the fact that after 60 years of the enactment of the Indian Constitution, certain provisions shall

become ineffective. However, it is also specified that the Article will not be applied until and unless the House of the People or the Legislative Assembly gets dissolved because of some significant reason. The Provisions with which this Article deals with include reserving seats for Anglo-Indian community, Schedule Castes and Schedule Tribes in the House of the People or in the Legislative Assembly.

Article 335: Claims of Scheduled Castes and Scheduled Tribes to services and posts - The Article states that the various claims of the Schedule Castes and Schedule Tribes shall be regarded accordingly. Relaxation of age, lower cut off marks and easier parameters of evaluation for the purpose of selecting SC/ST candidates to different posts and services will remain intact irrespective of the provisions mentioned in this Article. Article 336: Special provision for Anglo-Indian community in certain services - as per this Article, for such posts of Union as postal and telegraph, customs and railway, the members of the Anglo-Indian community will be selected, for the first two years of the initiation of the Constitution, following the rules prevailing before 15th August, 1947. It is also specified that in every two years the total number of seats allotted to the Anglo-Indian community in different services and posts will go down by 10%. The Article states that these provisions will become ineffective after 10 years of the enactment of the Indian Constitution. However, clause 2 of this Article clearly mentions that if a candidate of the concerned community is eligible for any post other than the ones mentioned above then he will be selected with immediate effect. Article 337: Special provision with respect to educational grants for the benefit of Anglo-Indian community - the provisions of this Article deal with the fact that grants to the Anglo-Indian community shall be offered in the first three years of the enactment of the Constitution following the same rules made on 31st March 1948. It is also stated that the amount of such grants will reduce by 10% in every three succeeding years. It is mentioned that after 10 years of the initiation of the Constitution of India all such grants will cease to exist. Moreover, the Article states that only when at least 40% of the admissions in educational units belong

to communities other than Anglo-Indians, such grants will be offered to the said community. Article 338: National Commission for Scheduled Castes and Scheduled Tribes - This Article covers the issues to be dealt with by the said Commission exclusively made for the Schedule Castes and Schedule Tribes. As per the Constitution of India, the Article holds that the Commission should include a Chairperson, ViceChairperson and other members all of whom are elected by the President of India. The Commission, according to the Article, has the power to investigate all matters that are related to the safeguard of the Sc/STs. The commission can also exercise its power by summoning any person from any part of the nation to interrogate him regarding a particular issue of the SC/STs. The Commission shall also take necessary measures to improve the socioeconomic status of the Schedule Castes and Schedule Tribes. A report specifying whether the safeguards of the ST/SCs are maintained properly shall be submitted to the President of India every year by the Commission. Article 339: Control of the Union over the administration of Scheduled Areas and the welfare of Scheduled Tribes - the Article suggests that a Commission specifying the administration of Scheduled Areas and Welfare of Scheduled Tribes shall be formed by Order of the President after 10 years of the Indian Constitution's enactment. The various procedures and powers of the commission are to be included in the said Order. Planning and execution of various schemes pertaining to the development of the Schedule Tribes included in the executive power of the Union is also mentioned in the Article. Article 340: Appointment of a Commission to investigate the conditions of backward classes - this Article specifies that the President of India can form a Commission by Order that will look into the overall condition of the people belonging to the backward classes. This Commission is also supposed to recommend any state or union the necessary steps through which the underprivileged classes can improve their social and economic status. On the basis of the investigation done, the Commission shall submit a report to the President of India. The President, in turn, shall present such report with a memorandum to both of the Houses of the Indian

Parliament and will prescribe the necessary steps to be taken to develop the condition of the backward classes. Article 341: Scheduled Castes - this Article states that the President of India after taking the advice of the Governor of any state or Union Territory, has the right to demarcate tribes, races or castes or a part of any group as Scheduled Castes, in accordance with the law of the Constitution. The president can do the same by issuing a public notification. However, the Parliament of India can, by law, accept or reject the list containing the Scheduled Caste groups. Article 342: Scheduled Tribe - a group belonging to a tribe or an entire tribal community of a state or an Union Territory can be declared as Scheduled Tribe by the President of India through issuing a public notice. The President consults with the Governor of the concerned state or Union Territory before specifying a tribe as Scheduled Tribe. The Parliament of India can decide upon canceling or keeping the particular ST in the list of Scheduled Tribes. However, the public notification issued for declaration of the Scheduled Tribe can be saved by the Parliament.